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Trending Now: Political Activities and Social Media

The 2016 U.S. presidential campaign has reached a fevered pitch, with a little over a month remaining before Election Day.  After Monday’s debate between Hillary Clinton and Donald Trump, the stakes are high and the American public is turning to social media to express powerful emotions ranging from excitement to exhaustion, and to support their chosen candidate (or oppose the other).  We previously reminded charitable organizations about the prohibition on direct and indirect participation by 501(c)(3)s in political campaign activities.  As this election draws to a close, charities—and their employees or volunteers—may be tempted to join the fray on Facebook, Twitter, Snapchat, and Instagram, or may find themselves unwittingly violating the prohibition on political campaign activities with these and other social media tools.

As the election issues reach a boiling point, it is critical for charities and their staff to remember that the political campaign activity prohibition is absolute and even minor foot faults could subject an organization to excise tax penalties as well as jeopardize the organization’s tax-exempt status— in addition to unwanted public and regulatory scrutiny.  While the prohibition does not apply to political campaign activities of a 501(c)(3) organization’s employees acting in their individual capacities, the activities of employees can be imputed to organizations if they conduct activities on “company” time or using “company” resources.

Organizations should use this opportunity to review and remind their employees about their policies on political activities.  In addition, organizations should keep the following in mind:

Watch What You Post

The political activities prohibition is extremely broad.  Organizations should avoid directly supporting candidates, as well as “liking” or “retweeting” statements supporting or opposing a candidate, using hash tags that people identify with particular candidates (such as #imwithher or #MAGA), or even using emojis that support or criticize a candidate.  In addition, organizations that wish to encourage political participation, or elevated political discourse, must do so carefully and without endorsing a particular candidate or viewpoints that are clearly identifiable with a particular candidate.

Mind How You Tweet

Individuals who wish to discuss candidates through personal social media outlets should make very clear that they do not speak on behalf of their employer (many individuals use a tag line such as “opinions my own” or an abbreviation thereof, in descriptions about themselves).  This is particularly important for individuals who are closely identified with organizations (such as CEOs).  In addition, individuals should not use technology provided by their employers—whether email accounts or smartphones provided by charitable organizations—to make such postings.  Finally, individuals should avoid posting on company time.

Avoid Snap Judgments

Social media is an arena where individuals and organizations write, respond, and like things rapidly on their desktop, laptop, tablet, and phone.  Additionally, evolving technology, like Facebook Live, provides exciting ways for organizations to engage with their donors and stakeholders.  However, the absolute prohibition on political activities was enacted by Congress decades ago, when political statements were more likely to be made in print, on radio, or on television.  Accordingly, in the absence of IRS guidance related to political activity on social media sites (and minimal guidance about the use of websites), organizations and their employees should remember to pause before posting.  A posting on Snapchat may only last for a few seconds, but the repercussions for a charitable organization of a politically motivated message may last much longer.