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EOs and EOs: Exempt Organizations and Presidential Executive Orders

In the twelve days since his inauguration, President Donald Trump has issued a flurry of executive orders relating to, among other things, the proposed repeal of the Affordable Care Act, the construction of oil pipelines, the building of a wall on the Mexican border, and immigration restrictions.  These executive orders have begun the process of fulfilling many of the promises President Trump made during the campaign, and it seems likely that additional executive orders will continue to be issued.

Our Section 501(c)(3) clients, particularly those active in the issue areas addressed by the executive orders, have been rightly concerned about whether and to what extent they can advocate against or for these executive orders.  In general, charitable organizations are limited in their ability to engage in lobbying activities.  The applicable restrictions focus on attempts to influence action by Congress, a state legislature, any local council or similar governing body, or the public in a referendum, initiative, constitutional amendment, or similar procedure.  Notably, these rules do not prohibit attempts to influence the executive branch or administrative agencies with respect to regulatory matters—including executive orders.

Charitable organizations that wish to speak out, or to encourage individuals to speak out, against or for the policy changes embodied in these executive orders may generally do so without triggering the lobbying restrictions. However, Section 501(c)(3) organizations should be mindful that communications with employees of executive branch agencies who have legislative responsibility over certain matters may be subject to the lobbying restrictions if the ultimate goal of such communications is to influence legislation. Similarly, charitable organizations should be careful when communicating with legislators or their staff members about potential legislative action relating to an executive order. Therefore, charities, and in particular private foundations, should carefully monitor their outreach and pay attention to what they are asking for or seeking to accomplish.

One wrinkle to keep in mind is that President Trump has already declared his candidacy for the 2020 election.  Unlike with lobbying (which, although prohibited for private foundations, is permitted at an “insubstantial" level for public charities), all Section 501(c)(3) organizations are absolutely prohibited from supporting or opposing candidates for public office.  Thus, charities and private foundations should be careful that their criticisms or support for the President’s administrative actions or his performance in office do not reference his 2020 candidacy (e.g., organizations should avoid statements like “No More Years”, “One and Done”, “Keep America Great for Eight”) and should focus on the President’s activities and policies as the incumbent.

Also, remember that Section 501(c)(4) social welfare organizations and other types of tax-exempt organizations are not subject to the same restrictions on lobbying or political campaign activities and have greater latitude when it comes to engaging in the legislative or political process.