Most1 American colleges and universities and their foundations are tax-exempt, or notfor- profit, entities. These institutions enjoy many clear benefits as a result of this status, but must follow a raftof special rules and regulations. In this election year, rules governing political activity on campus should be top of mind.
This article will focus on federal law that applies to 501(c)(3) entities. The principles found in these rules are likely echoed in your state's regulations, and as such can be useful to tax-exempt institutions of all stripes and regions.
The Internal Revenue Service (IRS) guidance2 on political activity at 501(c)(3) entities states that these institutions "may not participate in, or intervene in...any political campaign on behalf of (or in opposition to) any candidate for public office." During the election season, it is especially important to be mindful of this restriction.
The IRS language is broad enough to cover an array of circumstances. And because there are no bright dividing lines in the rule, potential violations are evaluated on a case-by-case basis. Past IRS rulings and guidance offer a few common themes.
First, the Good News...
Not all political activity is disallowed.3 After all, civic engagement is an important part of college life, and First Amendment protections come into play. Each of the following activities is allowable under certain circumstances:
* Candidate appearances
* Issue advocacy
* "Arm's-length" business with a candidate
* Use of institutional resources, from curriculum to hyperlinks
* Participation in the election process by employees of the institution
* Voter education, voter registration, and get-outthe- vote campaigns
But It's Complicated...
The Republican presidential debates offer examples of how a candidate's presence on campus must be carefully handled. Several debates this election cycle have been held on college campuses, from Iowa State to Dartmouth. For candidate appearances to pass IRS muster, the institution's neutrality must be maintained; in the case of a debate or similar event, all qualified candidates must have an equal opportunity to appear. If a college invites a candidate to speak in his capacity as a candidate, all legally qualified candidates must also be invited, and if they speak at separate events, favoritism in the quality of those events should be avoided. The host school also has to explicitly state in the candidate's introduction that the institution doesn't support or oppose him or her.
However, the world of higher education touches the world of politics in both obvious and more nuanced ways. As an example, President Barack Obama delivered the commencement address at Barnard College. It was, of course, a special honor for Barnard and its graduates, but it is important to note in this context that he did not appear as a candidate for office, but rather as a sitting public official.
An institution is free to take a policy position, but should avoid tying that policy issue to particular candidates. Even timing an otherwise candidateneutral policy statement too close to an election can be problematic.
Arm's-length business with a candidate:
Business with a candidate, as a rule, must truly happen at a distance. The goods or services sold to one candidate must be available to all candidates and the general public at the same usual fees. It should also be something that's normally offered by the institution, not a special item made available specifically for candidates.
Use of institutional resources:
This category of activity is wide-ranging and demands careful attention. It's acceptable for a school to offer a political science class that gives students time to work on a political campaign-as long as the school makes no attempt to influence student campaign choice. Likewise, even openly partisan student groups may use an institution's facilities without violating any rules, and student newspapers can publish editorial opinions without putting the institution's tax-exempt status at risk. …