HARMON CURRAN NONPROFIT LAW BLOG

With a formal impeachment inquiry now under way in the House of Representatives, many nonprofits are wondering if they can call for impeachment, and/or conviction in the Senate. For a 501(c)(3) organization, the key question is whether this advocacy will be treated as prohibited intervention in a political campaign.

The IRS has never provided clear guidance on this question, but the general consensus seems to be that impeachment is a legislative process, not an electoral one, and as such 501(c)(3)s may advocate for or against impeachment or removal from office. However, this does not mean that anything goes. Where the target of the impeachment inquiry is, like Donald Trump, an incumbent office holder seeking reelection, any advocacy around impeachment must be careful not to sound like it is also support for electoral defeat.

This may be a difficult line to walk, because advocating for removal is inherently also going to be a reflection of the person’s (lack of) fitness for office.  However, if there is no reference to the election or campaign, it should be possible for a charity to urge a rigorous impeachment inquiry, and to opine as to whether certain acts constitute impeachable offenses.

At the same time, because this is a legislative process, these organizations should be mindful of their lobbying limits. Because the regulations under the expenditure test define “legislation” to include “action by Congress”, calls for impeachment constitute expressing a viewpoint on specific legislation. A charity that has made the 501(h) election and calls for impeachment in the House or conviction in the Senate will likely need to count that activity as lobbying if it conveys those opinions directly to members of Congress or their staff, or if it expresses the opinion to its members or the public and includes one of the specifically defined grassroots lobbying calls to action. For more information on lobbying definitions and limits for 501(c)(3)s, please visit this fact sheet from Bolder Advocacy.

Electing public charities should also note that impeachment will almost certainly be a “highly publicized” legislative action, so public messaging on the process will be subject to the special rule for paid mass media ads if it occurs within two weeks before a legislative vote.

A charity advocating for impeachment should also keep in mind that for the conduct to fit within the 501(c)(3)’s charitable purpose, it must be germane to the organization’s public or community benefit purposes, and not simply driven by a partisan desire to remove a person from or keep a person in office.