Before the ubiquitous use of social media, managers and board members of 501c3 organizations would have had a hard time unintentionally “lobbying.” Communicating a political position used to require big spends like radio or TV ad buys, press release circulation, or printing posters and leaflets for distribution. Now, however, a post(s) by a nonprofit manager or board member on Facebook, Instagram, Twitter, or YouTube could expose a 501c3 organization to risk of noncompliance with IRS lobbying rules. Therefore, organizations should learn some of the IRS’s “lobbying” rules of the road. Note, other entities, like the FEC and various state agencies, also regulate political speech, but this article limits its analysis to those rules found in the Internal Revenue Code.
All nonprofits should learn the definition of “lobbying” before adopting social media policies for any of its affiliates, including its board members and managers. An organization may engage in “direct lobbying” or “grassroots lobbying.” Organizations directly lobby when they both communicate their viewpoint and request an action from those who draft and/or enact the relevant laws. Organizations engage in “grassroots lobbying” when they both encourage others to communicate a viewpoint and request action from those who draft and/or enact laws. For example, stating, “Citizens of State X, vote for Ballot Initiative 10 in the next election,” is direct lobbying (because every citizen voting for/against the ballot initiative is a “legislator”); and stating, “Citizens of State X, call Sen. Doe at [phone number] to get them to vote for Bill 10 in the next legislative session,” is grassroots lobbying.
Note, “lobbying” does not include non-partisan, education, and research activities relating to matters of public policy (e.g. a whitepaper on climate change without reference to a specific law or candidate).
If a board member or manager “lobbies,” as defined above, even on their personal social media pages (or elsewhere), the charity should consider whether the IRS could interpret that activity to be a “substantial part” of the nonprofit’s overall activities, thereby risking revocation of its 501c3 status. The policies articulated below contemplate a nonprofit subject to the “no substantial part” test referenced above.
No Substantial Part Test
Unfortunately, the IRS and much of the relevant caselaw has not clearly defined when lobbying constitutes a “substantial part” of a nonprofit’s activities. The analysis does include, among other things, time spent by the organization’s board and managers. Thus, organizations should consider:
- how managers and board members communicate in social media (both on their own pages and others);
- the organization should maintain disclaimers across its social media accounts;
- track the time and publicity of political statements made by charity leadership; and
- if all this seems confusing, consider the “expenditure test” as an alternative to the “no substantial part” test.
First, organizations should adopt clear policies about how managers and board members interact with others’ posts. This policy should cover leadership interaction on their own pages and on others’ pages.
On their own pages, charity leadership should include, in their bio or other permanent location, a statement that the opinions and statements of the individual manager or board member does not reflect the views of the organization. While the IRS does not automatically attribute every statement made by a manager or board member to an organization, an abundance of caution, in this context, makes sense. Note, even if a board member or manager does not make affirmative political statements, selectively promoting, removing, or commenting upon others’ posts on their own pages may be considered a form of “lobbying.” So, it is advisable to maintain a disclaimer whether that manager or board member plans on commenting upon elections or legislation.
On others’ pages, a nonprofit’s social media policy should caution or prohibit “liking,” “retweeting,” or supporting political posts or posts with website links, even if they are non-political. Websites are dynamic. So, an apolitical “like” or “retweet” may become political when the owner of the linked site changes the “liked” or “retweeted” page. If a board member or manager feels compelled to engage in political discussions on social media, they should ensure that, in addition to their bio disclaimer, each post has a disclaimer that their statements do not express the views of the nonprofit.
In short, when adopting social media policies for charity leadership, organizations should ensure that board members and managers clearly articulate when they speak for themselves and when they speak for the organization.
Second, because board member and manager statements will be viewed in the context of the organization as a whole under the “no substantial part” test, the organization should also maintain disclaimers across its social media accounts. The disclaimer should state that the opinions or statements made by all charity affiliates (but especially pointing out the leadership) belong to those individuals personally and that no one should attribute them to the nonprofit. If board members and managers make political comments on their own social media pages, the organization should take care when mentioning them on social media to ensure that the organization is not incorporating personal, political views into their organization’s social media.
Third, track all time spent by board members and managers on political issues. If a board member or manager spends a considerable amount of time on social media making political statements, and those statements are attributable to the nonprofit, the organization may come closer to having “lobbying activities” construed as a “substantial part” of their operation.
Fourth, if these policies would be difficult to adopt and/or enforce, consider electing the “expenditure test,” analyzed under IRC § 501h, a viable alternative that has clear cut rules based on a scale directly related to a nonprofit’s total expenditures.
To the extent board members and managers get excited about participating in certain campaigns (electoral or regarding a specific issue), they must have clear boundaries around their personal statements and those made on behalf of the organization.
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Sekou Campbell (email@example.com) is a partner with the New York offices of Culhane Meadows PLLC. His practice includes corporate law, intellectual property law, and real estate transactions.