Participation in Campaigns and Ballot Measures
- Purpose of the Website. As a public University in the State of Michigan and a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code, Michigan State University is subject to a number of legal constraints which limit its capacity to engage in partisan political activities involving campaigns for public office and ballot measures. The purpose of this website is to provide basic information on these constraints and on the rights and responsibilities of members of the University community regarding their participation in such activities. It is also to make certain policies and resources on these matters more accessible to members of the University community by bringing links to them together in one place.
- Organization of the Website. This website is divided into five parts: (i) this Introduction; (ii) a section on the Michigan Campaign Finance Act, which regulates the involvement that public bodies in Michigan and those who act on their behalf may have in campaigns for the nomination or election of candidates for public office or for the qualification, passage, or defeat of a ballot question; (iii) a section on federal tax law governing the involvement 501(c)(3) organizations may have in political campaigns for or against candidates for public office; (iv) a section on University policy relevant to political activities and campaigns; and (v) a summary called “Practical Points to Remember”, which synthesizes the information provided elsewhere in the website into fairly simple maxims.
- Using the Website. Please note that this website concerns matters which are decided by voters in elections--campaigns for public office and ballot measures. Other aspects of the University’s involvement in the political process, like lobbying for or against legislation under consideration in Lansing or Washington, D.C., are also subject to State and federal regulation. They, however, are not the subject of this website.
The information provided in this website is addressed primarily to University employees, as they are the individuals who typically have access to University funds and resources and who are most likely to be perceived as speaking or acting for the University. It is possible, however, that a court or regulatory authority could conclude, in certain circumstances, that a student or group of students was acting on behalf of the University and thus subject to the constraints described in the next two parts of this website. For that reason, the information in this website should be helpful to all members of the University community.
In some respects, the standards of conduct which senior University officials must observe in connection with campaigns for public office and ballot measures are different from those which apply to other University employees. In particular, the Michigan Campaign Finance Act restrictions do not apply to the expression of views by elected or appointed public officials with policy-making responsibilities, like members of the Board of Trustees and MSU’s President. This website does not attempt to delineate in detail the differences between the rules for such officials and those for other members of the University community.
- Questions. If you are a University employee and the representative of a candidate for public office contacts you to seek information or assistance of any kind, please refer that individual to Vice President for Governmental Relations Mark Burnham at 517.353.9000 or at email@example.com . Candidates’ requests for video or photographic use of University facilities may also be referred to Vice President for Communications and Brand Strategy Heather Swain at 517.355.2262 or firstname.lastname@example.org. If you have other questions on the subject matter of this website, please contact Vice President for Legal Affairs and General Counsel Bob Noto at 517.353.3530 or email@example.com.
- General: Section 57 of the Michigan Campaign Finance Act (the “MCFA”) defines what the University and those acting on its behalf may and may not do in connection with campaigns for public office and ballot questions. MSU is subject to the MCFA as a public body in Michigan.
- Prohibition: Section 57 of the MCFA prohibits a public body like MSU or an individual acting for a public body like MSU from using public resources to assist, oppose, or influence the nomination or election of a candidate for public office or the qualification, passage, or defeat of a ballot question.
Public resources are defined very broadly. The statute mentions the use of funds, personnel, office space, computer hardware or software, property, stationery, postage, vehicles, equipment, and supplies, but that is not intended to be a complete list. Nor is the prohibition limited to uses of public resources which result in an incremental or out-of-pocket cost to the University. Uses of public resources in a campaign for public office or for or against a ballot initiative are prohibited even if they cost the University nothing. The statute has no de minimis exception to the prohibition. Any use of public resources which has an ascertainable monetary value is out of bounds.
- Exceptions: Section 57 of the MCFA includes six exceptions to the prohibition. The most important is an acknowledgment that the prohibition does not affect the right of any University employee to participate in the political process as long as the employee is acting and speaking on his/her own behalf, and not on behalf of the University, and is using personal time, funds, and resources.
The prohibition in Section 57 of the MCFA also does not apply to:
- The expression of views on a ballot initiative or campaign by an elected or appointed public official who has policy-making responsibilities, like the President of the University or a member of the Board of Trustees.
- The dissemination of factual information concerning issues relevant to the University’s function or mission. University funds and resources can be used to create this factual information.
- The production and dissemination of information, debates, interviews, commentary, and interviews about campaigns by University-affiliated media like WKAR, as long as it occurs in the regular course of their broadcasting or publishing activities.
- The use of University facilities by any candidate for public office or any advocate for or against a ballot question if the opposing candidate or advocate has an equivalent opportunity to use the facility. Both sides have to be given equal access to the facility.
- Political activities at the apartments of individuals who reside in University-owned housing, as long as the apartment is not used for a political fund-raising event.
- Penalties: The knowing violation of Section 57 of the MCFA is a misdemeanor punishable by a fine of up to $1,000 and up to one year in jail for an individual, or, for the University, by a fine of up to $20,000 or by a fine equal to the value of the improper use of University resources, whichever is greater.
Federal Tax Law
- General: Federal tax law regulates the participation in the electoral process of charitable and educational organizations described in Section 501(c)(3) of the Internal Revenue Code. MSU is such an organization.
- Prohibition: To receive the benefits of tax-exempt status which derive from qualifying as a 501(c)(3) organization under the Internal Revenue Code, an organization cannot participate or intervene in any political campaign on behalf of, or in opposition to, any candidate for public office. “This prohibition means 501(c)(3) organizations may not endorse candidates, distribute statements for or against candidates, raise funds for or donate to candidates or become involved in any activity that would be either supportive or opposed to any candidate.” IR- 2006-87, June 1, 2006, “IRS Reminds Charities to Avoid Campaign Activities This Election Season.”
- Candidates v. Ballot Measures: Unlike the State of Michigan, the Internal Revenue Service (the “IRS”) distinguishes campaigns for public office from campaigns for ballot questions, even though both are decided by voters in the electoral process: “[T]he ban by Congress is on political campaign activity regarding a candidate; churches and other 501(c)(3) organizations can engage in a limited amount of lobbying including ballot measures and advocate for or against issues that are in the political arena.” IRS Article: “Charities, Churches, and Politics.” In other words, the absolute prohibition on participating in campaigns for public office does not, under federal tax law, carry over to campaigns for ballot measures. (Please note: This does not affect the prohibition on using public resources to assist, oppose, or influence the qualification, passage, or defeat of a ballot question under Michigan law.) The IRS views involvement in ballot measure campaigns as a form of lobbying, which is a different regulatory regimen. Although 501(c)(3) organizations can engage in some lobbying, their lobbying, when considered in the aggregate, cannot be a substantial part of their activities, and the IRS places fairly tight caps on lobbying expenditures.
- Exceptions: There are no exceptions to the Internal Revenue Code provision which prohibits 501(c)(3) organizations from directly or indirectly participating or intervening in any political campaign on behalf of, or in opposition to, any candidate for elective public office. That said, the University can engage in a variety of nonpartisan activities relating to candidate political campaigns, provided their purpose is to educate and inform the public about the coming election and the candidates’ views (e.g., candidate forums, speaking opportunities on campus offered on an evenhanded basis to both candidates).
The IRS is more restrictive than the State of Michigan regarding partisan comments on campaigns for public office by leaders of 501(c)(3) organizations, though it does acknowledge their right to participate personally in the political process if they take care to distinguish their views from those of their organization:
The political campaign activity prohibition is not intended to restrict free expression on political matters by leaders of organizations speaking for themselves, as individuals. Nor are leaders prohibited from speaking about important issues of public policy. However, for their organizations to remain tax-exempt under section 501(c)(3), leaders cannot make partisan comments in official organization publications or at official functions. To avoid potential attribution of their comments outside of organization functions and publications, organization leaders who speak or write in their individual capacity are encouraged to clearly indicate that their comments are personal and not intended to represent the views of the organization.IRS Article: “Political and Lobbying Activities.”
- Penalties: Tax-exempt organizations which become involved in campaigns for public office or which make excessive lobbying expenditures risk the loss of tax-exempt status and the imposition of excise taxes. Organization managers who approve prohibited campaign or lobbying expenditures may also be compelled to pay excise taxes, personally.
For further information, see “Election Year Activities and the Prohibition on Political Campaign Intervention for Section 501(c)(3) Organizations”, IRS Fact Sheet 2006-17, February 2006, and “Political Campaign Related Activities of and at Colleges and Universities”, American Council on Education Guidance, September 12, 2006.
- Political Activities as Private Citizens: University policy relating to the participation of University employees in partisan political activities as private individuals follows several basic precepts:
- As citizens, University employees have rights to freedom of speech and association which they may exercise in connection with the electoral process.
- Insofar as University employees choose to become actively involved in political campaigns, as candidates or volunteers, they must do so on their own time, and their activities cannot impair the performance of their regular duties at the University. University employees who are candidates for, or elected to, public office may be authorized (and, in certain circumstances, required) to take unpaid leaves of absence.
- Employees may not represent their personal views as those of the University.
- When exercising his/her right to speech in the political process as a private citizen, a University employee should emphasize that his/her comments are entirely his/her own, and not those of the University. Such disclaimers are especially important if the employee is using his/her title or position at the University for identification purposes, or as a way of establishing his/her competence in a field, in connection with his/her speech as a private citizen.
- Anti-Discrimination Policy: The University’s Anti-Discrimination Policy (the “ADP”) prohibits discrimination and harassment against members of the University community on the basis of political persuasion. The ADP also states that its prohibitions “are not intended to abridge University community members’ rights of free expression or other civil rights.”
- Guidelines Re: Political Campaign Advertising. The Division of University Relations administers the University’s Guidelines Re: Political Campaign Advertising. Subject to these Guidelines, certain campus facilities are available on a non-partisan basis, for video and photographic use by candidates for public office. Any use of University logos, trademarks, symbols, or music that might imply a University endorsement of the candidate is prohibited. The University does not provide production assistance for these uses of its facilities.
Summary: Practical Points to Remember
The following comments are offered to distill some of the information offered in this website into a more accessible and useful set of maxims.
- The University encourages all University employees to vote and to become involved in the political process, provided that they keep their partisan political activities separate from their work at MSU.
- University employees should always be sensitive to the possibility that individuals who are not part of the University community will assume that they are speaking for the University when they identify themselves as University faculty or administrators in a non-work-related communication. It is especially important to be cautious about using University titles when the non-work-related communica-tion involves partisan political activities. When a reference to a University title or position cannot be avoided in a non-work-related communication (as when the title is used by the media), the employee should clearly indicate that his/her comments or views are personal in nature and, if possible, that the University title is used for identification purposes only.
- University employees should not use University offices or other facilities, computers, photocopiers, telephones, or other property or equipment (for example, vehicles) to engage in advocacy for or against, or fundraising for, a candidate for public office or a ballot question.
- University employees should not use University letterhead, logos, or trademarks, or a University email address when engaging in private partisan political activities on behalf of, or in opposition to, a candidate for public office or a ballot question.
- University funds should never be used for tickets for, or to pay the cost of attending, any meal, rally, testimonial, or other fund-raising event whose purpose is to support or oppose a candidate for public office or to support or oppose a ballot question.
- Opportunities for candidates to speak on campus and to use campus facilities for campaign advertising must be offered and granted evenhandedly.
In addition, please note that neither federal nor State law prohibits:
- the performance of academic research related to past or current political campaigns or the issues that underlie them.
- the dissemination of the results of that research in a manner consistent with normal academic practice.
- the invitation of guest speakers or candidates by a student organization, provided that guest speakers on both sides of a ballot initiative and all candidates for a public office have equal opportunities to appear on campus through that student organization or other student organizations.
- the University from sponsoring or undertaking nonpartisan educational activities relating to ballot measures or political campaigns by candidates for public office. Examples of such activities include candidate forums to which all candidates are invited; symposia on ballot measures in which proponents and opponents of the ballot measure get an equal opportunity to participate; and the distribution of voter guides and voter education materials such as those provided through MSU Extension, provided the guides and materials comply with IRS guidelines. Voter education materials prepared by candidates, political parties, and PACs may be distributed only if distribution is evenhanded and on a nonpartisan basis – for example, an area in a student gathering place where all candidates and parties may make campaign materials available to students. IRS guidelines for voter guides and educational materials require generally that all candidates be afforded an equal opportunity to comment; that questions be asked on a neutral basis; that, while length may be limited, candidate answers cannot be edited or summarized; and that candidate responses be presented in a neutral manner.
- University faculty teaching courses such as political science from providing a course of instruction that includes student involvement in campaign activities without specifying the candidates or ballot measures on whose behalf the students should campaign and where, for example, students write papers or make class presentations evaluating their experiences.