In this next post in our series on election-related activities and 501(c)(3) organizations, we are taking a closer look at nonpartisan voter guides and candidate questionnaires.  Despite the fact that such guides and questionnaires are election-related, 501(c)(3) organizations can prepare and distribute them without fear of jeopardizing their exempt status (if done properly!).

A voter guide or candidate questionnaire is typically a printed guide comparing the positions of candidates for a particular office.  The information used to compile a voter guide is often gathered from questionnaires sent to the candidates soliciting their responses and from public sources, such as campaign materials and incumbent legislative records.  While other types of entities may be able to prepare voter guides that instruct the recipient who to vote for, 501(c)(3) organizations may not prepare such guides for the purpose of influencing the outcome of an election or benefitting a particular candidate or political party.  Rather, it would be appropriate for a 501(c)(3) organization to distribute a voter guide merely for impartial educational purposes.

The IRS has indicated that, in determining whether the preparation and distribution of a voter guide constitutes impermissible campaign intervention, the following factors are key considerations:

• “Whether the questions and any other description of the issues are clear and unbiased in both their structure and content.”
• “Whether the questions posed provided to the candidates are identical to those included in the voter guide.”
• “Whether the candidates are given a reasonable amount of time to respond to the questions.  If the candidate is given limited choices for an answer to a question (e.g. yes/no, support/oppose), whether the candidate is also given a reasonable opportunity to explain his position in his own words and that explanation is included in the voter guide.”
• “Whether the answers in the voter guide are those provided by the candidates in response to the questions, including whether the candidate’s answers are unedited, and whether they appear in close proximity to the question to which they respond.”
• “Whether all candidates for a particular office are covered.”
• “Whether the number of questions, and the subjects covered, are sufficient to encompass most major issues of interest to the entire electorate.”

As with other election-related activities, the IRS will look at all of the facts and circumstances in reviewing a voter guide prepared by a 501(c)(3) organization.  This includes the guide’s format, its content, and the method of distribution used.  In designing a questionnaire to send to candidates, 501(c)(3) organizations must be careful to draft neutral questions—ones that do not hint at the “correct” answer or indicate the organization’s position on the issue being discussed.  They should also avoid separately stating the organization’s position on any of the issues covered in the guide, which would likely be viewed by the IRS as an invitation for recipients to compare the views of candidates to those of the organization.

Also, as with other election-related activities (and activities in general), a 501(c)(3) organization is not able to do indirectly what it would be prohibited from doing directly.  Accordingly, the distribution by a 501(c)(3) organization of a voter guide prepared by a third party that it could not have prepared itself will likely constitute impermissible political campaign intervention.