This topic is monitored by Moritz Law Professor Donald B. Tobin
Voter Mobilization Drives and Laws Regulating Election-Day Politics
Voter registration and get-out-the-vote (GOTV) drives have been an integral part of election campaigns for decades. Political parties and candidates have a strong interest in identifying potential supporters, registering those supporters, and getting supporters to the polls. Campaign operatives often refer to this as getting out your "base."
Due to changes in campaign finance laws and the increasing activity of tax-exempt organizations in election campaigns that are neither political parties nor registered political action committees, voter registration and GOTV drives that appear to be partisan in nature are now being conducted by different types of tax-exempt organizations that traditionally have been considered non-partisan by virtue of their particular tax-exempt status. This memo explores the rules and regulations facing non-profit organizations that organize GOTV and voter registration drives.
GOTV and voter registration drives may vary in expense and complexity. Sometimes organizations will merely encourage their members to register to vote. Other times, organizations will organize volunteers to go door to door, registering voters, and reminding voters to vote on election day. Some organizations participate in these activities to promote democracy and are completely non-partisan in their activities. Other organizations, however, have a particular goal of either electing a specific candidate or of promoting a political party that supports issues that are important to an organization. It is when tax-exempt organizations engage in these types of partisan activities, that they may run afoul of either tax or campaign finance law. In addition, all organizations engaged in GOTV and voter registration drives must comply with laws against bribery and "vote buying."
The question still remains, what type of GOTV and voter registration activities are permissible. May a non-profit organization running the Get Out the Vote Drive pay workers on election day to walk around and encourage people to vote (often termed "walk around money")? May the workers expressly advocate for a candidate when they are involved with a drive? Must they register with the state, or have some disclaimer as to the organization they are working for or the group which is paying them? Who is allowed to pay for these drives? Where is the line drawn between accommodating voters in their efforts to get to the polls and bribing them to vote for a cause or candidate?
There is little Ohio election law regarding electioneering conduct on the day of the election. Much of law in existence has to do with the distinction of who runs and pays for these "Get Out the Vote Drives." Regulations differ, depending on whether the drive is funded and run by a candidate, a political party, a non-profit political organization, or a Political Action Committee (PAC).
1. 501(c)(3) organizations
Generally, 501(c)(3) tax-exempt organizations may not intervene in a political campaign. (See Permissible Activities of 501(c) organizations.) They may, however, engage in non-partisan GOTV or voter registration drives.
In order for a voter registration and/or 'get-out-the-vote' campaign to be non-partisan, the campaign must not be identified with any specific candidate or political party. 1 The IRS has indicated that it will consider several factors in determining whether a voter registration or get-out-the-vote drive runs afoul of the political intervention restriction. These factors include: 1) whether a candidate's name is mentioned in the material; 2) whether a political party is mentioned in the material in addition to the party affiliation of the candidates; 3) whether the communication is limited to urging people to register or to vote; 4) whether all material and services are made available to everyone. 2
2. 501(c)(4) organizations
These organizations have some leeway with regard to partisan GOTV and voter registration drives. A 501(c)(4) social welfare organization may intervene in a political campaign as long as the organization's primary purpose is still social welfare (the intervention in a political campaign does not count as a social welfare activity). For further details, see here.
Section 501(c)(4) organizations are, therefore, more constrained by election law then by tax law. These organizations are corporations, so they are prohibited from expressly advocating the election or defeat of a candidate, unless they qualify as an ideologically motivated non-profit under standards articulated but not entirely specified by the U.S. Supreme Court in FEC v. Massachusetts Citizens for Life , 479 U.S. 238 (1986). For example, one question left unsettled by the Supreme Court is whether a non-profit corporation is entitled to qualify for this special ideological status if it receives any funds from for-profit business corporations. Thus, a 501(c)(4) organization may target its voter registration and GOTV activities at voters it expects will vote for the candidates it supports, but only if it refrains from expressly advocating the election its preferred candidate, unless it qualifies for this special ideological status. Moreover, even if a non-profit corporation does qualify for this status and chooses to engage in express advocacy, (i.e. "We think you should voter for Ralph Nader. Do you want a ride to the polls?"), it may be required under federal campaign finance laws to disclose its expenditures for this express advocacy (unless they are essentially de minimis ) and the contributions it receives for this purpose.
3. 527 Organizations (Political Organizations)
These organizations may engage in partisan GOTV and Voter Registration activities. These organizations are subject to disclosure provisions in I.R.C. 527, but may spend unlimited funds on partisan voter registration activities. In addition, a 527 organization need not be organized as a corporation so it can avoid the restrictions against political activity by corporations and unions. There is an unresolved question whether 527 organizations must also register with the Federal Election Commission as political committees (conventionally called "PACs) under federal campaign finance laws. Some have argued that an organization that qualifies for the specific tax advantages of I.R.C. 527 by virtue of having the primary purpose of promoting the election or defeat of a federal candidate is thereby obligated to register as a PAC, which the Supreme Court has defined as an organization whose "major purpose" is the election or defeat of a federal candidate. (This issue is discussed here.)
But the Federal Election Commission, after considering this question earlier this year, has declined to issue new rules to clarify this question in advance of this year's election. If an organization is deemed a PAC subject to regulation as such under federal campaign finance laws, then it faces considerably stricter limits on the contributions it receives for partisan get-out-the-vote activities, including presumably a $5,000 limit on the amount of funds a PAC receives annually from any donor, although this too is unclear under current FEC rules, because PACs have been able to evade the brunt of this stricture by asserting that their get-out-the-vote activities are designed to promote candidates running for state rather than federal offices.
4. Can organizations pay "walk around money"?
Organizations cannot pay people to vote for a particular candidate. There is some concern that paying people to walk around and encourage people to vote for a particular candidate is tantamount to paying them for their vote. Organizations may, however, pay people to knock on doors and encourage people to vote, even for a particular candidate. What they may not do is pay people to vote for a particular candidate; nor may they pay for an endorsement by the organizations. 3
Federal bribery statutes serve as an extreme limitation on election day activity and Get Out the Vote Drives. Very rarely will an item or service offered during a Get Out the
Vote Drive be so substantial that it falls under a federal bribery statute. Instead, election day politics will more likely include gifts with a nominal value like buttons, pens, or a free bottle of water with a candidates name on it. (In Germany, by comparison, campaign workers have been known to distribute a small bottles of alcohol, together with a request that the recipient vote for a particular candidate). These smaller gifts of goods or services usually are not considered bribes.
1. Treas. Reg. § 1.527-6(b)(5).
3. According to the United States Code, "Whoever makes or offers to make an expenditure in consideration of his vote or the withholding of his vote" is subject to a jail term of up to two years. 18 U.S.C. § 597.