Starting and Managing a Nonprofit Organization: A Legal Guide

By Bruce R. Hopkins | Go to book overview

CHAPTER FIFTEEN
Political Campaign Activities—
And More Taxes

Congress and the IRS, as troubled as they are about nonprofit entities’ lobbying activities, are even more concerned about political campaign activities by nonprofit organizations, particularly charitable ones. There are vagaries and uncertainties associated with federal constraints on lobbying activities, but the federal tax law regulating political campaign activities is relatively clear.

An extensive federal statute—the Federal Election Campaign Act—regulates political campaign activity, and a federal agency—the Federal Election Commission—enforces the law in this area. This area of the law was substantially revised by enactment of the Bipartisan Campaign Reform Act, which the Supreme Court, in 2003, pronounced constitutional. The Court, however, has subsequently decided that certain portions of this law are unconstitutional (see Chapter 26). The election laws and the tax laws are clearly separate sets of requirements, yet there is interplay between them. Nonprofit organizations are very much subject to the federal election laws and thus should arrange their activities to conform with those laws as well as the tax laws. State laws operate to regulate intrastate political campaign activity.


POLITICAL ACTIVITIES BY CHARITABLE ORGANIZATIONS

Congress has decreed—flatly—that tax-exempt charitable organizations may not engage in political campaign activity. There may be no other provision in federal or state law concerning nonprofit organizations that has been so repeatedly and conspicuously violated.


(a) General Rules

The prohibition states that charitable organizations must “not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of or in opposition to any candidate for public office.” Coincidentally, this restriction originated in the U.S. Senate, as did the lobbying limitations on charitable organizations (see Chapter 14).

There were no hearings on the restriction, and its enactment can be traced to one senator’s interest in preventing campaign activity (against him) by a particular organization. (As described in Chapter 7, there are separate rules against electioneering that are applicable only to private foundations.)

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