Q&A #27 – Can a 501(c)(3) organization have a political candidate speak at its virtual conference?

Question: I am organizing a virtual conference this fall for a 501(c)(3) organization whose mission involves education and advocacy on a particular area of public policy. We would like to have a candidate in the upcoming election speak at the conference about the candidate’s platform on the issues that we focus on. I have heard that this can be allowed if we also invite the candidate from the other party and conduct the event in a non-partisan way. Is this true?

Answer: The safest approach for a 501(c)(3) organization is to avoid having political candidates (or their staffers/surrogates) speak at any organization event, whether virtual or in-person, particularly when the event is so close to an election. There are certain circumstances where this could be allowed, but these circumstances are limited and always subject to a “facts and circumstances” gray area. Merely inviting the other party and conducting the event in a non-partisan way and is not by itself sufficient to make this allowable.

There are two complicated areas of law at issue, briefly summarized as follows:

• First, the Internal Revenue Code prohibits 501(c)(3) organizations from directly or indirectly supporting or opposing a candidate for public office.

• Second, the Federal Election Campaign Act prohibits corporations from making contributions from general funds in connection with a federal election (a candidate’s appearance at an organization event can be considered an “in-kind” contribution to the candidate). Similar state or local laws may apply if the election does not involve a federal office.

IRS Rev. Rul. 2007-41 addresses candidate appearances at 501(c)(3) organization events in some detail. One of the key factors is whether the candidate is appearing in their capacity as a candidate or in some other capacity (such as their capacity as a current government official or legislator, or as an individual engaging in purely philanthropic or religious activities). The rules are somewhat more lenient for candidates who appear in a non-candidate capacity, but the organization would still have to institute numerous safeguards to ensure there is no violation of the rules.

A candidate who is invited to speak about their platform would certainly be appearing in a candidate capacity, and this would typically only be allowed in the context of a non-partisan debate or forum covering a broad range of issues, attended by multiple candidates. Inviting multiple candidates won’t help much if only one candidate shows up, and education/advocacy organizations that focus on one area of policy are particularly at-risk for violating the rules.

The FEC rules are also more lenient when the candidate is appearing in a non-candidate capacity, but this would not apply to your case. And nonprofit organizations are permitted to stage debates, but these have to comply with strict guidelines, see 11 C.F.R. §§ 110.13 and 114.4.

The FEC rules do generally permit organizations to host events by candidates that are attended only by the organization’s voting members, executive and administrative staff, and certain other members of a “restricted class,” but this will be difficult for 501(c)(3) organizations to do under the tax rules. And events that are solely virtual (i.e. online using a platform such as Zoom or YouTube) raise interesting issues regarding the applicability of an exception from FEC restrictions for “communications over the Internet,” see 11 C.F.R. § 100.26, but I would be wary about relying on this, and the IRS rules do not have such an exception.

Planning Tip – 501(c)(3) organizations should strongly consider training their Board and staff on the rules against political campaign activities at the beginning of each major election cycle. It is especially important that organizations working in public policy and advocacy not wait until shortly before the election or primary, because the line between prohibited campaign activities and permitted activities that are core to the organization’s mission are very difficult to navigate and require careful planning and risk assessment.

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