Philip Hackney, University of Pittsburgh
U.S. charities aren’t allowed to campaign for or against specific political candidates. But they can legally engage in nonpartisan voter education and candidate-neutral efforts to get out the vote, as well as voter registration drives.
I’m an expert on charitable tax law who used to work at the Internal Revenue Service.
While testifying before a House subcommittee in December 2023, I explained that these electoral-related activities are consistent with a healthy democracy and don’t violate any U.S. laws.
Some nonprofits like the League of Women Voters have engaged in these nonpartisan efforts for decades. Others, like Nonprofit Vote and Rock the Vote, seek to motivate people of color and young voters to cast their ballots.
It’s hard to find data on how much charitable money funds these causes. But there’s no shortage of conjecture about its possible impact.
The Republican Party has long seen nonpartisan voter registration and get-out-the-vote campaigns as being somehow tied to the Democratic Party or more helpful for turning out votes for Democratic candidates than Republican hopefuls. As far back as the 1960s, Republican representatives accused the Ford Foundation of using voter registration in what they alleged was a partisan manner.
Today, Republican objections and concerns are getting louder. There are GOP efforts underway to make some of these donations illegal.
Because it’s against the law for charities to overtly engage in political activity, any direct politicking tied to these nonpartisan registration drives could jeopardize their tax-exempt status.
These “organizations may encourage people to participate in the electoral process through voter registration and get-out-the-vote drives, conducted in a non-partisan manner,” the Internal Revenue Service states. “On the other hand, voter education or registration activities conducted in a biased manner that favors (or opposes) one or more candidates is prohibited.”
In practice, that means it’s OK if a charity sets up a voter registration booth at a state fair and registers anyone who comes to the booth, regardless of their political leanings. But if a charitable organization runs a phone bank that encourages people to vote only if they agree with a particular candidate’s position, that would break the law.
The Americans who can deduct their contributions to charities from their taxable income – an option generally available today for only the highest earners – can’t do that with the money they donate to political candidates.
The Center for American Progress, a progressive think tank, isn’t allowed to endorse President Joe Biden’s reelection bid. Nor is The Heritage Foundation, a conservative think tank, at liberty to urge voters to support his Republican rival.
Although both of these groups produce political analysis, they are charities and must comply with section 501(c)(3) of the tax code.
This restriction, on the books since 1954, is known as the Johnson amendment because of Lyndon B. Johnson’s insistence on its passage when he was serving in Congress.
Former President Donald Trump tried and failed to get rid of the Johnson amendment for churches and other houses of worship, which the U.S. government lumps together with all other charities.
House Speaker Mike Johnson and other Republican lawmakers would like to go even further than Trump’s proposed change. They have backed the Free Speech Fairness Act, which would practically eliminate restrictions on politicking for not just churches but all charities.
Some conservative preachers, meanwhile, have been flouting the Johnson amendment without eliciting much of a response from the IRS.
At the same time Republicans are trying to significantly weaken restrictions on the use of charitable money for politicking, they are also calling out nonpartisan voter registration and get-out-the-vote efforts as unfair uses of tax-deductible charitable dollars.
The House Ways and Means subcommittee hearing in which I testified focused on the role that some nonprofits are playing in American politics.
Republicans expressed their concerns that charities are engaging in voter registration and get-out-the-vote efforts in communities that might boost the electoral chances of Democratic candidates. Because contributions to charities can be tax deductible, those lawmakers said they are concerned that the federal government is thus being used to further Democratic interests.
Some of them highlighted a memo from Mind the Gap, a Democratic super PAC. According to the memo, donating to charities for voter registration in the 2020 election cycle was “the single most effective tactic for ensuring Democratic victories.”
But as political scientists Daron R. Shaw and John R. Petrocik have observed, seven decades of survey data and election returns “suggest that turnout has no systematic partisan consequences.”
Republican lawmakers are particularly incensed by the over US$400 million in contributions Mark Zuckerberg and his wife, Priscilla Chan, made to two charities to make grants to state and local election administrations to aid those authorities during the COVID-19 crisis.
Conservatives have dubbed this support aimed at ensuring a well-run election system “Zuckerbucks.” A Republican bill pending in Congress would outlaw this kind of spending in the future.
And more than 20 Republican-led states have already barred this private spending on elections within their borders.
However, the Federal Elections Commission, which is responsible for this kind of oversight, has found no cause for concern. In a rare unanimous decision in 2022, three Republican and three Democratic commissioners determined that all complaints of violations of campaign finance law in the case of the Zuckerberg grants were without merit.
Concerns moving forward
As I advised House lawmakers, I believe that drafting any restrictions on the nonprofit sector requires proceeding with great care. Charities make up a part of civil society – a place outside of government and business – where we all have an opportunity to generate important information, develop our opinions and share those with government representatives.
In my view, Congress needs to assess whether any cure it seeks to implement will be better or worse than the disease that it thinks afflicts the U.S. electoral system. Clamping down on nonpartisan voter registration and get-out-the-vote efforts seems to me to be misguided at best.
Congress can, if it wishes to take action, appropriate more funds to ensure that all local and state authorities have the money they need for a well-run election system. That could eliminate the need for donors to step in.
In any case, Congress can help by supporting increases in the IRS budget, especially for the tax agency’s capacity to enforce compliance with the laws pertaining to tax-exempt organizations.
Philip Hackney, Associate Professor of Law, University of Pittsburgh
This article is republished from The Conversation under a Creative Commons license. Read the original article.