Impeachment March,” Master Steve Rapport

On September 24, 2019, US Speaker of the House Nancy Pelosi announced a formal impeachment inquiry into President Donald Trump, prompting a national debate some 501c3s may wish to join. While the IRS gives no direct guidance on what 501c3 public charities can do or say to support or oppose impeachment, there are related laws that speak to possible risks.

501c3 public charities are able to engage in a limited amount of lobbying but are strictly prohibited from engaging in any activity that suggests support or opposition for a candidate for public office. Although there is no direct IRS precedent on this, calling for the impeachment or resignation of an elected public official is probably permissible for 501c3 public charities as long as they do not comment on who should be elected to succeed the ousted official. Since a vote of a legislative body is required, the activity would likely be treated as lobbying, counting toward the 501c3’s lobbying limits.

But—and this is a big but—if the impeached official is running for elected office during the impeachment inquiry or trial, as is the case with President Donald Trump, the 501c3 should consider all of the facts and circumstances to avoid looking like it is supporting or opposing a candidate for public office.

The process

Impeachment is a constitutional power held exclusively by Congress as a check on officeholders in the executive and judicial branches. Article I of the US Constitution sets the process where the House of Representatives investigates and votes on whether an accused person has committed an act worthy of removal from office. Following a simple majority vote of the House, the matter goes before the Senate for a quasi-judicial trial where conviction requires a two-thirds vote. Although most people think of impeachment in the context of ousting a sitting president, impeachment has primarily been used to remove federal judges, most recently in 2010.

Unique process meets unique restrictions

Impeachment is unique in that it is not an electoral event, but it directly impacts who holds office. It is also not a typical act of Congress; the House of Representatives passes articles of impeachment, and the Senate holds a trial, presided over by the Chief Justice of the United States, to determine whether to convict.

Once the decision has been made to weigh in, would it be considered lobbying?

It’s likely the IRS would classify a public charity’s impeachment advocacy to be lobbying. The act is not strictly legislative in nature, but legislative bodies are voting in a manner that is similar to the Senate advice and consent process for executive branch appointments—an act that the IRS has defined as “specific legislation” for purposes of the lobbying rules.

Assuming the IRS would apply the rules similarly for impeachment, a 501c3 that has made the 501h election that directly advocates for or against impeachment of a federal officeholder to members of the House of Representatives, or takes a stance on conviction to Senators during the trial phase, would be engaged in direct lobbying and should track expenses related to their communications. Should the organization direct its energies to the general public and include a call to action to contact relevant members of the House or Senate, the expenditures should be classified as grassroots lobbying and reported to the IRS in that year’s Form 990. Organizations that use the insubstantial part test should report all activities on their Form 990.

Is it prohibited election activity?

At first blush, it appears that a 501c3 taking a stance on impeachment is free and clear of federal tax law’s prohibition on partisan electioneering. After all, the election was in the past (if there was one at all—federal judges are appointed and never elected).

However, the ban on electioneering for 501c3s is viewed through the lens of an IRS facts and circumstances analysis. When a 501c3 public charity supports or opposes impeachment of an officeholder who is running for elective office during the impeachment process, it should take care that the timing and nature of their communications do not serve as an implicit endorsement or opposition to the reelection of the candidate. A 501c3 appears less likely to be supporting or opposing the accused officeholder as a candidate if:

  • it has a track record of opinions on the policy stances of the accused officeholder;
  • it does not mention the impeached official’s candidacy or opponents; or
  • the support for or opposition to impeachment is not made close to the election.

A 501c3 is taking on greater risk of being perceived as tacitly endorsing or opposing the accused official as a candidate if:

  • it has no or a minimal track record of opinions on the policy stances of the accused officeholder;
  • it mentions the impeached official’s candidacy or opponents; or
  • the support or opposition to impeachment is made close in time to the election.

If the accused or impeached official is not running for any office, 501c3s are free to engage without fear of triggering IRS attention for partisan election activity.

To be clear, the IRS has not released bright line rules on impeachment advocacy. Absent guidance, 501c3s would be best served to proceed cautiously and seek legal advice when considering whether to publicly weigh in on the impeachment of an officeholder who is running for reelection.

Tim Mooney is senior counsel with the Bolder Advocacy Program at Alliance for Justice. He provides one-on-one technical assistance for nonprofit advocates, teaches nonprofit and election law workshops and writes on these issues for Bolder Advocacy publications.