[EL] Criticism of candidate by 501(c)((3) during campaign -- permitted?

[Scarberry, Mark]

I know that 501(c)(3) charities are not permitted to intervene in elections for public office. On the other hand, a 501(c)(3) may want to criticize someone who is a candidate for public office during a campaign, not for purposes of influencing the vote but rather to influence public policy (e.g., to pressure a president to close Guantanamo or a legislator to vote for a pro-life bill in the state legislature). I think I should know the answer to this question, but where is the line? Do the "electioneering communication" factors from the FEC regulations, or something like them, apply? For example, if a 501(c)(3) put out an ad shortly before an election criticizing  a GOP candidate for supporting voter ID laws (or a Democratic candidate for opposing them), would that be an intervention in the campaign? 

What if a professor who works for a university that is a 501(c)(3) posts a message to this list making such a criticism (or applauding a candidate for his or her position on voter ID laws)? I suppose it would be obvious that the professor was not speaking on behalf of the university, but university resources -- its email system and perhaps a computer owned by the university -- might have been used to post the message. Is that sufficient to implicate the university in the intervention, if the communication is seen as an intervention in the election? 

I have been careful, as I suppose all of us who are employees of 501(c)(3) organizations have been, to use a private email account (gmail in my case) for explicitly political communications involved with campaigns, such as addresses to which receipts for my small campaign contributions would be sent. Is that necessary (beyond any particular policies that my university may have)?

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law