The District of Columbia Bar Association Exempt Organizations Committee held a meeting recently that focused on legal issues in an election year. IRS attorney Judith Kindell explained to those attending the meeting that, “Organizations don’t have to stop lobbying campaigns simply because of an election.” Referring to groups exempt under Section 501(c) of the tax code, including charities, social welfare organizations, unions and trade associations, Kindell cited recent IRS Revenue Ruling 2004-6, which explains factors the IRS uses to distinguish between genuine issue advocacy and advocacy meant to influence elections. Nonprofits that lobby public officials on specific issues do not have to stop their efforts when those officials are up for re-election, as long as their efforts do not imply support for or opposition to the official as a candidate. James Joseph, an attorney with Arnold and Porter who spoke about the rules regarding sponsorship of nonpartisan candidate debates and forums, said the ruling is “one of the best rules written for Section 527 organizations,” whose primary exempt purpose is to influence elections. The examples detailed when the IRS will consider public communications to be “exempt” for 527 purposes, which means they are intended to influence elections and, therefore, are not condoned activities for 501(c)(3) organizations. In the ruling, guidance is given to define electioneering communications as those that are:

• made during a time that coincides with an election
• identify a candidate
• target voters in a particular election
• identify a candidate’s position on an issue
• distinguish the candidate’s position from others (in the communication or in the overall campaign)
• not part of an ongoing series of substantially similar advocacy on the same issue.

The guidance given also identifies communications that are genuine issue advocacy as ones that:

• identify specific legislation or a specific event outside the control of the organization
• are timed to coincide with the specific event
• identify the candidate solely as a government official in a position to act on the policy or specific event
• mention the candidate solely as the a key sponsor of legislation.

Joseph also told the audience that candidate briefings held by 501(c) organizations, including charities, should be impartial. This means all legally qualified candidates should be invited to participate, the moderator should be impartial and present questions relating to a wide variety of issues. Each candidate must have an equal opportunity to respond. “Voter registration drives,” said Joseph, “should not refer to specific candidates or parties, unless all are mentioned. They should also address a wide variety of issues.” Attorney Beth Kingsley of Harmon, Curran, Speilberg and Eisenberg said additional rules apply to federal elections under the Federal Election Campaign Act. This includes restrictions on paid broadcast advertising 60 days before a general election or 30 days before a primary election or nominating conventions.