501 (c)(3) Nonprofit Advocacy for U.S. Supreme Court Nominees: Thumbs Up or Down?

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Are nonprofit public charities allowed to advocate for or against Supreme Court nominees? In the aftermath of Justice Scalia’s sudden death, and as the debate over the legitimacy of a presidential appointment during an election year rages on, this question carries particular importance for Section 501(c)(3) organizations involved with public policy issues.  The Court’s increased attention to moral and public policy issues intensifies the perceived importance of getting the “right” next Justice on the Court – that is, one inclined to lean in one direction or the other, depending on one’s goals and perspectives.  Given applicable legal limits on public charities’ politically oriented activities, the answer depends on the context: yes, only within limits, and maybe.

Yes – Certainly!

Section 501(c)(3) organizations must operate under the well-known prohibition against  political campaign activity:  they may not legally seek to influence the election of any political candidate.  This legal prohibition is an absolute bar.  In addition, these organizations may not engage in “substantial” lobbying – that is, efforts seeking to influence the passage or defeat of legislation.  But on the other end of the spectrum – the permissible side – is educational issue advocacy.  Public charities most certainly may advocate extensively to educate the public on all sorts of issues, such as the environment, fiscal policy, health care, religious liberty, and civil rights. 

This overview begs the question:  Where does advocacy about a Supreme Court nominee fall, especially if it involves the nominee’s stances on hot-button issues that come before the Court?  The good news is that during the time period when no prospective nomination is pending, nonprofits enjoy optimal legal flexibility.  They may address the issues of the day that may arrive at the Court’s steps, such as abortion restrictions, campaign finance reform, and union membership.  In addition, nonprofits may openly speculate about potential candidates, particularly but not exclusively, in relation to the organization's mission and goals.  Public charities also may educate and inform the public about constitutional dimensions of the judicial selection process, such as the nomination process, the Senate’s role, and the President’s responsibility.  In short, during the pre-nomination process, nonprofit advocacy for potential Court nominees does not violate politically related legal restrictions.

No, Unless Within Limits

On the other end of the spectrum, once a Court Justice candidate is nominated, any attempts to influence the legislative confirmation process amount to lobbying.  Under applicable law, public charities may engage in “direct” and “grass roots” lobbying.  Direct lobbying involves active communication with legislators, such as a visit to Capitol Hill to seek out supportive Representatives or Senators.   Grass roots lobbying is essentially a “call to action.”  Such efforts consist of rallying others to call their legislators and telling them that certain legislation is favorable or unfavorable.  Because a Court nominee must receive Senate approval, communications about a specified nominee’s suitability constitutes lobbying. 

Nonprofits thus need to carefully monitor their activities regarding identified Court nominees, particularly to avoid crossing over into “substantial” lobbying activities.  Such determination can be elusive, since the term “substantial” is not inherently conducive to bright-line testing.  

One preventive tool is to use a “Section H election,” which is a document filing that allows nonprofit organizations to notify the IRS of intended lobbying activity, within specified financially based thresholds depending on whether the efforts constitute direct or grassroots lobbying.  The penalty for violating the lobbying restriction after making a Section H election is generally the payment of an excise tax.  Such election involves two distinct problems, however.  First, an organization can still cross the line into “substantial” lobbying despite this apparent safe harbor election (e.g., if the organization extensively relies on volunteer activity, which will not show up in its financials.) Second, the Section H election necessitates careful record-keeping regarding an organization’s lobbying efforts, along with annual reporting to the IRS.  Many nonprofits that minimally engage in lobbying efforts prefer to avoid such additional administrative burdens.

Maybe – If It’s Not Really “Lobbying”

Even after a Court candidate is nominated, and aside from any Section H lobbying election, a public charity may determine that its advocacy work is entirely permissible.  That is, it falls within certain parameters beyond lobbying.   For example, the organization may engage in “nonpartisan research and analysis” that, although it addresses issues also within the political realm, does not qualify as lobbying.   In addition, a public charity may respond to a legislator’s written request for “technical advice or assistance,” such as to provide educational information about public policy issues – again addressed within political, legislative contexts.

A final permissible area consists of educational advocacy directed at the general public – not towards specific legislators, and excluding calls to action for listeners or readers concerning certain legislation.   Such opportunities bring a public charity back to its original mission:  to influence peoples’ hearts and minds regarding certain issues, thereby affecting their understandings and causing them to follow the organization’s lead on specific public policy positions. 

Bringing It All Together

Applying these legal concepts, consider a public charity dedicated to protecting human life from before birth, in the womb, throughout one’s life until death (and whether based on science, religious principles, or general notions of morality).   As long as no nominees are pending, the nonprofit may freely speak out about potential Supreme Court nominees to advocate for a candidate who will recognize and uphold its pro-life values.  However, the nonprofit may not advocate for such values with reference to the presidential candidates, since the candidates’ positions regarding abortion rights have become fairly clear and therefore such advocacy likely would influence voters (i.e., for a pro-life candidate or against a pro-choice candidate).   The organization could lobby to a certain extent, either regarding a Supreme Court nominee (once named) or on proposed legislation involving such human rights issue. 

But whether the nonprofit is in the midst of an election cycle, facing a probably contentious Senatorial nominee approval process, or interested in potential state or federal legislation regarding unborn babies, its pro-life mission remains the same as the day it started.  And ultimately, the organization’s most effective efforts may lie where it began.  Seeking to educate listeners and readers about life should – at least indirectly – affect their voting activity.  Education may motivate them to call their legislators about proposed legislation or Court nominees, and it may cause them to take other actions to further the nonprofit’s mission.