January 23, 2015
Citizens United and the Surge of Political Non-Profits
It has been five years since the U.S. Supreme Court decided Citizens United v. FEC. When the Supreme Court first decided the case, which allows individuals, corporations and special interest groups to spend unlimited amounts on independent expenditures, many thought that corporations would become more engaged in the political process. Although some corporations have done just that, for-profit corporations do not appear to be jumping on the independent-expenditure bandwagon. Perhaps they are afraid of offending their shareholders, customers and clients with their political message – an unknown risk that Target took within months of the Citizens United decision. Despite the fact that for-profit corporations seem to be reluctant about engaging in the political process, in the five years since Citizens United was decided, certain non-profit corporations have become more engaged. Although the Internal Revenue Code prohibits 501(c)(3) organizations from participating in any political activity, the law does not prohibit other non-profit corporations from voicing their partisan political views. In fact, the law permits 501(c)(4) social-welfare groups, 501(c)(5) labor unions and 501(c)(6) trade groups to participate in the political process provided it is not their “primary activity.” The IRS has yet to define “primary activity,” but has demonstrated an apparent tolerance for a 49% threshold, which means that certain non-profits may be spending as much as 49% of their time on political activity without being subject to the same disclosure requirements as true political organizations. This discrepancy has led to these groups being labeled as “shadow organizations” and calls upon the IRS to take action. The IRS issued its first report on 501(c)(4) political activity over a year ago, but little has been done in the way of reform. In fact, the IRS itself has revealed that “it has only begun auditing 26 organizations specifically for political activity since 2010 [which] represents a tiny fraction of the more than 1 million nonprofits regulated by the agency.” While the IRS takes its time auditing “political” non-profits, many groups who want to become involved in the political process find that forming a 501(c)(4) is the best way to achieve their goals. Although the organization will be subject to tax on its political activity, the organization is not required to reveal its donors to the public and also can engage in issue advocacy, lobbying and other activity to benefit the “social welfare” of the community without that activity counting toward its “political activity” threshold.