I have been on a whirlwind adventure the past few weeks, hopping around the country from one event to another. It all started in Orlando, when I was honored to present a workshop for folks attending the CareNet annual conference. My topic was timely in this coming election year – how can nonprofit charities exercise their First Amendment rights in light of the tax code and IRS regulations that restrict their ability to speak in the political sphere? CareNet people are passionately pro-life and would love to see pro-life candidates elected.
Charities can participate in lobbying to a limited extent but are absolutely prohibited from supporting or opposing a particular political candidate.
Charities can engage in “issue advocacy,” but need to be wary of traps—candidates talk about issues and plan their campaigns around issues. Frankly, I believe the restrictions are unconstitutional, but people need to be informed and either follow them or be prepared to litigate a test case.
I decided to make it fun – and easy (or at least easier) – to navigate the rules. We all wear different “hats” as we move into different roles in our personal and professional lives. I bought some party hats and gave them names: “Freddie Free Speech” (individual citizen), “Charlie, President of Choo Choo Charities” (official representative of charity), and “Cathy Candidate” (candidate for political office). Once you identify your “hat” and know WHO you are when you speak, you can jump into a series of familiar questions: WHO, WHAT, WHY, WHEN, WHERE, and HOW.
WHO: Are you speaking as an individual citizen (“Freddie”) with First Amendment rights, or as the representative of a charitable nonprofit (“Charlie”)? Do you want to invite a candidate (“Cathy”) to speak at your charity’s event, or simply introduce a candidate who happens to attend?
WHAT: Are you talking about a particular candidate, proposed or pending legislation, or giving a moral exhortation? Many issues overlap the religious/moral and political spheres in today’s world.
WHY: Are you trying to support or oppose a candidate – or legislation you want to see passed (or not)? Are you teaching a Bible study or giving a moral exhortation about an issue like abortion that is also a controversial political issue?
WHEN: Is it close to the time for an election, or a legislative vote?
WHERE: Are you at an official function for a charity you represent, or writing in an official publication for the charity? If so, you can’t remove your “hat.” Are you away from your charity, speaking solely as an individual and not on behalf of the charity? If so, you can put on your “free speech” hat.
HOW: How is the communication financed? How is it presented—does it appear that the charity is biased in favor or against a particular candidate? Has the charity provided an unbiased public forum for candidates—or perhaps given a candidate some advantage it doesn’t offer to others?
This is “food for thought,” as the IRS restrictions require some time to digest. I hope to write a short guide that is reasonably easy to navigate—with a touch of fun.