The proliferation of hate speech has fanned the flames of anti-Asian sentiment with messages associating China with the COVID-19 pandemic, all while downplaying the real and present threat of domestic terrorism fueled by white nationalism. And as we have seen over and over, speech has consequences with blood on the hands of murderers — not only in recent shootings but for the consistent escalation of violence against Asian Americans and others. 

A disturbing combination of widespread prejudicial sentiment and easy access to guns makes tragedies like this far too common. Messages of misogyny, xenophobia, and white supremacy fill the air we breathe, masquerading as conservative sentiment as they infect the minds of those who could be spurred to act violently. In recent years, we have seen targeted attacks against people of color, religious minorities, the LGBTQ community, and other vulnerable populations, and we have failed to address the patterns of who commits these atrocities and what inspires and allows them to do so. 

On this episode, we’ll be talking about nonprofit advocacy against hate, bigotry, and discrimination.   

 

Attorney Co-hosts  

Jen 

Quyen 

Shyaam 

 

Introduction 

• Nonprofits have an essential role to play in fighting hate in all its forms, by educating the public, pressuring elected officials and candidates, and organizing community members to raise awareness about identity-based violence and discrimination. We’re going to highlight a few nonprofit advocacy efforts today, and talk about how you can stand up to hate as a nonprofit organization.  

• We have to acknowledge what’s happening now and our collective past history  

• Attacks against people based on their race or ethnicity 

• Rise in hate incidents and hate crimes against APA community because of Trump’s insistence on blaming China for the coronavirus 

• Between March 2020 and Feb 2021, almost 3,800 incidents reported to Stop AAPI Hate. Fraction of the real number. 

• Attacks against Middle Eastern, Arab, or Muslim Americans after 9/11 

• LGBTQIA+, violence against trans-people 

• We want to be clear that we know there’s so many ways hate is spreading right now, but we chose to lift up a few examples to affirm for public charities that Combating Hate is always on mission.   

• This episode isn’t heavy on rules.  If you’ve been listening, you know that public charities can’t be partisan and that to determine partisanship, the IRS will apply the facts and circumstances test to campaigns and communications.   For 501(c)(3) organizations, the important analysis will be to understand an organization’s risk and the continuity of its messages.  

Example 1: Briefly Review the Facts and Circumstances Test for Public Charities. What about anti-hate messaging when connected to voting – e.g., vote for love not hate! 

 

• The IRS will apply a facts and circumstances test and while we don’t know everything the IRS would look at, here’s examples of how we would walk through the analysis. 

•  Does the communication or ad or website reference a candidate or election? (that’s a no-no) 

•  Is there some other external factor influencing the campaign like a bill up at the state house?  

• Is this part of the on-going mission of the public charity? And is this messaging similar to or in connection with other forms of communications on the topic (i.e., part of an on-going long-standing campaign). 

• If it’s a wedge issue, or looks like a campaign slogan, a nonprofit public charity should proceed with caution.   

 Example 2: NAKASEC.  The National Korean American Service & Education Consortium has an affiliated—or connected—501(c)(4) known as the NAKASEC Action Fund.  In 2020, NAKASEC AF wanted to forcefully push back against a Virginia Congressional Candidate selling a mask that suggested the coronavirus was “Made in China.”  This phrase was on the mask. They ended up releasing statements and a letter, and organized with partners. They explained that blaming China for the COVID-19 crisis has led to a sharp increase in racially motivated attacks against people of Chinese descent and others perceived to be of Chinese descent. In fact, in March of 2020, the FBI warned that hate crimes against Asian Americans were likely to rise because of perceptions that people of Asian descent were spreading the virus. Their advocacy was picked up by major media outlets. You can find stories on NAKASEC AF’s advocacy against these masks in the Washington Post, Fox News, NBC News, and numerous local outlets in Virginia. After a few days with public pressure, the candidate pulled the masks! 

• As far as the rules go, 501(c)(3)s may not support or oppose candidates for public office, but c4s can, to a limited extent. there is room to even suggest candidates should be held accountable for actions like these in the election.  

• Anti-hate is always on mission. Even though a 501(c)(4) took the action above, through our analysis, we think a 501(c)(3) likely could have as well.   

• Example 3: Ahmaud Arbery “Finish the Run” event. Runner’s World is a 501(c)(3) nonprofit but utilized its platform to call in various ways to run against hate.  It even created a separate foundation to Finish the Run.   https://www.runnersworld.com/news/a35521521/ahmaud-arbery-virtual-run-finish-the-run  

• This is a great example of using your platform to fight discrimination even when the core of your mission is based on something else (here supporting and promoting running).  

•  Example 4: Muslim Advocates. Muslim Advocates is a 501(c)(3) often calls out elected officials and other leaders for bigoted language against Muslims – for example, inventing threats posed by Muslims to the country, misinformation about what Islam requires of followers, or advocating for policies that would be a violation of basic constitutional rights of Muslims. Muslim Advocates has even done a report on campaigns in the past that have featured anti-Muslim rhetoric.   

• There are a number of important points about these efforts, even though some were around elections. Where MA spotlighted or went into detail – it was around campaigns in elections that had already passed. They included disclaimers in their report, and they tried to summarize and describe the nature of comments rather than advocate for the election or defeat of any particular candidate or candidates. If you’re talking about campaigns and elections that have already passed, it’s important to not take credit for an outcome. It’s going to be risky to discuss campaigns still pending or upcoming elections – however, you could discuss comments in the aggregate.  

• It’s still possible to be forceful, clear, and strong against hate as a 501(c)(3). 

 

 

Bolder Advocacy Resources 

 

Commenting on Candidates and Campaigns: https://www.bolderadvocacy.org/wp-content/uploads/2012/08/Commenting_on_Candidates_and_Campaigns.pdf  

Commenting on Candidates’ Statements about Immigrants: https://www.bolderadvocacy.org/wp-content/uploads/2018/06/Commenting-on-Candidates-Statements-about-Immigrants.pdf 

LGBTQ Toolkit: https://bolderadvocacy.org/wp-content/uploads/2018/07/LGBTQ-toolkit-2019-Final.pdf  

Press Statement on Atlanta Attacks:  https://www.afj.org/article/afj-condemns-hateful-attack-on-asian-americans/ 

 

 

Other resources: 

Department of Justice: https://www.justice.gov/hatecrimes, has link to state specific information 

LCCR Stop Hate: https://lawyerscommittee.org/project/stop-hate-project/  

Stop AAPI Hate: https://stopaapihate.org/ 

Muslim Advocates: https://muslimadvocates.org/advocacy/addressing-anti-muslim-political-rhetoric/ 

NAKASEC Action Fund’s letter: https://nakasecactionfund.org/11546 

Bob Jones University v. United States:  https://www.law.cornell.edu/supremecourt/text/461/574 

On this episode, we’ll be talking about that special once a decade process of redistricting.   

 

Because this is the sixth episode in our lobbying series, we’re describing this as your midterm test, applying our lobbying and advocacy 101 podcasts to a particular policy proposal: redistricting.   

 

Attorney Co-hosts  

Jen 

Tim  

Quyen 

  

A brief civics lesson about redistricting—the process by which the states draw lines on a map to create electoral districts.   

• The census is constitutionally required in part because our federal house of representatives originally kept growing to proportionally represent an entire state’s population. 
• Fun facts: Because the house of representatives kept growing as our country grew, Congress adopted a “cap” of 435 house members under the Apportionment Act of 1911. That cap is still alive today. 
• For redistricting at the federal level then, every census requires we count each individual.  Then the Congress apportions the 435 seats to the states based on the population changes.  In other words, Congress gets to reassign some seats to states with big populations so that they get a “larger voice” in the house of representatives. 

• Once apportioned, the last step is that a state process occurs and lines on a map are drawn to determine the districts for those federal elected officials as well as state and local elected seats. 

 

Since we’re dealing with Covid still, the timelines for this process have been pushed.  There’s plenty of time for you to get involved and make your voice heard.  

 

Are all states the same?  

• Of course not!  Because states are permitted to draw the lines, every state has a unique approach with some states allowing the state legislature to vote on the map while others provide a bi-partisan or other type of citizen driven commission.   

Redistricting rules of the road 

 

While it would be fun to discuss the laws and legal standards about how to draw a district –things like ensuring roughly an equal number of voters in each district, and that districts do not unfairly pack certain voters into one space while cracking geographic or other affinity groups into multiple districts.  This podcast is about what you—as a public charity or a private foundation—can do in your state around this process.  

 

• So what does that mean:  it means lobbying for equality and justice in states where the legislature must approve the maps. 
• It can also mean plain old advocacy in states where there is a commission adopted to deal with this process.  

 

For example, in California, there’s a commission that draws the maps and it is made up only of citizens that apply and go through a rather lengthy process.   

 

• This means advocacy to the commission is not lobbying.   
• Since the commission is formed though, so long as it has the final authority to finalize the map of the districts, then any work contacting the commissioners, appearing before the commission, even drawing your own map and providing it to the commissioners will not be considered lobbying. 
• Since every state does this process a little different, check out our links below that will take you directly to how your state conducts this process.   

 

In contrast, in Texas, as in most states, redistricting still requires the state legislatures to adopt the maps.  For a public charity, this means working with legislators on redistricting is lobbying.   

 

• As a public charity, you can always lobby on items that your legislature has to vote on and maps drawn by the legislators for how you elect your representatives is no different. 
• Your lobbying can include items that address the historical discriminatory patterns related to race, but also items that make your community unique.  Some items that can generally be looked at include: 

• Income levels 
• Housing patterns (suburban, rural etc) 

• Language or cultural identification  
• Environmental conditions 

• Another great example for lobbying is to know the model!  For example, in Texas, members of the public will have access to the same program (RedAppl) to draw alternative maps for legislators’ consideration but unless your organization understands how the program works—what assumptions it makes about various factors related to population (age, race, sex etc), you won’t really have a good idea of how those maps are dividing up communities.   

 

But as a public charity, in either states that use the legislative process or those with citizen appointed or other forms of commission, a public charity cannot engage in partisan politics.  

• Items that a nonprofit public charity could not lobby on include things like “saving a seat” or “flipping the district.” 
• Why?  Well, that is partisan work—the same lobbying rules apply to redistricting maps and methods as apply to your work on getting a new bill passed.  Stay on policy, and avoid mentioning candidates, races, or elections.  

  

What about private foundations funding this work? 

 

• We plan to do a whole series on how to fund effective work.  But for this episode, its important to know that private foundations can fund organizations that do advocacy and those that do lobbying as well. 
• Private foundations cannot earmark grants for lobbying and there are some rules for private foundations to ensure they are not using their own dollars to lobby indirectly in ways that they are not permitted to do directly.   
• But beyond that, the philanthropic world should be concerned with redistricting not only at the federal level for the House of Representatives, but at the state level for city council districts, state districts etc. 

 

What?!  The state gets to draw new lines for its own house of representatives too? 

 

• That’s right:  redistricting isn’t just for the federal house of representatives.  As states grow in population, states have to redraw their own lines, and even some cities do the same thing.  This is in part to abide by the principle of one person one vote, but also because our communities constantly change shape and size.   

 

This is why its so important for nonprofits to ensure their community knows this process is happening.   

 

Bolder Advocacy Resources  

• Mapping the Future: the Redistricting Process for Private Foundations 
• Influencing the Redistricting Process By Standing Up for Your Community 
• Influencing Redistricting in California 

Other resources: 

https://www.ncsl.org/research/redistricting/redistricting-systems-a-50-state-overview.aspx 

https://www.everycrsreport.com/reports/R45951.html (2009) 

https://funderscommittee.org/files/Collaborative_RedistrictingGuide_2.pdf (2010) 

https://redistricting.lls.edu/ – PROF. JUSTIN LEVITT’S GUIDE TO DRAWING THE ELECTORAL LINES 

Timeline for Releasing Redistricting Data for updates from the US Census Bureau on the timeline 

Lobbying Series Part 5 – Recordkeeping 

On this episode, our fifth in our on-going lobbying series, we’ll focus on how 501(c)(3) public charities can keep good records of their lobbying and why it is important. 

Attorney Co-hosts 

• Quyen Tu 
• Tim Mooney 
• Natalie Ossenfort 

Quick reminders: Check out the prior four episodes in our lobbying series on basics, definitions, and exceptions. 

Recordkeeping! The IRS must have a thousand rules! 

• Would it surprise you that the answer is not really? 
• IRS has a “reasonableness” standard 
• If you are audited you are expected to be able to show your math on what you reported on your Form 990. 

 Why keep good records of your lobbying? 

1. Charities must report their lobbying to the IRS every year.
2. Exceeding lobbying limits leads to excise taxes and (eventually) jeopardizes tax-exempt status.
3. Recordkeeping lets electing charities do more lobbying without fear.
4. Recordkeeping helps a charity raise funds more effectively.
5. Good recordkeeping is protection against false accusations.
6. Recordkeeping is a good management tool. 

         

 What do you track? 

• Direct Costs 
  • Travel 
  • Printing costs 
  • Anything with a receipt that is all or mostly for lobbying 
  • Primary purpose is lobbying? Count it all. Less than half? Split proportionately. 

   

• Staff Time 
  • Best option: Timesheets 
  • Occasional lobbying: Lobbying “incident” report 
  • One-shot lobbying: Memo to file 

   

• Overhead costs 
  • Easiest with time sheets 
  • Add up total hours worked and total hours spent on direct lobbying 
  • Apply the percentage to all overhead (rent, utilities, internet access, support staff, etc.) 
  • Repeat for grassroots lobbying 

   

Junk drawer of final thoughts 

• Do not adopt a system just because it is used by another organization – use the one that is most reasonable for your organization. 
• Remember there are state and local reporting requirements too – make sure those are integrated into your system. 
• Timesheets have much more utility beyond tracking lobbying – consider that when making your decision on a system. 

 

Resources

Keeping Track: A Guide to Recordkeeping for Advocacy Charities 

Being a Player: A Guide to the IRS Lobbying Regulations for Advocacy Charities 

Sample Timesheets 

• Simpler Timesheet 
• Simplest Timesheet 
• Complex Timesheet 
• Simple Timesheet for Affiliated Organizations 
• Complex Timesheet for Affiliated Organizations 
• Timesheet with Lobbying Disclosure Tracking 

 

Lobbying Series Part 4 – Lobbying Exceptions 

On this episode, our fourth in our on-going lobbying series, we’ll focus on lobbying exceptions for all 501(c)(3)s, even private foundations.   

Attorney Co-hosts 

Leslie Barnes  Tim Mooney  Shyaam Subramanian 

 The Basics  

• Reminder to check out the last two episodes on direct and grassroots lobbying for the definitions under 501(h). 
• We’ve spent a lot of time talking about the importance of lobbying as a matter of good policy. You know who else agrees? Congress and the IRS! 
• The law and regulations set up several lobbying exceptions – specific activity that is so important for policymaking that even though it would count as lobbying under the definitions, Congress and the IRS specifically exclude it from the tally. 
• Even better – remember when we mentioned private foundations are heavily taxed if they engage in lobbying? These exceptions are available to them as well! 

• Are you an organization that uses the insubstantial part test to measure lobbying? You may use some of these exceptions, but there are differences. Give us a call!   

The Exceptions 

Nonpartisan Analysis, Study, or Research (“The 50 Page Report Exception”) 

• An exception to grassroots and direct lobbying 
• Probably the most important exception – many charities do a ton of advocacy work, and may report no lobbying because they use this. 

• Full and fair discussion 
• Distributed widely 
• May contain a view on legislation 
• May also contain an indirect call to action (and only an indirect one!) 
• Typically, this is a written report, but the regulations don’t mandate that. Could be a podcast or a YouTube video, so long as the two prongs are met. 

• The synergy effect: non-lobbying report aids parallel lobbying efforts. 
• Watch out for subsequent use! 

• Don’t use this exception, then slap a cover letter on the report and include a direct call to action. This negates the whole exception for the report and then it all counts as grassroots lobbying. 
• That’s a rebuttable presumption, so there are some ways to back out of it, but it’s very narrow.  

Examinations of Broad Social, Economic, or Similar Problems (“The Less Helpful Than It Seems Exception”) 

• You discuss broad social, economic, or similar problems but do not express a view on specific legislation. 
• Example: You about the problems uninsured people have accessing healthcare, without discussing legislation to fund a national healthcare program that provides health insurance for all Americans. Could think of it as, “we’re talking about the problems, not the solutions.” 
• You might think – wait, if we’re not talking about legislation, how is this an exception? And we agree. But I think it is useful in the sense that you know you can comfortably talk about problems if you don’t talk about specific legislative solutions. You could even talk about administrative solutions! For example, President Biden should block the Keystone XL pipeline through an Executive Order. Not legislative! Or “Corporations should prioritize climate and energy efficiency goals, not just profit.” Not even about policy but could be impactful. 

Technical Advice or Assistance (“The Permission Slip”) 

• Providing testimony to legislative committees will often count as lobbying. But Congress wanted to ensure they had access to experts on subject matter relating to legislation. So, they included the Technical Advice or Technical Assistance exception as one of the activities that will not as lobbying for public charities or private foundations.     So when you hear us say “Nonprofits are trusted messengers” this is part of what we mean. Congress wants to hear from you!!    The elements or requirements of this exception are:

• Written request from a governmental body (e.g., legislative committee or subcommittee); 
• Response is available to every member of the body; 
• Response is limited to details of request; and 
• Response can include opinions or recommendations if requested. 

What it’s not: 

• Responding to a request from one or two legislators or a caucus of House Democratic lawmakers for input on a bill draft. 
• Responding to a general public notice for an upcoming city council meeting for which members of the public are invited to testify.  

One example of how it could be used: 

The Chair of the House Health and Public Policy Committee sends an email to your organization asking the Executive Director to testify next week on the specific portions of a bill dealing with parental notification of minors prior to medical procedures.  Your staff could spend time compiling data needed for the ED’s testimony as well as preparing a large visual display and preparing a section by section analysis of the parts of the bills the Chair’s inquiry pertained to and copies for each committee member. The staff and ED’s times spent preparing to testify as well as the time and resources spent to testify would NOT count as a lobbying expenditure.    Self-Defense (“The Not as Available as it May Seem at First Exception”) 

• An exception to direct lobbying 

• communications with legislators regarding possible actions of that body which could affect the organization’s existence, powers, duties, tax-exempt status, or the deductibility of contributions to the organization. 
• So long as the subject matter of the communication is limited to these specific areas, an organization may communicate with legislative bodies, their staff or even their individual members, and may also make expenditures to initiate legislation dealing with these specific topics. 
• What it’s not: hey, we’re a neighborhood group opposing development of the farm next door into a cement plant because it will effectively destroy our neighborhood. Important advocacy, but not impacting the existence or powers of the organization. 
• What it’s not part 2: A bill pending in Congress would raise the bulk mailing postage rates for nonprofits. Important to lobby perhaps, but just impacts your costs not your power. 
• What it could be: any attempts by Congress to limit (for example) civil rights organizations or environmental groups from qualifying as charities. Or limiting tax deductibility of donations to groups that lobby (sidebar: you can’t earmark donations for lobbying and get a deduction). 

• This exception can be used prospectively as well as defensively. So a bill to temporarily increase deductibility of donations through the end of COVID would qualify. 

Jointly Funded Project Exception 

• If private foundations communicate with legislators about legislation impacting programs they jointly fund with government, it’s not lobbying under IRS rules. To use this exception, private foundations must not discuss specific legislative issues unrelated to the jointly funded program. 
• Example: Regional Census Fund.  The Seattle Foundation contributed money to this effort and administered the fund. The City of Seattle and King County each invested resources in the effort. The fund supported community-based organizations to conduct Census outreach in hard-to-count communities. They reached out to residents in historically underrepresented communities, including communities of color, immigrants and refugees, native people, LGBTQ residents and others. Note: Seattle Foundation is a public charity.  
• This exception also applies to PROSPECTIVE jointly funded projects! So, if the private foundation is considering jointly funding a project with the govt. they could engage in conversations w lawmakers under this exceptions. 

• Also, if a private foundation makes a grant to an organization on the condition that the organization receive matching support from a governmental body, that fact does not make the grant a lobbying expenditure. 

 

How are these reported?  

They aren’t – track these as you would any other non-lobbying activity. 

Junk drawer of final thoughts 

Reminder: private foundations can use these exceptions. 

These aren’t lobbying, so often you can use restricted funds on these.  

Prep work for these activities also does not count as lobbying. 

We’re not sure if the advocacy we want to do is in an exception or not. Get in touch!  

Resources: 

Being a Player: A Guide to the IRS Lobbying Regulations for Advocacy Charities  

What is Advocacy?  

Worry-Free Lobbying For Nonprofits: How To Use The 501(h) Election To Maximize Effectiveness  

Public Charities Can Lobby: Guidelines for 501(c)(3) Public Charities (Factsheet)  

When Does Your Activity Become Lobbying? (Factsheet) 

What is Lobbying Under 501(h)? (Factsheet) 

Technical Advice Exception (Factsheet) 

Nonpartisan Analysis Study and Research Exception (Factsheet)