Can our 501(c)(3) public charity weigh in on a presidential nomination of a candidate for justice of the Supreme Court, or is that impermissible electioneering?
A public charity may participate and take a position in the confirmation process of a nominee for the Supreme Court. The selection of a Supreme Court justice is not an election, so the prohibition on a charity’s participation in an election for public office is not implicated. The IRS has ruled that, even though the advice and consent of the Senate does not require a new statute, the Senate’s action is legislative action, and advocating for or against the nomination for a Supreme Court justice (or any other federal judge) is considered “lobbying.” A public charity is permitted to lobby so long as lobbying does not constitute a substantial portion of its activities. (See Ready Reference Page: “Lobbying Rules Create Opportunity for Charities.”)
A 501(c)(3) private foundation would be making a taxable expenditure if it participated in such a lobbying effort.