Friday, January 3, 2014

Political Activities and PTA

Federal law prohibits a 501(c)(3) organization from engaging in any activities in support of or in opposition to any candidate for public office.  This prohibition is reflected in Article 2 of the WSPTA Uniform Bylaws, which states in Section 1, paragraph (b):

“The organization or members in their official capacities shall not – directly or indirectly –participate or intervene (in any way, including the publishing or distributing of statements) in any political campaign on behalf of, or in opposition to, any candidate for public office...”

This means that there can be no connection between your PTA and any political party or candidate for public office, including candidates for school board positions.  This prohibition applies to all  PTAs, including those that are not tax exempt or are tax exempt under Section 501(c)(4).

However, this prohibition does not mean that you must refrain from all political activities or from carrying on efforts concerned with legislative issues or official actions that affect or support the well-being of children and youth.  If you engage in lobbying, you must be very careful to observe the rules applicable to lobbying activities.

In addition to federal prohibitions, Washington State law prohibits the use of school facilities to support or oppose a ballot issue or election campaign.  State law also prohibits school facilities to be used by any group to distribute literature on behalf of ballot measures.  This prohibition includes sending support/oppose information home with students or publishing such information in the PTA newsletter if the newsletter is sent home with the students.

Examples of prohibited activities:

  • You may not make contributions to candidates for public office (including “in kind” donations such as staff time or use of facilities).
  • You may not publish or distribute statements in a political campaign.
  • You may not endorse a candidate.
  • You may not use school facilities to produce materials that support or oppose a ballot measure, unless the district offers printing services on an equal access, nondiscriminatory basis to others.
  • You may not print or distribute materials promoting a ballot measure in the school newsletter.
  • You may not use a school- or district-sponsored event to promote or oppose a candidate or a ballot measure.

Examples of permitted activities--You may provide information of an educational or nonpartisan nature, even at school facilities, without violating state or federal law.  For example:

  • You may comment on elected officials already in office (although an upcoming election could make such activity fall into the prohibited category).  
  • You may sponsor a candidate forum to which all candidates have been invited and are given equal “air time” and which an impartial moderator runs.  
  • You may distribute a candidate questionnaire if the questions are framed without bias and the responses are not accompanied by any commentary. 
  • You may participate in voter registration and other “get out the vote” efforts so long as they are not directed toward assisting a particular candidate for public office.  
  • You may hold meetings to determine your PTA’s support of or opposition to ballot issues or advocate its position to your members.
  • You may use school facilities for a meeting supporting or opposing a ballot measure to the extent that the facilities are made available on an equal access, nondiscriminatory basis, and it is part of the normal and regular activity of the district (however, you need to be certain that the school district truly has an equal access policy).
  • You may print and distribute a separate newsletter advocating support for or opposition to a ballot measure so long as no district resources are used (such as kid mail, newsletters, websites, etc.)
  • You may remind voters of upcoming election dates in the PTA newsletter or in the PTA’s portion of the school newsletter.

Some school districts provide PTAs with email addresses and websites. PTAs using technology provided by school districts must comply with all the same restrictions as the district when using the technology (for example, a PTA may not promote a levy on its district-sponsored web site or home page).

PTAs often contribute funds and volunteer support to school district levy or bond issues.  The Washington State Public Disclosure Commission (PDC) regulates the amount of money that a levy or bond committee can receive as well as the committee’s reporting requirements.  If the PTA makes an expenditure on behalf of the committee that is not coordinated with the committee, and if that expenditure is less than $100, there is no reporting requirement placed on the PTA. If, on the other hand, the expenditure is more than $100, the PTA is required to report the expenditure on PDC Form C-6 “Report of Independent Expenditure.” (This form is available from the WSPTA).  If the PTA makes an expenditure on behalf of the committee that is coordinated with the committee, then the committee itself (not the PTA) reports to the PDC.  The maximum size of any monetary contribution by a PTA depends on the reporting method selected by the committee.  If the committee selects to use the abbreviated reporting method, then the maximum contribution a PTA can make is $200.  If the committee selects to use the full reporting method, then the law does not limit the size of the contribution.

An officer or director of a PTA is not prohibited or prevented from running for or holding a public office.  However, to ensure the nonpartisan requirements placed on the PTA, the member must, when campaigning for office or serving in the office, sever his/her identity with PTA as it relates to that public office.

Lobbying activities by PTAs are not prohibited by law. However, the IRS limits lobbying activities of all 501(c)(3) organizations to “an insubstantial part” of an organization’s activities. This limitation is set forth in Article 2, Section 1, paragraph (b) of the WSPTA Uniform Bylaws:

“The organization or members in their official capacities shall not — directly or indirectly --    devote more than an insubstantial part of its activities to attempting to influence legislation by propaganda or otherwise...”

What is “insubstantial”?  Under current law, there are two ways in which a PTA can meet “insubstantial” tests of the Internal Revenue Code:

  • Section 501(h) election--The recommended method for complying with the “insubstantial” requirement is to make what is called a Section 501(h) election. This is done by filling out and filing IRS Form 5768 “Election/Revocation of Election by an Eligible 501(c)(3) Organization to Make Expenditures to Influence Legislation.” This is a very simple, single-page form which is filed with the IRS. If a 501(h) election is made, then a PTA may spend up to 20% of its first $500,000 of its total exempt purpose expenditures (and lesser percentages of amounts above $500,000) in lobbying activities. Because this “safe harbor” election provides PTAs with absolute certainty as to the amount that can be spent on lobbying activities, the WSPTA recommends that all 501(c)(3) PTAs make this election as soon as possible. The election must be filed with the IRS prior to the tax year for which you wish to claim the election, and once filed does not need to be filed for future tax years. If for any reason you wish to discontinue the election, you can revoke it any time and once revoked it can be reinstated.  If your PTA has made this election, a copy of the IRS Form 5768 should be in your legal documents file.  If you cannot find such a document and are uncertain about whether your PTA has made the election, you can find out by contacting the IRS at this number: (877) 829-5500.  
  • No election--If your PTA has not filed the Section 501(h) election, it must limit expenditures on lobbying activities to a small percentage of the PTA’s overall expenditures. For example, it is generally recognized that an organization that spends no more than 5% of its exempt purpose expenditures on lobbying is not engaged in lobbying to a substantial degree. Some experts take the position that larger percentages can be spent on lobbying without violating the “insubstantial” requirement of the law. However, each percentage point above 5% increases the possibility that the lobbying activities will be deemed substantial. Accordingly, the WSPTA recommends that if you are going to rely upon this test rather than the Section 501(h) election to satisfy the requirements of the Internal Revenue Code that you spend no more than 5% of your total exempt purpose expenditures on lobbying. The problem with trying to meet this test is it is vague and somewhat subjective, and accordingly lacks certainty.  That is why WSPTA recommends the Section 501(h) election.
  • How to find out if a PTA has made such an election? A PTA can look back at its Form 1023 in part 8, question 2b. If your PTA marked “Yes” then your PTA would have filled out a Form 5768.  If your PTA filed a Form 5768 then you could also look at your PTA’s past IRS Schedule C. This section would be completed if the PTA supported a levy, bond issue or initiative and your legislative activity is substantial (more than 5%) and the 501(h) election would have needed to be completed before July 1 of the first year the PTA support was over 5%. 

Examples of lobbying activities:

  • Advocating the adoption or rejection of specific legislation
  • Communicating with a legislator (or his or her staff) in regards to specific legislation
  • Contacting a legislator (or staff) with respect to specific legislation

Examples of activities that do not constitute lobbying:

  • Publication of position papers on issues that do not address pending or proposed legislation
  • Communication to your members regarding pending legislation as long as you are not asking your members to engage in grassroots lobbying  
  • Conducting, commissioning, and/or publishing nonpartisan analysis, study or research that has a demonstrated factual foundation and is presented in an independent and objective way
  • Responding to a legislator’s request for advice or assistance, even with respect to pending legislation
  • Communications that relate to pending legislation that might affect the existence, duties or powers of your organization
  • Routine communications with legislators or governmental officials