It’s fall, it’s October and the US Supreme Court is back in session. On today’s episode, we have a special guest from the AFJ Justice team. We are joined by our colleague Jamal Lockings. With Jamall we will cover the big cases to be heard by the court. Then we will talk about how nonprofits can get involved with supreme court advocacy, nominees, and more while staying nonpartisan and being mindful of lobbying limits. 

 

Attorneys for this Episode 

Brittany Hacker 

Susan Finkle Sourlis 

Jamaal Lockings 

  

Intro to Justice Program 

• Our justice team works on both federal and state judicial appointments and elections and runs numerous invaluable resources including our judicial vacancy tracker and helps keep us and the public informed about nominees. This includes the decisions they make after they’ve been confirmed, and how cases in federal courts – especially the supreme court – are impacting our civil rights and democracy.    

• Today, we are thrilled to be joined on the pod by our friend and colleague Jamaal Lockings. Jamaal is a fellow attorney who serves as a Dorot Fellow on the Federal Courts team.  

• Today we want to talk about the upcoming cases in this supreme court term, what we should be keeping an eye on, the potential impacts for our c3 partners, and what nonprofits can do during this term and future terms to advocate.  

 

Cases to watch out for this term 

• Voting Rights and Money In Politics 

• Louisiana v. Callais 

• Issue: Whether a states efforts to comply with the VRA is, in itself, a form of racial discrimination 

•  (1) Rehearing from last term (2) The Court is playing politics (3) the VRA is on the chopping block  

• Consequences: A final blow to the VRA, and increased difficulty for minority voters to participate in free and fair elections  

• National Republican Senatorial Committee v. FEC 

• Issue: Whether to maintain the federal limits on political party coordination w/ candidates in campaign advertising.  

• (1) Could render campaign contribution limits meaningless, increasing the already outsized influence of money in politics (2) These cases on elections and voting rights can’t be observed in a vacuum  

 

• LGBTQ+  

• Chiles v. Salazar  

• Issue: Whether Colorado’s ban on “conversion therapy” for minors violates First Amendment protections of free speech and religious exercise  

• (1) Religious litigants have been notoriously successful in this court (2) free speech and religious exercise have been used not to ensure equity or equality but to prop up Christian nationalist ideology.  

• West Virginia v. B.P.J.  

• Issue: Title IX and barring Trans athletes  

• (1) This court continues to wade into culture wars (2) It’s ruling in Skrmetti and Justice Barrett’s assertion that Trans isn’t a protected states (3) Embolden lawmakers to continue to write oppressive laws against trans individuals 

 

• Executive Power & Civil Liberties  

• Trump v. Slaughter  

• Issue: whether statutory removal protections for members of the FTC – and agencies like it – “violate” the separation of powers.  

•  (1) The Court’s emergency orders this summer (2) growing belief in the unitary executive theory (3) Likely to overrule Humphrey’s executor 

• Consequences: Collapse of independent agencies and with it, governing stability.  

 

What c3s can do: 

• Supreme court advocacy is nonpartisan—you are free to stand for or against cases before any court or get involved in the cases.  

• Litigation at the supreme court: c3s are often the best voice and represent groups who otherwise would not be heard or could not bring such large scale cases 

• Amicus briefs  

• Educating the public about cases and impacts of opinions 

As you know c3 public charities may engage in lobbying and there are ways through lobbying that can affect the courts at the federal or maybe the state level 

• Nominee advocacy—Advocate for or against nominees to supreme court (lobbying) 

• Remember the lower district courts and circuit courts as well 

• Remember the lobbying rules if you are a c3: must track and report your lobbying the IRS and stay within your lobbying limits. Great place for c4s to get involved because they can lobbying in an unlimited amount. 

• Ethics advocacy—ask congress for more oversight or ethics rules (Lobbying if it will require a legislative vote).  

Resources 

• Alliance for Justice, Being a Player 

• Alliance for Justice, Confirmation of Supreme Court Justices 

• Alliance for Justice, Judicial Nominee Tracker 

• Alliance for Justice, Supreme Court Reform 

With school back in session and fall in the air, it’s the perfect time to get back to basics on the Rules of the Game podcast. On today’s episode, we’ll review how the advocacy rules differ across the various types of tax-exempt organizations, including 501(c)(3)s, 501(c)(4)s, and PACs. Whether you’re a seasoned advocate or just starting out, understanding these fundamentals is crucial for crafting bold advocacy plans that maximize your capacity and comply with the appropriate rules. Join us for a quick refresher!

 

Attorneys for this Episode

Melissa Marichal Zayas

Natalie Ossenfort

Susan Finkle Sourlis

 

Comparison of tax-exempt organizations

There are many different types of tax-exempt organizations – our federal tax code offers 29 different types of tax exemptions to choose from!

501(c)(3)s

501(c)(3) organizations are tax-exempt, and donations to 501(c)(3)s are tax deductible. With this favorable treatment come some restrictions related to lobbying and election season advocacy.

·      Public Charities (including Community / Public Foundations)

o   Prohibited from supporting or opposing candidates for public office

o   Allowed to lobby so long as they stay within certain lobbying limits and use unrestricted dollars to pay for lobbying activities

o   May also conduct nonpartisan election-related activities including voter outreach, voter education, voter registration, etc.

·      Private Foundations

o   Prohibited from supporting or opposing candidates for public office

o   Effectively barred from lobbying due to a steep excise tax that applies to private foundation lobbying expenditures

o   Should also be aware of specific rules related to voter registration activities

 

501(c)(4) social welfare organizations, 501(c)(5) unions, and 501(c)(6) trade associations

These organizations enjoy tax exempt status, but donations to them are not tax-deductible for the donor. However, they can engage in a wider array of advocacy activities than 501(c)(3)s.

·      They are allowed to lobby without tax code lobbying limits.

·      They can engage in some partisan political activity as a secondary purpose (for example, express advocacy).

·      When engaging in partisan activities, they need to be aware of campaign finance regulations and reporting thresholds.

·      At the federal level (and in most states), corporations – including tax-exempt organizations – are prohibited from making monetary or in-kind contributions to candidates or political parties.

 

527 – political organizations

527 political organizations include political parties; campaign committees for candidates running for federal, state, or local office; and federal or state political action committees (“PACs”).

·      The primary purpose of a 527 must be to engage in activities that influence the selection, nomination, election or appointment of an individual to a public office or an office in a political organization.

·      They do not generally engage in lobbying. Their lobbying expenditures may be subject to tax if the lobbying does not further political purposes.

·      There are many types of PACs, including traditional PACs and Super PACs.

 

How can these organizations work together? 

Despite the different restrictions on lobbying and political activity, there are several ways to safely collaborate with organizations that have a different type of tax exemption.

 

501(c)(3) private foundations & 501(c)(3) public charities

·      Private foundations and public charities can engage in joint nonpartisan, non-lobbying activities, like public education campaigns.

·      Private foundations can also fund public charities, but they must ensure that they don’t earmark any funds for lobbying.

 

501(c)(3) private foundations & 501(c)(4)s/501(c)(5)s/501(c)(6)s

·      Private foundations can also fund 501(c)(4)s, (c)(5)s, and (c)(6)s, but they must follow what are called the expenditure responsibility rules when granting to any non-(c)(3) organization.

 

501(c)(3) public charities & 501(c)(4)s/501(c)(5)s/501(c)(6)s

·      Public charities, including public and community foundations, can also collaborate with and fund (c)(4)s, (c)(5)s, and (c)(6)s.

·      Remember, your tax-exempt status follows your organization into any coalition work, so (c)(3)s must track any lobbying they engage in on behalf of or in support of the coalition and continue to stay within their lobbying limits.

·      All joint activities and campaigns must be nonpartisan, and any grants from a c3 to a c4 must prohibit the use of funds for partisan political activity.

·      The IRS will count the full grant from a c3 public charity to a c4 as a (c)(3) grassroots lobbying expenditure, unless the grant agreement explicitly prohibits the use of funds for lobbying or states what portions may be used for direct and for grassroots lobbying.

 

501(c)(4)s/501(c)(5)s/501(c)(6)s & 527 political organizations

·      501(c)(4)s, and all other corporations, should avoid making monetary or in-kind contributions to a political organization or candidate. These types of contributions are prohibited in federal elections, as well as in most state and local elections.

·      However, 501(c)(4) corporations may establish a traditional federal PAC via a Separate Segregated Fund.

o   501(c)(4) corporations may not contribute to this federal PAC or any other political organization, but they can pay for a connected SSF’s administrative costs.

o   There are other special limitations for this type of PAC, including that it can only raise funds from the connected organization’s bona fide members and its executive and administrative personnel and their families.

 

Resources

·      Alliance for Justice, The Connection: Strategies for Creating and Operating 501(c)(3)s, 501(c)(4)s, and Political Organizations (See p. 11 for chart comparing tax-exempt organizations)

·      Alliance for Justice, Focus on Foundations

·      Alliance for Justice, An Introduction to PACs

·      Alliance for Justice, How to Fund a 501(c)(4)

Ballot measures give voters a chance to participate in direct democracy while providing nonprofit organizations with a powerful platform to educate the public about issues they champion. In this episode, we discuss California’s pending redistricting ballot measure and other developments in direct democracy with returning guest Emma Olson Sharkey.

Attorneys for this Episode

• Tim Mooney

• Susan Finkel Sourlis

• Emma Olson Sharkey, Elias Law Group

The Importance of Ballot Measures

·       Ballot measures give voters direct power to shape laws and policies, bypassing legislatures.

·       For nonprofits, they’re a powerful platform to educate the public and advance mission-driven issues.

·       Emma Olson Sharkey—partner at Elias Law Group and one of the nation’s leading ballot measure experts—returns to share insights (last heard in ROTG 96).

California’s Prop 50: Mid-Cycle Redistricting

·       Background: California has an independent redistricting commission that drew maps in 2021 for the 2022 elections.

·       New twist: In response to Texas’ recent partisan maps, Governor Newsom and allies pushed for mid-decade redistricting.

·       The ballot measure: Prop 50, passed by the legislature and signed by the Governor, will go to voters in a special election on November 4, 2025.

Redistricting Through Ballot Measures

·       Ballot measures have long been used to reform redistricting across the U.S.

·       Examples:   – Successful: Colorado (2018), Michigan (2018), Missouri (2020), Ohio (2018).   – Unsuccessful: Ohio’s most recent attempt.

·       Mid-cycle redistricting isn’t new: Texas pioneered it in 2003 under Tom DeLay, and the playbook has returned in 2025.

What Nonprofits Need to Know

·       501(c)(3) Public Charities: May engage in ballot measure advocacy—it counts as lobbying. Key distinction: ‘Vote yes/no on Prop X’ = permissible lobbying; ‘Vote for Candidate Y’ = prohibited partisan activity.

·       Because Prop 50 is rooted in partisan battles, public charities must tread carefully and seek legal advice before weighing in.

·       Generally safe activity: nonpartisan voter engagement (e.g., get-out-the-vote drives, voter registration), but seek counsel especially around Prop 50.

·       501(c)(4)s and Labor Organizations: Have far greater leeway—no cap on lobbying. But California’s strict regulatory environment requires attention to registration and reporting obligations.

Restricting Access to Ballot Initiatives

·       Since 2016, conservative legislatures have increasingly tried to restrict citizen-led ballot measures.

·       States in the spotlight: North Dakota, South Dakota, Wyoming, Missouri, Florida, Oklahoma, Arkansas.

·       Many proposals fail, but recent years have seen more succeed, especially in Florida and Arkansas.

·       Missouri is considering both mid-cycle redistricting and ballot measure restrictions in the same session.

A Bit of Good News

·       South Dakota victory: A federal court struck down H.B. 1184’s nine-month filing deadline for ballot measures as unconstitutional, reaffirming citizens’ First Amendment rights.

·       Practical impact: Keeps the window open for grassroots groups to gather signatures and qualify measures.

Resources

Seize the Initiative: A Legal Guide on Ballot Measures for Nonprofits and Foundations — https://afj.org/wp-content/uploads/2020/04/Seize-the-Initiative-2020-2.pdf

Being a Player: A Guide to the IRS Lobbying Regulations for Advocacy Charities — https://afj.org/resource/being-a-player-a-guide-to-the-irs-lobbying-regulations-for-advocacy-charities/

The Rules of the Game: A Guide to Election-Related Activities for Nonprofit Organizations — https://afj.org/resource/the-rules-of-the-game-a-guide-to-election-related-activities-for-nonprofit-organizations/