Q&A #28 – Can a 501(c)(3) organization engage in public advocacy related to Supreme Court appointments?

Question: I lead a 501(c)(3) organization that is active in an area of public policy that will be impacted heavily by the Supreme Court. With the recent passing of Justice Ginsburg, we would like to publicly advocate our organization’s preferences regarding the next Justice. Are we allowed to do this?

Answer: The answer is generally yes, 501(c)(3) organizations are allowed to advocate for or against the appointment of Supreme Court Justices. This is also generally true for other judicial, cabinet, and administrative positions that are appointed by the executive branch, whether at the federal, state or local level. However, you must be very careful in your communications not to cross the line into endorsing or opposing a candidate for public office in the process. This can be tricky because the line between permissible and prohibited activity is very hazy.

As mentioned in a previous post, the Internal Revenue Code prohibits 501(c)(3) organizations from directly or indirectly supporting or opposing a candidate for public office. However, the IRS has explicitly stated that attempting to influence the appointment of federal judicial nominees is not a political campaign activity. See IRS Notice 88-76. Similarly, the Federal Election Contributions Act would generally not regulate these communications because the appointment of a federal judicial nominee is not a federal election.

Rather, this is potentially a legislative activity (direct lobbying or grassroots lobbying), because the confirmation of a federal judicial nominee requires an act of the Senate. 501(c)(3) organizations are allowed to engage in lobbying activities, subject to limits. And depending on the content of the communication and whether the legislature is involved in the confirmation process, these communications may not fall within the legal definition of lobbying at all. An in-depth discussion of the definition of lobbying and the limits on lobbying activities is beyond the scope of this Q&A but will be addressed in future posts.

It is often difficult in practice to address Supreme Court nominations without crossing the gray line into political campaign activity. This is especially true so close to an election in which a Supreme Court appointment is a major issue dividing the candidates. When discussing federal judicial appointments, you must be careful to avoid any explicit or implicit mention of a candidate or the election. Focus your communications on the nominee and the issues. Do not praise or criticize candidates (including incumbents running for re-election) for their positions on the nominee or talk about the importance of the election in shaping the Supreme Court.

Planning Tip – Be careful when posting links to other websites or social media accounts. Even if your organization’s communications studiously avoided statements that can be construed as political campaign activity, you might inadvertently violate the rules by reposting content from a candidate’s website or social media account or posting links to articles that contain messages for or against a candidate for public office. Make sure that a comprehensive review of all of the underlying material is part of your review process before linking or reposting.

Lastly, keep in mind that endorsing or opposing judges who are elected by the public would constitute impermissible political campaign intervention. This is not the case for Supreme Court Justices or other federal judges, but often is the case for judges at the state or local level.

If you have a question you would like to submit to SE4N, send it to us using the contact form and we will consider answering it in a future post. Please do not send confidential information.