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Electioneering: rules for private foundations and public charities

By Elizabeth Peters
October 31, 2019

Election season is upon us with the upcoming presidential caucuses and primaries beginning in February and the hundreds of other contests on the national, state, and local levels to be decided next week. During this time, it’s imperative for both foundations and public charities to understand the rules surrounding election-related activities. Charities have an opportunity to engage in important nonpartisan work during elections, such as get-out-the-vote activities, voter registration, and voter education work. At the same time, however, the Internal Revenue Code provides that charities may not “directly or indirectly participate in, or intervene in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” In my experience, this “electioneering prohibition” can be confusing and, at times, steer organizations away from legally permissible nonpartisan electoral activities that advance the mission of their organizations.

Here at the Hewlett Foundation, we require all of our new employees in program roles to take the online training “Electioneering Rules for Private Foundations and Public Charities,” which walks them through the IRS rules surrounding electioneering. Individuals benefit from the opportunity to review real-life case studies of what is and what is not permissible, and see how it relates to their programmatic work. I helped author this course with other members of Learn Foundation Law, a collaboration among legal staff at the William and Flora Hewlett Foundation, the Bill & Melinda Gates Foundation, the David and Lucile Packard Foundation and the Gordon and Betty Moore Foundation to help private foundations and their staff better understand the legal rules in grantmaking.

Unlike some of our courses that focus exclusively on private foundation rules, we also recommend this free, interactive course to our public charity grantees, especially those who don’t have in-house compliance or legal staff. The course is available for free online and does a great job in illustrating real-life examples and scenarios of activities that are permissible and not permissible under the law. For example, a scholarly report that analyzes candidates’ positions on environmental policy and concludes that one position is better than another is not permitted. However, a nonpartisan voter education guide that puts forth all candidates’ views on multiple issue areas and does not endorse one candidate’s position over another is considered permissible. There are host of other permissible nonpartisan activities under the law, including get-out-the-vote drives, voter registration efforts, candidate forums, and voter education guides.

The main purpose of the electioneering training is to empower users to understand what the electioneering prohibition is and where the lines exist between permissible and non-permissible activities. We want our staff, grantees, and all people in the field who take the course to feel comfortable spotting issues, asking the right questions, and taking the appropriate legal steps (including hiring their own lawyer if needed) when it comes to electioneering.

I also wanted to mention that all of Learn Foundation Law’s courses on the legal aspects of grantmaking are available for free at www.learnfoundationlaw.org. Each takes less than an hour to complete and features Maya, an animated foundation program officer who leads participants through each training session. Here is a list of our other courses:

Our goal with Learn Foundation Law is to provide foundation staff and those who work at public charities with important information that can help maximize the effectiveness of their work while staying within the applicable charity’s laws, such as the “electioneering prohibition.”

Tags: Nonprofit law and regulations