On this episode, we discuss the unprecedented election-year challenges we face and the ways all nonprofits can help ensure a safe election. As trusted messengers, nonprofits can explain voting options and deadlines; encourage absentee voting and a new generation of poll workers; conduct election protection programs; support and join litigation and even facilitate voting and promote increased voter turnout. 

This is the first of a three-part series. Part 2 on Election Day(s) Advocacy. Part 3 on Post-Election Advocacy. 

Our attorneys for this episode    

Leslie Barnes  

Tim Mooney  

Quyen Tu  

Shownotes 

• Election-year challenges 

• Dangers for in-person voting 
• Massive poll worker shortage 
• Monumental increase in voting by mail 

• Predictions for contested elections/delayed results 
• Defunding the United States Postal Service 
• Interference in the election by foreign and domestic actors 

• Reminder – 501(c)(3) organizations must remain nonpartisan  
• When We All Vote Video – Voter Registration Drives 

• https://youtu.be/XNt-9v3HY30s 
• Created by a c3, When We all Vote 
• Shared by a c3, NAACP Legal Defense and Education Fund 
• Nonpartisan – no support or opposition for any candidate for elected office 

• Explains how schools can create and promote a voter registration drive  
• Explains how volunteers can share news of newly registered voters on social media 
• Safe for community foundations and c4s too! 
• Special rules exist for private foundations  
• Can’t buy votes. Don’t exchange anything of value for someone completing a voter registration form or voting. 

• Can spend money to facilitate voting – Examples  
• Must also follow state law regarding voter registration and drives 
• IRS permits targeting voter outreach for nonpartisan reasons  

• Fair Fight Action Video – Vote By Mail/Voter Education 

• https://www.youtube.com/watch?v=HFl6AYki1B8 

• Encourages Georgians to vote by mail to shorten lines for those who must vote in person and reduce risk for all 
•  
• Fair Fight Action is a 501(c)(4) and could engage in partisan activity as secondary activity 
• This video is a nonpartisan example of voter outreach/education – primary activity 
• Safe for c3s to share as well! 

• Houston Justice Coalition Post 

• Safe for c3s and c4s to share government messages 
• Nonprofits can volunteer their space for voting/polling centers 

• Best practices for 501(c)(3)s 

• Nothing can support or oppose candidates 
• Avoid mixing issue advocacy with voter registration/GOTV/voter education 
• No candidate pledges 
• Any interaction with candidates? Offer the same info to others running 

• Best practices for 501(c)(4)s 

• Can support or oppose candidates – track efforts – secondary activity 
• Be aware of state laws 
• Don’t coordinate efforts with federal (and usually) state candidates 
• Report independent efforts under campaign finance laws 

Resources 

Bolder Advocacy Election Activities Page 

Want to Conduct or Fund a Voter Registration Drive 

Election Protection Efforts Factsheet  

Election Year Activities for 501(c)(4)s 

How 501(c)(4)s Can Hold Elected Officials Accountable  

Partisan Electoral Activity: What is it and What Can You Do? 

Non Bolder Advocacy resources 

Guide on how to do a school or community voter registration drive: https://www.headcount.org/wp-content/uploads/2018/03/Booklet_Final-1.pdf 

For college student looking for information on voting? Check: https://andrewgoodman.org/myvoteeverywhere/ 

With national attention on the Presidential and Vice-Presidential debates, it’s a good time to cover the rules for how nonprofits can convene and comment on debates. 

 Our attorneys for this episode 

Tim Mooney 

Jen Powis 

Quyen Tu 

Shownotes 

 Public charity 501(c)(3)s can educate candidates and voters. 

• Many debates are run by 501(c)(3)s. 
• Example: Commission on Presidential Debates is a 501(c)(3) public charity 
• Remember 501(c)(3)s cannot support or oppose candidates. 

• See the Facts and Circumstances analysis from our first episode. 

• Nonprofits can host debates as an opportunity to educate voters 
• Candidate education 
• Host a debate with a coalition 

• Example from The Coalition for Environment, Equity & Resilience (CEER), a program of Healthy Gulf (c3) & BakerRipley (c3) in Houston 

• Invite all viable candidates (what is viable) 
• Prepare questions prior, and ensure an adequate moderator 
• No candidate pledges 

• Nonprofits can respond to things said in debates 
• Fact checking is ok, but not support/opposition to candidates 
• Be consistent in your language. 
• Example: Sierra Club, c4? 

• Consistency and a track record are key. 
• Best practices: 
• Think through why responding now helps its advocacy program, 
• Determine who is permitted to “speak on behalf of the organization,” 
• Focus on what is said (the issue) and not the candidates themselves, and 

• Ensure that the facts provided meet the above objectives. 
• Example: Southern Poverty Law Center (c3) responding to President Trump’s comment about the “Proud Boys” 

Resources 

Hosting Candidate Debates: Public Charities Can Educate the Community Through Candidate Debates 

Commenting on Candidates and Campaigns: How 501(c)(3)s Can Respond During an Election Year 

Responding During Election Season and Debates 

Sample 501(c)(3) Organizational Policy for Election Season 

Can 501(c)(3)s use social media to praise or criticize the policy actions of elected officials during an election year? It depends! Tim, Leslie and Quyen break down two examples of nonprofits that show you can safely and legally criticize elected officials even if they are up for re-election.

Our attorneys for this episode

Tim Mooney

Leslie Barnes

Quyen Tu

Shownotes

• 501(c)(3)s cannot support or oppose candidates for public office – see ROTG episode 1. But they can criticize or support the policy actions of incumbents, so long as it doesn’t appear as a proxy for a stance on the re-election of that official.
• Example 1 – Ali Noorani is President & Chief Executive Officer of the National Immigration Forum, a 501(c)(3) advocacy organization to promote the value of immigrants and immigration. Ali is responding to President Trump’s Executive Order banning certain types of visas. 
  • Green light – this does not pose a risk
  • Criticism is focused on the actions, not theindividual 
  • Track record of criticism prior to the lections
  • Timing is well before the election
  • Trigger is a non-election event (the EO)
• Example 2 – Marisa Ordoniais a Senior Associate Attorney at Earthjustice’s regional office in Seattle. In this clip, Marissa speaks about a case against the Trump administration. 
  • Green light – this does not pose a risk
  • Track record: 115 cases against the administration
  • No references to voters or election
  • Timing is well before the election
  • Non-electoral trigger

Resources

• Praising and Criticizing Incumbents
• Rules of the Game
• Bolder Advocacy’s TA hotline: 866-NP-LOBBY
• Email us at Advocacy@afj.org
• Our website is bolderadvocacy.org  

We are deeply saddened by the loss of one of the greatest jurists of our lifetime. Ruth Bader Ginsburg was a champion for a just and free society, as an advocate, an attorney and a Supreme Court Justice. She is irreplaceable, but someone will be nominated to take her seat on the Court.

For over 4 decades, Alliance for Justice has been a leader on Supreme Court nominations, galvanizing a large and diverse coalition of progressive advocates. Now we are faced with the biggest fight yet. If you and your nonprofit care about the cause of equal justice, and the future of our country—now is the time. Not only can your nonprofit take a stand. It must.

Read Alliance for Justice’s full statement on the passing of Justice Ginsburg.

On this episode we’re covering what your nonprofit can do to advocate on Supreme Court or other judicial nominations. 

Our attorneys for this episode

Tim Mooney

Leslie Barnes

Quyen Tu

Shownotes

Work supporting or opposing a judicial nomination like the Supreme Court counts as lobbying.

For 501(c)(3) public charities, it’s legal to lobby but tax law limits how much you can do.

There are two ways for (c)(3)s to measure their lobbying limits. If you’re going to be active in this area of judicial nominations, you should make the 501(h) election, which we’ll cover in more detail in a future episode.

The benefits of making the 501(h) election:

• Clear dollar based lobbying limits
• Clear definitions of lobbying.
• It’s retroactive to the beginning of your tax year
• Although there is a limit, the consequence of going over the limit is an excise tax and going over in one year doesn’t jeopardize your exempt tax status.

Other 501(c)s can lobby an unlimited amount, but they can also tie their issue advocacy to electoral outcomes. For example, they can tie judicial nomination advocacy to their candidate endorsements.

Pre-nomination advocacy

Trying to influence the President on specific nominees is lobbying

Speaking to Senators before the nomination – unlikely to be lobbying.

Talking about the process — for instance waiting until after the election to proceed with filling the vacancy — probably not lobbying activity before or after a nomination.

Post-nomination advocacy

Direct lobbying – Senators and sometimes the President

Grassroots lobbying – the general public, when there’s a call to action

How does the election factor in?

For 501(c)(3)s that focus on the nomination itself, it is safe lobbying territory.

501(c)(3)s should not stray from the nomination process and tie their advocacy into whether the President or Senators should be reelected. That gets into partisan territory.

Listen to the first episode of Rules of the Game more on advocating in an election season.

Best Practices

Do’s

• Talk about the importance of the Supreme Court and the lower courts in protecting people’s rights. Do talk about RBG’s legacy and her decisions. Do talk about the 5-4 votes and how the balance could be tipped.
• Talk about any nominee’s record on the issues, with a particular focus on the potential impact on issues on which the organization has a record of working and speaking
• Talk about the nominee’s experience (or lack thereof).
• Tie a Senator’s public position on the issues to the nominee’s known record, or President’s statement on qualities he wants in nominees.
• Engage in grassroots mobilization. If your efforts include a call to action, for example, “Tell your Senator to Vote No,” track activities as grassroots lobbying. If advocacy concerns the process, that will generally not be counted as lobbying. For example, “No vote until after inauguration day,” or “A lame duck Senate should not be voting on a lifetime Supreme Court seat,” will likely not count as lobbying.
• Fund this work if you are a private foundation

Activities for 501(c)(3)s to avoid

• Don’t say a Senator should be defeated or re-elected because of their actions on this vacancy.
• Don’t praise or criticize statements of the people who are running against sitting Senators or the President on the nomination.
• Don’t share social media posts from candidate accounts—check before you tweet. Sitting Senators will have a campaign account and an account for their Senate role—check to ensure you are sharing from a non-campaign account. Be careful with c4 and PAC accounts—many will be posting content a c3 should not share.

Resources

Bolder Advocacy’s TA hotline: 866-NP-LOBBY

Email us at Advocacy@afj.org 

Our website is bolderadvocacy.org  

Resources on judicial nominations, including the process and the potential Supreme Court nominees

501(h) Factsheet

Foundation Support for Public Charities that Influence Judicial and Executive Branch Confirmation Votes

Staff, volunteers and board members of 501(c)(3)s have to make sure they avoid supporting or opposing candidates on behalf of their organization when they’re on the clock. But, those rules only apply to the organization. People that work or volunteer for a 501(c)(3) can – on their own time, and in their  individual  capacity - support or oppose candidates of their choice. But, as always, the devil’s in the details.  On this episode, Tim, Leslie and Quyen cover best practices to keep your personal partisan support separate from your 501(c)(3) work. 

Our attorneys for this episode 

Tim Mooney 

Leslie Barnes 

Quyen Tu 

Shownotes 

• 501(c)(3)s cannot support or oppose candidates for public office – see ROTG episode 01.  But those rules do not apply to individuals on their own time in their own capacity. 
• Important to show separation  
•  IRS Guidance is old 

• Key is to ensure (c)(3) funds are not subsidizing personal partisan work  
• Tips for showing separation on social media  

• Multiple accounts I 
• Disclaimers   

• Can a (c)(3) employee go to the DNC? 

• Yes, in personal capacity 
• Employer may have policies that have added restrictions 

• Best practices 

• Acting in good faith  
• Don’t be cute  

• Do any partisan things on your own time  
• Be clear that it’s you and not the organization – know what hat you’re wearing 

 Resources 

• Board Members and Election Year Activities  
• Election Activities for Individuals Associated with 501(c)(3)s  

• Sample 501(c)(3) Organizational Policy for Election Season  
• Bolder Advocacy’s TA hotline: 866-NP-LOBBY 
• Email us at Advocacy@afj.org  
• Our website is bolderadvocacy.org