IV. Political and Lobbying Activities
- Does providing a hyperlink on a charitable organization’s website
to another organization that engages in political campaign intervention result in per se
prohibited political intervention? What facts and circumstances are relevant in
determining whether the hyperlink constitutes a political campaign intervention by the
charitable organization?
The Need for Guidance
This is a Category Three (3) item. Some guidance would be
helpful, such as through the development of a safe harbors, but definitive guidance is not
currently possible or advisable given the rapidly changing technology and uses of the
Internet. There is no current law on this issue.
Recommendations
We recommend that the IRS issue guidance that establishes the following principles:
A Section 501(c)(3) organization should be permitted to link to candidates’
websites as part of the 501(c)(3) organization’s non-partisan voter education
activities so long as the links are established on a non-partisan basis. For example,
where a Section 501(c)(3) organization publishes a non-partisan voter guide that
otherwise qualifies as non-partisan educational activity, the website should also be able
to provide links to the websites of all qualified candidates, as long as all candidates in
a race are treated equally. Presumably, if some candidates in the race do not have a
website, then the organization should make available phone numbers or addresses where the
user can receive comparable information.
A Section 501(c)(3) organization should be able to link to a broad range of
politically diverse PACs or other political organizations that provide candidate profiles,
voting history and records, and similar information. The relevant fact and circumstance is
whether the Section 501(c)(3) organization is providing access to a broad range of
websites that represents the full spectrum of views. The IRS might provide some examples,
including safe harbors. One favorable example that the IRS might consider is the links
section on LWV.org, the League of Women Voters Website.
Often a Section 501(c)(3) organization and a Section 501(c)(4) organization will be
affiliated, by sharing a common name, some common board members and employees, and even
common offices. A Section 501(c)(3) organization that is affiliated with a Section
501(c)(4) organization should be able to provide a link directly to the
Section 501(c)(4) organization’s home page, particularly if the
Section 501(c)(4) organization also links back to the Section 501(c)(3). The
rule might be different if the Section 501(c)(3) organization provides a link
directly to a portion of the Section 501(c)(4) organization’s website that takes
positions in support of, or opposition to, candidates. The proposed "one link"
safe harbor would permit this type of link.
Sometimes a Section 501(c)(3) organization and a related Section 501(c)(4)
organization will share a website. It would be helpful to have clarity on a shared website
situation. As a safe harbor, the IRS might provide that Section (c)(3) and (c)(4)
organizations that are legally affiliated through common board members and/or a shared
name can share a website if: (a) some pages on the site are shared and others are not; (b)
the shared pages, such as the home page and pages with educational information, do not
contain any statements in support of or opposition to candidates; (c) pages specific to
the Section 501(c)(4) organization’s work or that contain any political
activities are paid for and maintained exclusively by the (c)(4); and (d) the
Section 501(c)(3) organization pays for no more than its fair share of the common
areas of the website. In this context, it may be helpful to think of a website like a
physical office occupied by one or more organizations. A Section 501(c)(3) and a
(c)(4) organization will often share office space and other resources, which is permitted
as long as the Section 501(c)(3) organization pays for no more than its fair share
and does not contribute to any political activities that the (c)(4) organization engages
in.
There may be other situations in which a Section 501(c)(3) organization should be able
to link to a more limited number of websites because those sites provide the comprehensive
discussion of a particular issue, even if other portions of those sites are political. It
would be particularly helpful for charities trying to develop some certainty about their
affairs if the IRS were to adopt some clear rules. The proposed "one link" safe
harbor would permit a Section 501(c)(3) organization to link to the portions of another
organization’s website that contain purely educational content.
A | B | C
| D | E | F | G
- For charitable organizations that have not made the election under
Section 501(h), what facts and circumstances are relevant in determining whether lobbying
communications made on the Internet are a substantial part of the organization’s
activities? For example, are location of the communication on the website (main page or
subsidiary page) or number of hits relevant?
The Need for Guidance
This is a Category Four (4) item. The use of the Internet is
incidental to larger substantive issues, the substantive issues are themselves in need of
administrative interpretation, and the specific circumstances of the use of the Internet
should be addressed only as part of more comprehensive guidance on the underlying
substantive issues.
Existing Authority
Under current law, Section 501(c)(3) organizations that are not private foundations are
permitted to engage in lobbying activities as long as the lobbying does not constitute a
"substantial part" of the organization’s activities. Some public charities
are allowed to make an election under Section 501(h) and have their permitted lobbying
measured by a specific test that looks at their lobbying expenditures. For other
organizations, the election is not available, and some organizations that can make the
election choose not to.
Organizations that do not make the Section 501(h) election are subject to a facts and
circumstances analysis as to whether their lobbying constitutes a substantial part of
their activities. Instead of looking at the level of expenditures, as is the case with the
501(h) election, for these organizations, the IRS looks at the totality of activities, and
there is no clearly defined rule or test. In addition, the definitions of lobbying under
Section 501(h) do not necessarily apply if the election is not made. Accordingly, certain
communications may be lobbying for organizations that do not make the Section 501(h)
election, but not lobbying for electing organizations, and some of the exceptions to the
lobbying definitions for electing charities may not be available for non-electing
charities.
Some of the leading cases and rulings are:
Seasongood v. Commissioner, 227 F.2d 907 (6th Cir. 1955) – suggested that
attempts to influence legislation that constituted 5 percent of an organization’s
total activities, were not substantial. The concept of "activities," however, is
not clearly defined.
Christian Echoes National Ministry, Inc., v. U.S., 470 F.2d 849 (10th Cir.
1972), cert. denied, 414 U.S. 864 (1974) – held that there is no
percentage test.
Haswell v. U.S., 500 F.2d (Ct. Cl. 1974) – held that 16.6 to 20.5 percent
of an organization’s activities on lobbying is substantial. Again
"activities" is not clearly defined.
IRS General Counsel Memorandum 36148 (Jan. 28, 1975) attempts to summarize the law.
Relevant factors include:
- The percentage of time devoted to an activity.
- The amount of volunteer time devoted to an activity.
- The percentage of a budget devoted to an activity.
- The amount of publicity the organization assigns to the activity.
- The continuous or intermittent nature of the activity.
In addition, the IRS looks at the overall impact and effect of the activity.
Recommendations
- The same types of tests that the IRS applies in non-Internet scenarios should apply to a
website analysis. If the same amount of time and energy is put into a website as is put
into other, non-web activities, there is no reason to consider the website lobbying just
because it might have a more broad-reaching audience. Charities should not be penalized
for using the Internet if they spend the same amount of activity and energy on a lobbying
activity that happens to involve the Internet, even if it may have a broader impact than a
non-web activity that involves substantially more time and energy.
- Clearly, concrete guidance on this issue would be helpful. If the IRS is going to update
its formal guidance on the "substantial part" test, then it would be helpful,
indeed essential, also to discuss lobbying on the Internet. Otherwise, guidance with
respect to the Internet alone would not be warranted.
A | B | C | D | E | F | G
- Does providing a hyperlink to the website of another organization that
engages in lobbying activity constitute lobbying by a charitable organization? What facts
and circumstances are relevant in determining whether the charitable organization has
engaged in lobbying activity (for example, does it make a difference if lobbying activity
is on the specific webpage to which the charitable organization provides the hyperlink
rather than elsewhere on the other organization’s website)?
The Need for
Guidance
This is a Category Three (3) item. Some guidance would be
helpful, such as through the development of safe harbors, but definitive guidance is not
currently possible or advisable given the rapidly changing technology and uses of the
Internet. There is currently no law on this question.
Scope of the Question
As with hyperlinks in the context of political activity, exempt organizations could
benefit from guidance on the use of hyperlinks in lobbying situations. There is really no
relevant law directly on point today. This question is very much related to the next
question, which asks whether an organization has made a call to action on a website. For
purposes of this Question D, we will assume that the first organization’s website
contains none of the elements of lobbying itself, and the organization would be considered
to be lobbying only if the activities of the linked website were attributed to it. We also
assume, for purposes of Question D, that the page it is linked to either contains all
three elements of grassroots lobbying or contains none of the elements. The analysis of
Question E, below, considers, among other things, the possibility that the first website
could contain some of the elements of lobbying with the call to action on another website,
or that the second website contains different parts of the lobbying elements on different
webpages.
Recommendations
In order to bring clarity to this question, the IRS should adopt the following
guidelines:
- As a general presumption or rule, the activities of one organization should not be
attributed to another organization. We have to recognize that a link is very different, in
terms of timing and efficiency, from a printed reference to a phone number or address.
Nonetheless, conceptually, a link is no different than a reference in written material to
the name and phone number of another organization – it is simply a more efficient way
of getting from the first location to the second. Charities should not be penalized for
taking advantage of more efficient technology.
- The IRS should adopt the proposed "one link" safe harbor. If a link takes the
user to a webpage that does not itself contain lobbying, and an additional link would be
required to move to the lobbying page, then the link should not create lobbying.
Presumably, with a safe harbor, organizations would structure their affairs to take
advantage of it; for example, by creating multiple webpages within a website, rather than
one continuous webpage. The more attenuated the elements, the less likely the user will
"hear" the lobbying message.
- The above would be a safe harbor. If the webpage to which the user is taken does contain
lobbying, the IRS should examine at least two key facts: (1) the message on the first home
page from which the user was sent to the page that contained lobbying and (2) the
proximity of the lobbying message to the place on the page where the user was taken by the
link. In this case, there would only be lobbying if it were clear that communication on
the first page, combined with the proximity on the second page to the lobbying
communication, would cause a reasonable user to consider the communication to be lobbying.
- A Section 501(c)(3) organization should be able to link to a related
organization’s home page without having the activities of that related organization
attributed to the Section 501(c)(3) organization. In order to take advantage of the
proposed safe harbor, the related entity should not place lobbying on its home page.
- A Section 501(c)(3) and a Section 501(c)(4) or other related organization
should be able to share a website, under the same circumstances described above with
respect to Question B.
Much of the relevance of this issue goes to how we treat the website and what portion
of the costs of constructing the site are included in lobbying, since the Section 501(h)
election looks at actual expenses.
Contents | I | II | III | IV | V
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