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Nonprofit Law Prof Blog

Does a Nonprofit’s Campaign Against Trump’s Presidential Candidacy Violate 501(c)(3)?

By nonprofitlawprof

 

What if a charitable organization waged a direct lobbying campaign to convince election officials to declare a candidate unsuitable and bar the candidate from the ballot.  And what if the same organization waged a grassroots lobbying campaign to spur voters to convince election officials of the same thing?  Would either effort constitute campaign intervention validly prohibited by IRC 501(c)(3)? Neither activity would be restricted lobbying because the communications are made to an executive branch official instead of a legislative official.  But does the fact that its not lobbying for tax exemption purposes preclude a campaign intervention violation?  And if it is campaign intervention, is the prohibition unenforceable in this instance under Citizens United?  

Free Speech for People, a 501(c)(3) with a ton of intellectual capital is lobbying state officials to remove Donald Trump from ballots based on a credible but unproven allegation that he fomented insurrection and is thus disqualified from elective office under the Constitution.  It also encourages voters to contact state officials for the same purpose.  I didn’t know how to put this post in some sort of narrative, so I decided to write it up like a brief or memo.  I am not as confident about the 3rd issue as I am the first two.

ISSUES

  1. Whether a 501(c)(3) organization violates the prohibition against campaign intervention by engaging in direct lobbying of state election officials to bar or remove a political candidate from the ballot based on an allegation that the candidate is Constitutionally disqualified.
  2. Whether a 501(c)(3) organization violates the prohibition against campaign intervention by engaging in grass roots lobbying of state election officials to bar or remove a political candidate from the ballot based on an allegation that the candidate is Constitutionally disqualified.
  3. Whether the prohibition against campaign intervention in IRC 501(c)(3) violates the Constitution if it prohibits an exempt organization from engaging in direct or grass roots  lobbying of state election officials to bar or remove a political candidate from the ballot based on an allegation that the candidate is Constitutionally disqualified.   

SHORT ANSWERS

  1. A 501(c)(3) organization violates the prohibition against campaign intervention by engaging in direct lobbying of state election officials to bar or remove a political candidate from the ballot based on an allegation that the candidate is legally disqualified from holding elected office.  Revenue Ruling 2007-41 (Situations 14 – 15)Association of the Bar of the City of New York v. Commissioner.
  2. A 501(c)(3) violates the the prohibition against campaign intervention by engaging in grassroots lobbying of state election officials to bar or remove a political candidate from the ballot based on an allegation that the candidate is legally disqualified. Revenue Ruling 2007-41 (Situations 14 – 15)Association of the Bar of the City of New York v. Commissioner.
  3. The prohibition against campaign intervention in IRC 501(c)(3) probably violates the Constitution if it prohibits an exempt organization from engaging in direct or grass roots  lobbying of state election officials to bar or remove a political candidate from the ballot based on an allegation that the candidate is Constitutionally disqualified.  Citizens United vs. FEC

FACTS

Free Speech for People is probably one of the most transparent exempt organizations I have ever seen.  On its website, you can pretty much find out everything there is to know about its governance and operations.  And it has some legal A-listers serving on its “Legal Advisory Committee.”  The list includes law professors from schools as varied as Appalachian, Berkley, Harvard, and Hofstra, two former state supreme court justices, and other serious activists with impressive credentials. Here is the mission statement:

Free Speech For People works to renew our democracy and our United States Constitution for we the people. Founded on the day of the Supreme Court’s Citizens United ruling, Free Speech For People envisions a democratic process in which all people have an equal voice and an equal vote. We advance this mission with the following innovative, effective, and complementary strategies:

    • We draft and promote key constitutional amendments to restore our democracy by establishing a constitutional right to vote, majority rule (one person-one vote) in the election of the president and vice president, and a constitutionally-mandated public campaign finance system and strict limits on private political contributions and spending; eliminating the judicially fabricated doctrine of corporate constitutional rights; and implementing the ratification of the Equal Rights Amendment;
    • We engage in legal advocacy in the courts to advance a new jurisprudence on money in politics and to confront the misuse of the U.S. Constitution to claim corporate exemptions from our laws;
    • We develop and advocate for model laws and other tools to challenge big money in politics and to make corporations responsible to the public;
    • We challenge corruption at the highest levels of our government and lead bold campaigns for accountability under the law;
    • We fight for free and fair elections, for reliable and secure voting systems, and for the bedrock principle that, in a democracy, all voters must have their votes properly counted.

FSP’s most ambitious project right now is a campaign to keep Donald Trump off the presidential ballot. The group calls it the “14POINT3 Campaign,” after Section 3 of the Fourteenth Amendment.  The 501(c)(3) has written to election officials in 15 states so far asking that they remove Trump’s name from the ballot.  And it encourages voters to contact election officials to urge them to bar or remove Trump from the ballot.  In both instances,  the group articulates detailed allegations that Trump is an insurrectionist not qualified for elective office. Here is the letter’s opening paragraph:

In the months leading up to the January 6, 2021 assault on the United States Capitol, and while his supporters were sacking the Capitol, former President Donald J. Trump incited and facilitated an insurrection against the United States. Mr. Trump has declared his candidacy for president again in 2024. However, under the Fourteenth Amendment to the U.S. Constitution, Mr. Trump is constitutionally ineligible to appear on any future ballot for federal office based on his engagement in insurrection against the United States.  We therefore write to request that you exercise your authority and obligation to exclude Mr. Trump from the ballot. 

The letter provides a detailed, heavily footnoted discussion of the Insurrection clause, and an equally detailed and footnoted proposed order, the penultimate paragraph of which states:

On January 20, 2017, Trump swore an oath to support the Constitution as an officer of the United States, i.e., as president. The events of January 6, 2021 constituted an “insurrection” within the meaning of Section Three of the Fourteenth Amendment, and Trump “engaged” in that insurrection within the meaning of Section Three. Consequently, he is disqualified from holding “any office” under the United States—including the presidency. As a result, he is ineligible to appear on the presidential primary ballot in Nevada.

 

Darryll K. Jones