Can Nonprofit News Endorse Political Candidates?
The short answer to the question posed in the headline, of course, is “no.” The question occurred to me because the Institute for Nonprofit News has a new report out describing the state of the nonprofit Fourth Estate. Here is a snippet from the Executive Summary.
Growth of the nonprofit news sector can be measured across a variety of indicators, including the numbers of INN members, total revenue, philanthropic revenue, staffing size and audience reach. Collectively, these measures indicate the field is robust, increasing in capacity and influence.
In the past, some observers have wondered whether capital support would increase to match the needs of a growing nonprofit news sector. This year’s revenue estimates suggest that as the nonprofit journalism field expands, the resources to sustain this field are expanding, too.
INN membership saw 17% growth in the number of digital-first news outlets between 2021 and 2022. That growth did not translate into more competition over a static or shrinking pool of resources. We estimate that fieldwide revenue for INN members grew about 19% in the same period, now totaling to just under $500 million.
Should there be an exception allowing nonprofit newspapers to endorse candidates, like real newspapers? Print media, thoroughly on the outs these days, is probably the last bastion of objective information. Its all relative, of course, but print media doesn’t so thoroughly indoctrinate by even the selection and ordering of stories. By print media, I mean the daily general circulation newspapers. The Washington Examiner as well as the Washington Post. Even papers with an identifiable political philosophy, like the WSJ or the Times, have news staff who are content to tell readers what happened. I am not suggesting that news reporters, as opposed to editors, are without bias. But that sort of bias is inevitable and tolerable. By the way, here is an excerpt from “A Brief History of Newspaper Endorsements.”
While [endorsements] were once ubiquitous, they’ve faded in recent decades; a survey by Editor & Publisher showed that by 1996, almost 70% of newspapers weren’t endorsing presidential candidates as opposed to just 13.4% during the 1940 election cycle. Part of this is probably a reluctance to engage in partisan politics, but it also probably speaks to the decline of the newspaper as a central aspect of Americans’ lives. With so many avenues available for voters to get to know the candidates, it seems rather quaint to think of anyone voting how an editor tells them to. Nevertheless, endorsement of candidates persists.
Print media endorsements made a rebound around 2016 when the OrangeFuhrer ran for president and called all of media “fake news.” Newspapers and magazines that had rarely, if ever, endorsed a candidate, issued loud warnings against a candidate who challenged the Fourth Estate’s very legitimacy. “Don’t believe a word they say!” was his successful rally cry. Were they protecting their own, or were they employing their superior fact gathering skills to provide editorial analysis useful to the public good? Whatever the case, that most endorsed Hillary only proves their scant influence. Even so, the endorsement are useful not just today but years from now when historians are wondering how we lost our damn minds.
So should we provide a legislative or regulatory exception to the prohibition against campaign intervention for nonprofit news? The way we do for churches — trust me, churches can get deep into political campaigns, we are only fooling ourselves to think otherwise. An exception for nonprofit news, though, would best be be permitted by legislative fiat not the Constitution or a judge interpreting same. Something like, “For purposes of subsection (c)(3), an endorsement by a news gathering organization shall not be treated as prohibited campaign intervention.” We probably would need a good amount of other regulations designed to prevent any old rag from calling itself a “news gathering” organizations. I don’t know. It may not even be worth the trouble.
The Californians Gene, Erin and Michele, over at Nonprofit Law Blog — catchy name for a blog but not to be confused with this, the Nonprofit Law Prof Blog — have a concise and helpful primer on current law:
Lobbying and Political Intervention Activities
Unlike their for-profit counterparts, nonprofit news organizations are limited in the amount of their lobbying activities and prohibited from intervening in political campaigns. The lobbying limitation, however, allows for generous amounts of lobbying, particularly if the organization has made the 501(h) election, and does not restrict other forms of advocacy. On the other hand, the political campaign intervention prohibition strictly prohibits activities such as endorsing candidates for public office, making campaign contributions in support of such candidates, and otherwise using organizational assets to preferentially support certain candidates and/or political parties over others.
It’s very common for news organizations to support specific bills and to publish opinion pieces with a view on such proposed legislation. While a nonprofit news organization need not avoid such activities, they will need to track such activities for reporting purposes and ensure that they have not exceeded the permissible threshold.
News organizations also commonly endorse political candidates and otherwise express views that may influence elections. Nonprofit news organization may not make such endorsements and must be careful in avoiding partisan political activities that may be considered electioneering. Such problematic activities include publishing pieces on certain wedge issues in a partisan manner, particularly immediately before an election, even if such pieces do not explicitly endorse or even name a particular candidate.
See:
The Electioneering Prohibition: A Closer Look
501(c)(3) Electioneering Rules: Employee Endorsements & Election Activities
501(c)(3) Electioneering Rules: Candidate Appearances & Debates
501(c)(3) Electioneering Rules: Voter Guides & Candidate Questionnaires
darryll jones