Election season provides a great opportunity for nonprofits and foundations to elevate their issues with voters and candidates. On this episode we’re going to look at ways a variety of tax-exempt entities can engage in outreach to candidates and engage with political parties. We’ll look at ways nonprofits can attend political party conventions, help shape candidate and party platforms, educate candidates on community issues, respond to candidate questions, and more. 

Attorneys for this episode

• Natalie Roetzel Ossenfort 
• Leslie Barnes 
• Victor Rivera Labiosa 

Show Notes 

• 501(c)(3) public charities can educate candidates on community issues. They can engage with candidates during in-person visits, phone calls, issue briefings, etc. 

• Just remember, public charities must remain nonpartisan in their outreach by trying to ensure that each candidate is provided with identical or equivalent communications. 
• Also note that if the candidate is an incumbent legislator, communication with them could be lobbying if you express a view on specific legislation. 

• Not only can 501(c)(3) public charities proactively reach out to candidates to share information about their missions and research, but they can also respond to candidates’ questions. But there are a few things to keep in mind. 

• The 501(c)(3) should treat candidates as they would other members of the public. For example, if a candidate calls for any data, you can point that candidate to your website just like you would with anyone else. The important thing is that you are not compiling data just for the candidate or their campaign and that you’re not conducting new research because a candidate requests it. This could be considered a candidate contribution. 

• Take care not to serve as a policy strategist or research arm of the campaign. Remember, the 501(c)(3) should be careful about allowing its name to be used by the candidate’s campaign. 

• We recommend as a best practice to designate an experienced staff member to talk with candidates. 

• 501(c)(3) public charities can shape candidate and political party platforms and encourage candidates and political parties to talk about the issues. 

• Take care not to praise or criticize a candidate that adopts your organization’s policy issues. 
• To keep things nonpartisan, include a disclaimer in oral and written testimony that information is being provided for educational purposes only. 

• 501(c)(4)s can engage in some partisan activity (support or opposition of candidates), but should be aware of FEC and other state laws prohibiting corporate campaign contributions 

• (c)(4)s cannot coordinate strategy with federal candidates. 
• (c)(4)s may be able to work with state and local candidates in about half of all states by following state campaign finance laws. 
• Not all outreach and engagement amounts to a contribution – keeping it nonpartisan as part of your primary purpose 

Resources 

• Nonpartisan Candidate Education: How 501(c)(3)s Can Talk to Candidates During an Election Year — Bolder Advocacy   Factsheet  
• Hosting Candidates at Charitable Events: Ensuring Candidate Appearances Remain Nonpartisan — Bolder Advocacy (factsheet)  
• Rules of the Game: A Guide to Election-Related Activities for 501(c)(3) Organizations  
• The Connection 

On this episode, we revisit a very specific type of lobbying that doesn’t necessarily seem like lobbying in the first place. Ballot measures can range from local bonds to state constitutional amendments, and everything in between. What can nonprofits do to support or oppose them, and how do they comply with state and federal law?  

Our attorneys for this episode 

• Tim Mooney 
• Natalie Ossenfort 
• Quyen Tu 

What are Ballot Measures? 

• Called different things in different states and localities 

• • Bond 
  • Constitutional Amendments 
  • Referenda 
  • Ballot questions / initiatives  
  • Propositions 
  • Any policy matter put to a vote of the general public 

• There are no federal ballot measures, but federal law has one major thing to say aboutmeasures for 501(c)(3)s 
• State and sometimes local laws cover campaign finance and reporting requirements 

Can nonprofits take a stance? 

• No. End of episode. (just kidding!) 
• Most can. All 501(c)s that aren’t charities or foundations can (generally) do an unlimited amount of ballot measure advocacy, but must follow state and local laws for reporting their work 
• Public charities can take a stance, but ballot measures are lobbying (which is why this episode is in the lobbying series!). From there, they also have to follow state and local laws for reporting their work 

• Private foundations cannot take a stance on ballot measures (again…lobbying) without being hit with a big excise tax 

Wait, lobbying? Tell me more. 

• Boil it down? Voters are a giant legislative body 
• Direct lobbying, not grassroots – and that’s good because charities can do more direct lobbying 

• Doesn’t violate the prohibition on electioneering to support or oppose measures because they are not related to candidates 

• Be careful to make sure your org’s advocacy isn’t seen as/tied to a candidate’s position on theballot measures 

• Clock starts ticking when petitions go out to qualify for the ballot or (probably) when you’re lobbying legislative bodies when they are determining whether to refer an item to the voters 
• Count all prep work, staff time, communications costs, etc. 
• You non-c3s? Tax law doesn’t restrict lobbying, and this counts toward primary purpose activity… so load up on your GOTV and voter reg work on ballot measures and (strategy time!) it can offset candidate work you do. 

State laws… 

Every state is different, starting with the fact some states don’t have ballot measures at all. Even states without statewide ballot measures like NY have local bond measures though. 

Any state or locality with ballot measures has some kind of registration and reporting laws 

We have state law resources for your state! Examples: 

Texas 

Corporations (including nonprofits) can support or oppose ballot measures in Texas. 

• Texas Election Code defines a political committee as two or more persons acting in concert with a principal purpose of accepting political contributions or making political expenditures. Since the definition of “persons” includes nonprofit corporations and expenditures and contributionsinclude those made in connection with a measure, it is possible for nonprofits to trigger PAC registration and reporting in Texas even if they don’t do any candidate-related work. 
• TRANSLATION: if a group of nonprofits comes together to raise funds for the support or opposition of a measure, they may need to register and report as a PAC. 
• It is also possible that if a nonprofit acts on its own to impact a ballot measure, it could trigger direct campaign expenditure (aka independent expenditure) reporting even if it doesn’t coordinate its work with other organizations or individuals. DCE reporting, as it’s sometimes referred to, kicks in when more than $100 is spent to support or oppose a measure. 
• Of course, there are other scenarios as well that might not require state-level reporting in the ballot measure context in Texas (e.g. nonprofit contributions to a ballot measure only PAC), so feel free to reach out to our TX team if you have any questions about when and what you have to report when you engage in ballot measure advocacy. 

Oregon 

• Trivia: Oregon is one of the first states to adopt ballot measures… started them in 1902 (just behind SD and UT) 
• Five forms: state statutes (legislature or citizen referred), constitutional amendments (legislature or citizen referred), and veto referenda. 
• If your nonprofit’s purpose is to support/oppose a ballot measures you have to register as a political committee 
• No contribution limits (those are unconstitutional per SCOTUS)  

• Real time online reporting (ORESTAR!!!!) 
• 3 reporting periods 
• Contributions over $100 – the name/address of the donor disclosed 

California 

• These rules are about transparency and tracking money in CA elections. 
• Most important: if you engage in certain fundraising activities or spending, you could become aballot measure committee and not even know it. That means your nonprofit would have filing and reporting obligations. 
• There just isn’t enough time to do justice to the CA BM rules on this show so if you’re interestedin a whole show, please shoot us an email 
• Ballot measures are treated as campaign activity 
• Rules are designed so that when people or organizations accept or spend money for ballot measures, it gets reported by someone. 

• When there is advocacy for a ballot measure, there will be a main ballot measure committee.Must report contributions of $100+, whether financial or in-kind, and expenditures. This usually works best as a separate entity from a 501(c)(3). 
• Even if you are not the main ballot measure committee, there are ways NPs could trigger reporting with the FPPC 

• receiving or spending money on ballot measure advocacy 

• receive $2k+ in calendar year earmarked for ballot measures, you become a recipient committee. Recipient committees have to report their donors. 
• Another way to become a recipient committee is to spend at least $50k in non-earmarked donated funds. At these higher levels of spending it gets more detailed so please check out our resources.  

• Major Donor Committee: give $10k+ in calendar year to a recipient committee (staff time counts) but does not receive $ earmarked for ballot measures 
• Independent Expenditure Committee: spends $1k+ in a calendar year on communications that expressly advocates for/against ballot measures and not made in coordination with a ballot measure committee 

• Non reportable activities: 

• 10% or less of staff time 

• Paid staff time counts as an expenditure, or if it’s coordinated with a ballot measure committee, a contribution. If you have staff spending more than 10% of their time in any calendar month on ballot measures, you need to consider that expenditure towards these thresholds. 

• Newsletter 
• Member communications 
• Contracted services to the ballot measure committee 
• Certain limited fundraising expenses 
• Raising money for the ballot measure committee where the contributions go directly to theballot measure committee (funds do not pass through the org)  

• You can ask people to donate to the main ballot measure committee and only your fundraising costs would count as a contribution toward these thresholds, some fundraising costs are even exempt from reporting. 

Final thoughts? 

• Often critically important advocacy 
• Private foundations! You can and should support this work, even though you cannot directly advocate or fund it. How? 

• • general support grants 
  • specific project grants for non-lobbying portions of the work 
  • educate the public about the ballot measure process 
  • communications that qualify as nonpartisan analysis 
  • communications that are neutral urging voters to study the issue 

Resources 

• Bolder Advocacy ballot measure toolkit 
• Seize the Initiative 
• Foundations and Ballot Measures 

• California Campaign Finance and Ballot Measure Guide 
• Ballot Measure Activities Exempt from California Disclosure Laws 
• Initiating Policy Change: Circulating Ballot Initiatives in California 
• Texas Campaign Finance and Ballot Measure Guide 

Our team at AFJ is devastated but determined following the Supreme Court’s ruling to overturn Roe v. Wade. The decision permits states to regulate our bodies and the most intimate of health care decisions – when to have a child, when to start a family. This horrific decision made possible by a rigging of rules & troubling power plays will irreparably harm our communities and our families. Make no mistake, this decision contains deeply flawed legal reasoning, designed to return and roll back rights for women, Black and Brown residents, and LGBTQ individuals. But since this isn’t a legal analysis show, we wanted to focus on what comes next? What can nonprofits and the communities they serve do following the Dobbs v. Jackson Women’s Health Organization decision? And most importantly… How can we fight back? 

Attorneys for this episode

Natalie Ossenfort Leslie Barnes Tim Mooney 

Shownotes

• Very little changed from the draft – for a great deep dive on the draft and opinion, be sure to listen to the excellent analysis at the Strict Scrutiny podcast
• State laws vary widely
• For nonprofits, nonprofits can and should engage in lobbying
• Ballot Measure Advocacy
  • Add/defend state constitutional privacy protections (MT, KS)
  • in states where there is public support for access to abortions, but the legislature may oppose abortions. (AZ, GA, MI, NC, NH, PA, WI) Abortion Battlefields in a Potentially Post-Roe Political World – Sabato’s Crystal Ball (centerforpolitics.org)
• AFJ State Court resources
• Corporate advocacy
• 501(c)(4)s can target advocacy based on electoral outcomes.
• Justice Thomas’ dissent highlights the issues to come

Resources 

• Strict Scrutiny podcast – deep dive into the draft and final opinion in Dobbs v. Jackson Women’s Health Organization Roe is dead. Now what? | Strict Scrutiny (simplecast.com)
• 5 Ways Nonprofits Can Respond to Dobbs v JWHO
• AFJ’s Social Media Toolkit to respond to Dobbs v JWHO 
• AFJ’s State Court Justice Project – to research and tap into action on state Supreme Court races
• AFJ’s Bolder Advocacy Podcast on Reproductive Rights Advocacy, recorded pre-Dobbs decision
• AFJ’s Reproductive Rights Advocacy Toolkit for Nonprofits