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

[Michael P McDonald]

Mark,

I will give you a better example of where universities regularly subsidize campaign activity: student clubs. Students routinely use campus resources -- e-mail, facilities, and even money -- to support clubs' campaign activities: recruitment of campaign volunteers, organizing campaign events, etc. If a student club sponsors a campus event where a candidate appears the university may subsidize the event through such perks as discounted (or no) facility charges. Universities may generally wish to subsidize candidate visits, particularly presidential candidates, because they raise the profile of the institution.

-Mike

============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444

phone:   703-993-4191 (office)
e-mail:  mmcdon at gmu.edu               
web:     http://elections.gmu.edu
twitter: @ElectProject


-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Scarberry, Mark
Sent: Friday, June 07, 2013 3:03 PM
To: law-election at uci.edu
Subject: [EL] Criticism of candidate by 501(c)((3) during campaign -- permitted?

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



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