VOTER REGISTRATION,"GET OUT THE VOTE" ACTIVITIES,
VOTER GUIDES, AND CANDIDATE FORUMS AND DEBATES
BY CHURCHES AND EXEMPT ORGANIZATIONS
An organization exempt from income tax under Section 501(c)(3) of the Internal Revenue Code is prohibited from "participating in, or intervening in (including the publishing and distribution of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." Because this is an absolute ban, churches and exempt organizations wishing to engage in voter registration or Get Out The Vote activities must be very careful. Fortunately, numerous IRS publications make clear that voter registration or Get Out The Vote drives will not be considered as "participating or intervening in a political campaign" so long as activities are conducted in a neutral, unbiased and nonpartisan manner. See Election Year Issues, Kindell and Reilly, Internal Revenue Service, Exempt Organizations Continuing Education Technical Instructional Program for Fiscal Year 2002 ("2002 CPE Text"); Internal Revenue Manual, Section 220.127.116.11.11.5 (February 23, 1999). The determination of whether the drive is conducted in a neutral, unbiased and nonpartisan manner is based upon all the facts and circumstances. Id.
Factors to Follow to Insure Nonpartisan Voter Registration
Factors to consider in determining whether a church or exempt organization is "participating or intervening in a political campaign" when it conducts a voter registration or Get Out The Vote drive include the following:
- whether no candidate or all candidates for a particular elective office are named or depicted without favoring any candidate over any other in the voter registration or Get Out The Vote communication;
- whether the communication names no political party, except for identifying the political party affiliation of all candidates named or depicted;
- whether the communication is limited to urging acts such as voting and registering and to describing the hours and place of registration and voting; and
- whether all voter registration and Get Out The Vote drive services are made available without regard to the voters' political preference.
Care must be taken to follow the above guidelines. The IRS has ruled that voter registration materials which referred to a "conservative" agenda and offered specific examples of "liberal" groups and politicians posing threats to that agenda, violated the political prohibition even though the registration materials did not refer to any conservative candidate by name. Tax Advice Memorandum 9117001. Coordinating registration activities with a political committee also violates the political prohibition. Id. Focusing registration efforts on particular geographical areas, however, does not in itself constitute participation or intervention even if it is known that the area contains predominantly supporters of a particular party or candidate. Id. Also, voter registration lists may be used to identify unregistered voters, but no targeting of voters who are registered as belonging to one party or another should be used. Election Year Issues at 379.
Permissible Voter Guides
Churches and exempt organizations may also prepare and distribute voter guides which include all viable candidates for an office, within certain guidelines which must be strictly followed. As with voter registration and Get Out The Vote activities, voter guides must also be neutral, unbiased and nonpartisan, and under no circumstances may it endorse a candidate or direct individuals to vote for or against a candidate. Voter guides should not contain editorial comments about any political party aimed at inducing voters in any particular way.
The specific guidelines are found in IRS Revenue Ruling 78-248, as amplified in Revenue Ruling 80-282, which provides that voter guides must include: (1) the voting records of all incumbent members of the legislative body who represent the local area; (2) the candidates for reelection will not be identified as incumbents; (3) no comment may be made on an individual's overall qualifications for office; (4) no statement may be made expressly or impliedly endorsing or rejecting any incumbent or other candidate for public office may be made; (5) the voting report should not be linked to any election campaign by, for example, widely distributing the voter report on the eve of an election; and (6) the voting report should cover a broad range of issues and not target issues that track the organization's known "agenda." Churches and exempt organizations must also stay away from rating candidates. The IRS' position is that rating candidates is the equivalent of endorsing candidates and clearly violates the political prohibition. Association of the Bar of the City of New York v. Commissioner, 858 F.2d 876 (2nd Cir. 1988); General Counsel Memorandum 39441 (November 7, 1985); Tax Advice Memorandum 963503 (conference of citizens that issued a rating of candidates based on their positions on issues violated the political prohibition).
Candidate Forums or Debates
Churches and exempt organizations may sponsor candidate forums or debates. The fundamental requirement is that candidate forums or debates educate voters and not simply assert the virtues of particular candidates. The standards applicable to voter guides noted above also apply to candidate forums. In addition, IRS Revenue Ruling 86-95 sets forth the following criteria for a candidate forum that educates voters without also engaging in prohibited campaign activities:
- the forum includes "all legally qualified candidates;"
- covers a broad range of issues;
- poses questions presented by "a non-partisan, independent panel of knowledgeable persons;"
- gives each candidate an equal opportunity to present his or her views; and
- the moderator states at the beginning and end of the program that the views expressed are those of the candidates and not of the organization and that sponsorship of the forum does not constitute an endorsement of any candidate by the organization.
A broad range of issues for this purpose is not limited to any particular number. The IRS has held that a forum that covered just three issues, each of which was an important topic in the campaign, was still neutral. Tax Advice Memorandum 9635003. Also, limiting a forum or debate in a primary election to the candidates of one party does not violate the political prohibition. The sponsoring organization does not jeopardize its exempt status by excluding a third party candidate from the two debates among, respectively, the Democratic party candidate and a Republican party candidate. Fulani v. League of Women Voters, 684 F. Supp. 1185 (S.D.N.Y. 1988), affirmed, 882 F.2d 621 (2nd Cir. 1989). However, limiting debate participants to only "significant" candidates in a party primary is impermissible, and is considered a subjective factor. Fulani v. Brady, 809 F. Supp. 1112 (S.D.N.Y. 1993).
While this can be a confusing area of the law, always try to remember two cardinal rules:
- endorsing or opposing a candidate for office is off limits, and should not be undertaken by your church or exempt organization at any level; and
- voter registration, Get Out The Vote, voter guide materials, and candidate debates or forums are fine as long as they are neutral, unbiased and nonpartisan.
If you live by these rules, your church or exempt organization may engage in these activities during the next political cycle.