Two federal laws, the Federal Election Campaign Act of 1971 (FECA) and Section 501(c)(3) of the Internal Revenue Code, lay the foundation for elections law by regulating federal elections (President and Congress). Each state and local jurisdiction provides additional rules about how individuals and organizations such as fire departments can participate in state and local political campaigns. It is always wise for a department to seek legal counsel before beginning a new campaign activity.
One underlying principle of campaign law limits financial contributions. Corporations and labor unions are prohibited from contributing to federal campaign funds by FECA. However, that law only regulates campaigns for federal office, so state and local law applies to state and local races. This is significant because some states, like Virginia, allow corporate and labor union contributions. Similarly, non-profit organizations are barred from making campaign contributions by Section 501(c)(3), which creates their non-profit tax status. So, for example, Virginia campaign finance law would let a non-profit make a campaign contribution, but federal tax law prohibits it. So, regardless of state rules, non-profit organizations cannot directly contribute to campaigns.
Contributions include anything of value, such as the use of equipment, facilities or an employee's time. Fire departments and individuals in the fire service can participate in a number of campaign-related activities, but the opportunities are defined by this basic principle.
Voting, itself, is the most basic, and important, campaign tool. Voting can be especially important in primaries and elections for local offices, when turnout sometimes is quite low. Distributing voter guides, responses to candidate questionnaires and incumbent voting records is one tool for encouraging voter turnout. This is permissible if not biased toward (or against) any candidate. But, as one lawyer specializing in elections law pointed out, there are more subtle ways of communicating a position. Voter guides can be "biased" in that the questions they can ask and the way the information is presented can lead the reader toward a particular conclusion. But, they cannot do it explicitly and cannot be partisan. Bias needs to be issue based, not party based. If the voter guide covers a narrow range of issues, it should be distributed only to the members of the organization that produces it.
Fire departments have participated in election campaigns throughout history by hosting candidate debates and other public forums. A non-profit organization that does not endorse, support or oppose candidates or political parties can sponsor debates. The laws leave decisions about the structure of the debate to the discretion of the sponsoring department, as long as the debate includes at least two candidates, provides a fair and neutral forum, and provides equal time to all legally qualified candidates. Again, to do otherwise would be a contribution to a campaign. Departments that are a part of a local government also can host candidate events, but that will be governed by their government's policy on use of its facilities.
Many firehouses make desirable locations for political events, and candidates may rent a fire hall or other facility for a public event. A corporation can let a candidate use its facilities as long as it is reimbursed at its usual rental charge. Providing facilities free or at a reduced rate would be impermissible. If the department ordinarily makes its facilities available only to members, it should not make them available to an outside candidate or political organization. Presumably, government agencies would allow use of their facilities in a way consistent with government policy.
Candidate advertising in departmental publications such as convention programs or yearbooks is permissible if the organization charges a fair-market rate. The department should also place a statement preceding the ads noting that they are paid political advertising and do not reflect the views of the department.
Departmental employees generally can participate in campaign activities, depending on local civil service rules. However, an individual may not use the organization's financial resources, facilities or personnel to support campaign activities, since this would be an impermissible donation by the department. Thus, while a fire chief may endorse a candidate, he or she could not use the chief's buggy to drive to a campaign event. Volunteers generally are free to work on campaigns, with similar restrictions, since they are not employees.
The laws governing campaign activities are complex, but ultimately, they are intended to promote appropriate participation by all. While the tools may vary, there is a role for all parts of the fire and EMS community to participate.
STEVE BLACKISTONE, a Firehouse® contributing editor, is a Maryland attorney who directs state and local liaison activities for an agency of the federal government. Prior to his current position, he served in a variety of posts on the staff of the U.S. House of Representatives, working both on the personal staffs of members of Congress and on congressional committees. Blackistone also is an active volunteer EMT/firefighter with the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.