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Can our 501(c)(3) public charity weigh in on President Obama’s nomination of Judge Sotomayor for justice of the Supreme Court, or is that impermissible electioneering?

A public charity may participate and take a position in the confirmation process of a nominee for the Supreme Court. The selection of a Supreme Court justice is not an election, so the prohibition on a charity’s participation in an election for public office is not implicated.  The IRS has ruled that, even though the advice and consent of the Senate does not require a new statute, the Senate’s action is legislative action, and advocating for or against the nomination for a Supreme Court justice (or any other federal judge) is considered “lobbying.”  A public charity is permitted to lobby so long as lobbying does not constitute a substantial portion of its activities.  (See Ready Reference Page:  “Lobbying Rules Create Opportunity for Charities.”)

A 501(c)(3) private foundation would be making a taxable expenditure if it participated in such a lobbying effort.

Comments from our Readers
Thank you for the info.  We actually called the IRS on this when several candidates were being considered and they read the rules and interpreted support for Sotomayor over another candidate as electioneering. After she was selected as the candidate, we issued a press release congratulating President OBAMA on the choice. -- D.C. via e-mail

June 16, 2009

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