Category: Uncategorized

State Registration Rules

On this episode, we’ll discuss how state law may impact your nonprofit’s efforts to impact public policy and lobby for legislation. In past episodes, we’ve focused largely on the tax code: how it permits lobbying for nonprofits and how nonprofits can measure their lobbying limits. But today, we will examine how state-level sunshine laws may require you (or your nonprofit) to register and report as a lobbyist or to report your ballot measure advocacy activities.  

Our Attorneys:

Natalie 

Quyen 

Leslie 

Registering as a lobbyist

How these laws work in practice

  • TX
  • CA
  • Other states

Ballot Initiatives Sometimes Have to Register Like PACs 

Resources 

 All our state law resources are found here on this page:  https://bolderadvocacy.org/subject/state-law-resources/ 

 CA Ballot Measures 

California Campaign Finance and Ballot Measure Guide  

Ballot Measure Activities Exempt from California Disclosure Laws 

Supporting or Opposing Ballot Measures in California: What Do You Need to Disclose? 

 From the Fair Political Practices Commission: 

Campaign Disclosure Manual 3: Information for Ballot Measure Committees 

 CA Lobbying Disclosures 

Shaping the Future: A Compliance Guide for Nonprofits Influencing Public Policy in California 

California Lobbying Disclosure Thresholds When an Organization Needs to File 

California City, County, School and Special District Local Lobbying Ordinances 

 From the Fair Political Practices Commission: 

Lobbying Disclosure Manual: Information for Lobbyists, Lobbyist Employers, & Lobbying Firms 

 TX 

Texas Advocacy Toolkit  

Texas Campaign Finance and Ballot Measure Guide 

Voting Rights

 

On this episode, we’ll be talking about nonprofit advocacy to ensure all eligible people can exercise their right to vote and the fight against new legislation—with a decidedly partisan aroma—that aims to restrict those rights.  

 

Attorney Co-hosts   

Tim 

Quyen  

Ronnie 

 

Record turnout in November 

Americans voted in record numbers in last year’s presidential election, casting over 158 million ballots.  

More than six-in-ten people of voting age and nearly two-thirds of estimated eligible voters,  

Source: Pew Research Center  

 

False claims of voter fraud 

Brennan Center: “Politicians at all levels of government have repeatedly, and falsely, claimed the 2016, 2018, and 2020 elections were marred by large numbers of people voting illegally. However, extensive research reveals that fraud is very rare, voter impersonation is virtually nonexistent, and many instances of alleged fraud are, in fact, mistakes by voters or administrators. The same is true for mail ballots, which are secure and essential to holding a safe election amid the coronavirus pandemic.” 

 

The fallacy of the “election integrity” movement 

False claims of election problems in 2020 

Led directly to the Capitol Insurrection in 2021 

No proof to any of the claims (over 50 lawsuits, all dismissed on the substance) 

New arguments: people think the election was fraudulent, so laws need to change to reflect that 

 

Efforts to oppose the bills across the country  

Georgia 

On March 25, Georgia Governor Brian Kemp signed in to law a bill that will make it more difficult for voters to make their voices heard at the polls.  The  legislation contains several troubling provisions, including those that limit the amount of time available to voters to request absentee ballots, impose strict new ID requirements for some voters, and effectively ban the use of mobile voting centers. The signing of the law prompted swift legal challenges and opposition from corporate interests. (Source: Bolder Advocacy

 

Texas 

Senate Bill 7, which would limit extended early voting hours, prohibit drive-thru voting and make it illegal for local election officials to proactively send applications to vote by mail to voters, even if they qualify. (Source: Texas Tribune

 

Federal legislation being considered to combat this?  

 

Litigation challenging the laws. 

 

What we can do 

  • Offer Public Testimony (rules: may be lobbying) 
  • Write an Op-Ed: (rules: unlikely to be lobbying unless it has call to action) 
  • Engage in Corporate Advocacy (rules: may be lobbying – it depends) 
  • Team Up (rules: coalitions, may be lobbying)  
  • None of this is prohibited election intervention (all (c)(3)-friendly but take care with how your efforts are characterized) 

 

Resources 

When voting rights are under attack, what should nonprofits do? by Natalie Ossenfort 

The States Where Efforts To Restrict Voting Are Escalating, fivethirtyeight 

How GOP-backed voting measures could create hurdles for tens of millions of voters, Washington Post 

Voting Laws Roundup, Brennan Center 

State Voting Bills Tracker 2021, Brennan Center 

Being a Player – lobbying rules 

The Connection – coalition rules 

Coalition Checklist – coalition rules 

Advocacy Against Hate

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.   
  • 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 Stateshttps://www.law.cornell.edu/supremecourt/text/461/574 

Lobbying Series Part 6 – Redistricting

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  

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

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 

 

Lobbying Series Part 4 – Lobbying Exceptions

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) 

 

Lobbying Series Part 3 – Grassroots Lobbying

On this episode, our third in our ongoing lobbying series, we’ll focus on grassroots lobbying for public charities that have made the 501(h) election. 

Attorney Co-hosts 

Natalie Ossenfort  Jen Powis  Quyen Tu 

 

Recap of the 501(h) election 

Recap of the 501(c)(3) lobbying limits 

501(h) election allows you to calculate your lobbying limits 

Grassroots limit is 25% of overall lobbying limits 

 

Defining Grassroots Lobbying 

 

1. Communication 

2. with the General Public (not a legislator or member of the organization) 

3. that Expresses a View about Specific Legislation  

4. and contains a Call to Action 

 

There are 4 specific types of calls to action.  A call to action must comprise one of the following actions:  

  1. tell the recipient to contact a legislator; 
  2. provide information on how the recipient can contact her legislator, such as providing the phone number or address; 
  3. provide a mechanism for enabling the recipient to contact her legislator, such as a postcard, petition, or email form; or 
  4. identify a legislator who will vote on the legislation as being opposed to or undecided about the organization’s view on the legislation, a member of a legislative committee who will vote on the legislation, or the recipient’s legislator. 

     

 

Examples of Grassroots Lobbying: 

  

Examples of Non-Grassroots Lobbying: 

 

  

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) 

Communicating With Your Members (Factsheet) 

501(h) Lobbying Limit Calculator 

Lobbying Series Part 2 – Direct Lobbying

On this episode, our second in our ongoing lobbying series, we’ll focus on direct lobbying for public charities that have taken the 501(h) election.   

For an introduction to lobbying and more on the 501(h) election for public charities, see part 1 of the series

 

Attorney Co-hosts  

  • Jen 
  • Shyaam 
  • Leslie 

  

Not all advocacy counts as lobbying 

  • Communications aimed at executive orders or special purpose bodies like school boards (even though they are elected, those school boards don’t make new laws!). 
  • Example: asking the incoming Biden Administration to rejoin the Paris climate agreement or ban fossil fuel production on federal lands through Executive Order. 
  • Example: The incoming Biden Administration might be able to take executive action to dramatically expand the number of gun sellers required to do background checks.  

 

What counts as direct lobbying under 501(h) 

  • Remember that 501(h) is an expenditure test so it only counts what the organization spends on the communication that is lobbying (including staff time and overhead).  
  • If you are an all volunteer organization, you should keep track of your time for your own purpose but unpaid volunteer time wouldn’t be counted on the 990 at the end of the year. However, any expenses to facilitate volunteer lobbying (e.g., reimbursements for meals or travel associated with lobbying) would need to be tracked and reported.  
  • Typically, the types of expenses you need to track are direct costs (e.g., travel costs), staff time, and overhead expenses.  

  

The three-prong defintion of direct lobbying 

  • A communication 
  • To someone who formulates legislation (like a legislator, or city council member) or their staff or committee staff 
  • Expresses a view about a specific piece of legislation 

  

Communication 

  • Tweets, emails, letters.  Preparation for those communications too.  
  • One on One meetings (when we can do those!) 
  • Or good old fashioned phone calls? 
  • What does the communication say? 

 

  Legislators (and their staff) 

  • The legislator that can make the decision needs to be the target of the communication. And it’s at any level of government – city, county, tribal govt., state, federal, even international.  
  • It can be broader though to include his or her staff because those staff (like the policy director, or the chief of staff) are normally authorized to represent the views of their boss (the elected official).   
  • What about staff of the Committee on Appropriations when the nonprofit public charity seeks to ensure a line item in the budget to buy new land for a new state park? 
  • What about public testimony at the committee hearing when a bill is being considered and the nonprofit says “we support this bill in its entirety?” In a later episode we will talk about some exceptions, including being invited to give testimony.  
  • Executive officials in certain situations, too.  
  • Are members of the public ever considered “legislators”? Yes when voting on public questions, referenda, constitutional amendments, bond measures. Anytime voters are asked to vote “yes” or “no” in an election, may constitute “legislators” for the IRS for your organization’s advocacy work. 

  

Specific legislation 

  • The easy case is when the bill has a number, like HB 270.   
  • How about a piece of model legislation that your nonprofit public charity is trying to get adopted in your state? Or asking for a law to be enacted that was recently enacted in a neighboring state? 
  • Harder is when you’re working with a champion, an elected official that supports your mission, for example, to end homelessness.  Is working with that officials’ office to highlight policy changes, perhaps discussing opportunities to revise statutes, or look for additional funding, is that lobbying? In some cases, you might just be educating legislators and not expressing a view on any specific legislation.  
  • What about just an idea?  The We Want World Peace bill where we’ll teach about peace instead of war? We want you to address climate change. We want you to prioritize arts in the budget. The context is important.  

    Examples    Southerners on New Ground (SONG) a 501(c)(3) . 

The Montgomery County Public School Board is holding a public hearing to discuss renaming Lee High School and the issue of Confederate statues. SONG shared this Instagram post.  Does the post constitute Lobbying, what if SONG’s followers took these signs to the school board meeting? 

  An example from the state of Texas.  In Texas, the legislature meets every odd numbered year. This year, there’s a bill by Representative Johnson that removes the Confederate Hero’s Texas State Holiday from the code.  

Generally, if an Executive Director met with their local state representative to tell them to vote for removing this day, then that would be direct lobbying.  Because , you have a (1) communication, (2) to the legislator, (3) on a specific bill.     

 

When to start tracking expenses 

  • Almost always has to be you or your organization specifically sending something to a sitting official asking them to support a bill or ordinance.   
  • Examples?  Let’s say your E.D. has an appointment with a city council member who historically has not supported funding for LGBTQ homeless shelters.  The staff prepare a report that the ED will use with the opposing city council member and the ED intends to specifically ask for the city councilmembers support for a new ordinance creating a shelter for LGBTQ kids.  What is the cost of the expenditures? 
  • Staff time on report? Travel and lunch of ED?  Printing?  ED time?  Overhead?   

 

 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)  

501(h) Lobbying Limit Calculator  

 

Lobbying Series Part 1 – Introduction to Lobbying

On this episode, we begin a multi-part series on lobbying for 501(c)(3) public charities — the limits, the definitions, the exceptions and much more. If you’re advocating on federal, state or local public policy in 2021, this is the podcast you’ve been looking for. 

Our Attorneys

Tim MooneyNatalie OssenfortQuyen Tu

Intro – Why are we talking about public charities and lobbying? 

  • It’s still worth a listen for 501(c)(4)s, private foundations, and others. 
  • Underscore that not all advocacy is lobbying (which is why we’ll spend several episodes on defining lobbying) 
  • Lobbying limits as a function of tax treatment and deductibility of contributions to 501(c)(3) 
  • Is this a 1st Amendment issue of speech being curtailed? Not according to the Supreme Court of the United States 

 

The Insubstantial Part Test 

  • This is the default measurement system for 501(c)(3)s 
  • Very little IRS or legal guidance on this 
  • No “substantial” part of a public charity’s activities can be lobbying 
  • No definition of lobbying 
  • No definition of substantial 
  • All activity is counted, whether it costs money or is done by volunteers 
  • Most practitioners go with 5% but that is not an IRS rule! 
  • Report lobbying on Schedule C of Form 990 

 

501(h) Election 

  • In the 1970s Congress passed reform legislation that included another choice for most charities 
  • 501(c)(3)s must “elect” this option 
  • Available to most charities, but not churches or auxiliaries (controlled by) of churches also referred to as houses of worship 
  • This is an expenditure-based test 
  • Clear limits based on organizations exempt expenditure 
  • For most 501(c)(3)s that’s 20% of their annual exempt expenditures but this limit does go down as the organization’s exempt expenditures go up 
  • Max cap is $1 million for organizations with exempt expenditures $17 million or more 
  • Clear, bright-line definitions of lobbying 

 

What Are the Advantages 501(h)? 

  • Clarity of what is lobbying 
  • Organizations ca pay excise taxes for going over limits rather than risk losing their tax status 
  • Easier to plan for lobbying activities 
  • Easier to report 
  • No additional risk of audit (perhaps less?) 
  • Example: AFJ and many other 501(c)(3) public charities 

 

What Are the Advantage of the Insubstantial Part Test (IPT)? 

  • Vanishingly small 
  • Very large organizations with budgets $100 million or more maybe able to lobby more with IPT than under the 501(h) election despite the IPT’s lack of clarity 
  • These organizations can afford to hire lawyers! 
  • Example: The Nature Conservancy 

 

Bolder Advocacy strongly recommends that public charities make the 501(h) election 

How do you know if your organization has made 501h? Look at your Form 990 Schedule C. 

How do you make the 501(h) election? File IRS Form 5768

  • Backdates to the beginning of the organization’s tax year 
  • You only have to make this election once 

 

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) 

Lobbying Rules For Houses of Worship 

501(h) Lobbying Limit Calculator 

Taking a stance on impeachment and expulsion

On this episode, we chat about impeachment and detail how nonprofits, including 501(c)(3)s, can take a stance on the renewed calls for impeachment and removal of the President plus calls for expulsion of some members of the Senate and House following the failed attempt to baselessly challenge the November election and the insurrection of January 6th.

Resources

Reminder: Nonprofits Can Advocate for Impeachment

Can a 501(c)(3) Advocate for Impeachment of a Federal Office Holder?

Taking a Stance on Articles of Impeachment and the Senate Trial