June 12, 2007

IRS Draws Lines for Political Advocacy

Almost every election season, some number of colleges or campus officials stand accused in one way or another of inappropriately trying to influence a political campaign. During the last presidential campaign, for instance, some colleges called off speeches by the filmmaker Michael Moore amid complaints that his talks would essentially be campaign commercials for left-wing candidates.

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As the 2008 campaign begins to heat up, the Internal Revenue Service — which is responsible for carrying out federal tax law that restricts political activity by nonprofit organizations — has issued guidelines aimed at giving colleges and other tax-exempt organizations practical advice about where the lines are and how not to cross them.

The guidance, which comes in the form of a revenue ruling that has formal legal standing, lays out 21 actual situations, in areas such as voter education efforts, candidate appearances and issue advocacy — that raised questions about whether the activity a charitable organization engaged in should be considered inappropriate participation in a political campaign. Although the underlying laws and regulations are longstanding, the IRS document is an effort to formalize what have been “pretty subjective” standards about what’s allowable (or not), said Bertrand M. Harding Jr., a tax lawyer who specializes in nonprofit issues. “These offer insight into the question of ‘Does this cross the line or not cross the line?’ in fairly helpful fashion,” Harding said.

Three of the case studies — which as is typical of IRS publications, do not identify the involved parties — directly involve colleges or universities.

In one, a university president wrote in his monthly column in an alumni newsletter ("My Views") that “[i]t is my personal opinion that Candidate U should be reelected.” Although the president used personal funds to pay for the cost of his column in that one issue, “the newsletter is an official publication of the university. Because the endorsement appeared in an official publication .... it constitutes campaign intervention” by the university, the IRS concludes.

In another instance involving an alumni publication, the IRS concluded that a reference in an alumni notes column that said that a graduate “is running for mayor of Metropolis,” but does not “contain any reference to this election or to [the alumnus’s candidacy] other than this statement of fact,” does not amount to intervention in a political campaign.

Lastly, the IRS document discusses a full-page advertisement taken out by a university in several newspapers in its state. The advertisement, appearing a few weeks before a party primary in a U.S. Senate election, discusses a bill that would help state residents attend college and notes that the state’s U.S. senator had opposed similar legislation in the past. It ends with the statement, “Call or write Senator C to tell him to vote for S. 24.” Although the ad appears soon before the election and notes that the senator’s position differs from the university’s, the institution “has not violated the political campaign intervention prohibition because the advertisement does not mention the election or the candidacy of Senator C, education issues have not been raised as distinguishing Senator C from any opponent, and the timing of the advertisement and the identification of Senator C are directly related” to the legislation discussed in the ad. “The candidate identified ... is an officeholder who is in a position to vote on the legislation.”

Although the other examples cited in the IRS letter involve other kinds of tax-exempt and charity groups, some of the issues they raise could easily apply to colleges and universities. Here’s a quick look at the situations described and the outcomes, broken down by the types of activity in question:

Voter Education and Registration

• A nonprofit group that promotes community involvement does not engage in political campaign intervention when it sets up a booth at a state fair to register citizens to vote without making reference to any candidate or party. But a nonprofit group that educates the public on environmental issues does engage in political campaign intervention when it sets up a telephone bank to call voters in the district of a state legislative candidate and tells voters who appear to agree with the candidate’s position to be sure to vote — but politely thanks those who do not share her views, ending the calls.

Individual Activity by Nonprofit Leaders

• The chief executive of a nonprofit hospital is among five health care industry leaders who personally endorse a candidate in a local newspaper advertisement. In the ad, which the candidate’s campaign has paid for, the president is listed as the CEO of the hospital, but the ad says: “Titles and affiliations of each individual are provided for identification purposes only.” The IRS’s conclusion: “Because the ad was not paid for by Hospital J, the ad is not otherwise in an official publication of Hospital J, and the endorsement is made by President A in a personal capacity, the ad does not constitute campaign intervention by Hospital J.”
• A church minister attends a news conference at which he calls for the reelection of a candidate; a local newspaper’s report on the endorsement identifies him as the minister at his church. The IRS conclusion: “Because Minister C did not make the endorsement at an official church function, in an official church publication or otherwise use the church’s assets, and did not state that he was speaking as a representative of Church L, his actions do not constitute campaign intervention by Church L.”
• At a meeting of the board of directors of a nonprofit conservation group shortly before an election, the board’s chairman says, “It is important that you all do your duty in the election and vote for Candidate W.” The IRS conclusion: Because the perceived endorsement “were made during an official organization meeting, they constitute political campaign intervention” by the nonprofit group.

Candidate Appearances

• The IRS gives its stamp of approval to a historical society that invites three Congressional candidates to speak to its members in successive weeks to talk about a wide variety of topics, given that the group does not discuss the candidates’ qualifications or express a preference for any of them.
• A church invites only one of several candidates in a Senate election to speak to its congregants, and the candidate says: “I am asking not only for your votes, but for your enthusiasm and dedication, for your willingness to go the extra mile to get a very large turnout on Tuesday.” The IRS conclusion: “By selectively providing church facilities to allow Candidate X to speak in support of his campaign, Church O’s actions constitute political campaign intervention.”

(In a related development, the American Association of University Professors is offering its own advice to campuses about how to respond to the prospect of playing host to controversial speakers during election season — and encouraging them not to just cut and run. The faculty group, which was influenced by several colleges’ decisions to disinvite Michael Moore from their campuses during the 2004 election, is condensing a proposed revision of its policy on controversial political speakers into a short and easy to read statement, with the hope of emboldening college leaders to encourage invitations to controversial speakers and not to feel as if they just balance them, person by person, with a speaker with an opposing viewpoint.)

Appearances by Candidates in Non-Candidate Capacities

• The IRS finds no political intervention in cases in which (1) the chairman of a hospital board invites a local Congressman who is running for reelection (when are they not?) to a ground breaking ceremony and no mention is made of his candidacy and (2) the lieutenant governor running for governor attends a meeting of a historical society and is welcomed by the society’s president. But when the mayor of a city attends a free concert performed by a local symphony, and the symphony’s board chairman tells the crowd that such concerts would not be possible without the mayor’s support and that they should therefore “support Mayor G in November as he has supported us,” the symphony has engaged in political intervention, the IRS says.

Issue Advocacy

• Just before a gubernatorial election in a given state, a nonprofit education group undertakes a radio advertisement calling for more funds for education there, and ends with: “Tell Governor E what you think about our underfunded schools.” (The governor’s opponent has urged greater funding of public education and criticized the governor’s veto of a tax increase the previous year.) The IRS conclusion: “Organization R has violated the political campaign prohibition because the advertisement identifies Governor E, appears shortly before an election in which Governor E is a candidate, is not part of an ongoing series of substantially similar advocacy communications by Organization R on the same
  issue, is not timed to coincide with a non-election event such as a legislative vote or other major legislative action on that issue, and takes a position on an issue that the opponent has used to distinguish himself from Governor E.”
• Before an upcoming election in which two state senate candidates take differing stances on a hotly debated mass transit project, the head of a nonprofit group that supports community development gives a speech at a fund raising dinner in which he urges the organization’s members to make a “very important choice” in favor of “new mass transit” when they “cast [their] vote in the election for your state senator.” The IRS’s conclusion: The group intervened in the political campaign because of the comments taking a position on a prominent issue that “distinguishes the candidates” at an official function shortly before the election.

Business Activity

• A museum that rents out its historic building to the public on a first-come, first-served basis did not engage in political intervention when it rents the facility to a candidate for a fund raising dinner. But a theater that has never rented its mailing list to a third party, yet does so to the campaign committee of a candidate who supports increased funds for the arts, did engage in inappropriate political intervention, the IRS found.

Web sites

• A nonprofit group that posts a nonpartisan voter guide on its Web site is allowed to link to the candidates’ own Web sites in ways that are similar for all candidates, the IRS said.
• A church whose Web site features information about its ministers and congregants intervened inappropriately in a political campaign when it posted a message that said of one of its congregants, who was running for a seat on the town council: “Lend your support to B, your fellow parishioner, in Tuesday’s election for town council.”

— Doug Lederman

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