Thursday, October 11, 2018
The American Council on Education has updated its useful "Issue Brief" on campus political activity, noting in particular President Trump's campaign statements against the so-called "Johnson Amendment." Here is the opening paragraphs of "Political Campaign-Related Activities of and at Colleges and Universities:"
We summarize here “do’s” and “don’ts” of potential entanglements of colleges and universities, and their personnel, in campaigns for public office. This summary, which updates a March 2016 ACE memorandum, is not exhaustive and omits legal citations. It is based on judicial and IRS rulings under Section 501(c)(3) of the Internal Revenue Code; IRS guidance; and the Federal Election Campaign Act of 1971, as amended, as well as Federal Election Commission regulations that apply to colleges and universities. This Issue Brief is most directly relevant to private institutions, as it mainly draws on legal authorities and guidance that is applicable to them. Specific state laws that speak to political campaign activities at public institutions are not addressed here. However, public institutions would be prudent to consider this guidance as likely analogous in most respects to their applicable restrictions under relevant state laws.
Also not specified here are the potential penalties for improper political activity by and at a college or university. Generally speaking, they can include loss of the institution’s tax-exempt status, imposition of taxes on the institution and its responsible managers, and other risks, including federal or state government lawsuits, audits, and investigations. Of note, the IRS has not issued any additional precedential guidance on the political campaign activities of Section 501(c)(3) tax-exempt organizations since the publication of our March 2016 memorandum. Nevertheless, the political campaign activities of tax-exempt organizations continue to be a subject of considerable controversy and public debate. During the past year, the Trump Administration and certain Republican members of Congress have repeatedly sought to repeal or limit the Johnson Amendment, which refers to the portion of Section 501(c)(3) that prohibits 501(c)(3) non-profit organizations from participating or intervening in any political campaign. Although their efforts have so far been unsuccessful, repealing the Johnson Amendment remains on their agenda. In this charged climate, political campaign-related activities that occur on college campuses or are perceived to be undertaken by a college or university are likely to continue to be scrutinized. In addition, colleges and universities continue to be criticized by free-speech groups over their policies and practices. Because of the complexities and challenges in this area, we recommend that each institution consult its counsel before taking proposed actions.