On this episode, we once again turn to your questions on nonprofit advocacy with another edition of Ask Us Anything. We’ll cover topics like litigation, lobbying grants, state PACs connected to (c)(3)s and more! 

Attorneys for this Podcast 

Natalie Ossenfort 

Leslie Barnes 

Tim Mooney 

 

Questions 

You often mention litigation as something nonprofits can do. What are some examples? 

Someone sent us an email asking us for our last two 990s. Can we just direct them to the IRS site? The one we just filed isn’t up there yet – is it ok for us to tell the person they’ll have to wait til it processes? 

Can we make a lobbying grant from a c3 to a c4 before we file before we file our 2021 Form 990 this May and have it count as a 2021 expenditure? 

We spoke with lawyers who were concerned about us forming a state PAC connected to our c3. The PAC will exclusively work on an upcoming statewide ballot question. They think we need to form a c4 or the c3 could risk its tax status. Is that right? 

We want to purchase cable tv ads telling people to contact both our Senators to support President Biden’s nominee for the Supreme Court. The thing is, our primaries are really early, and one Senator has a challenger. We’d like to do this out of our c3 but aren’t sure if that’s ok… 

Our executive director is running for school board. Can our c3 staff volunteer for the campaign? What are best practices for staff running for office? 

Resources 

Maximize Your Advocacy 

Give Me Your 990! 

8 Tips for Nonprofits with Employees Running for Public Office 

On this episode, we’re taking a deep dive into election season advocacy rules. While you already know from previous episodes that 501(c)(3) public charities are not allowed to support or oppose candidates for public office, you may not know how the tax code defines a “candidate” and which public offices could trigger tax code electioneering rules.  

  

Our Attorneys for this Episode   

Leslie Barnes   Jen Powis  Quyen Tu 

 

Show Notes 

• Who is a candidate? 

• What is a public office? 

• Holding elected officials accountable doesn’t always have to end when they “declare candidacy” 
• Who is NOT a candidate? 

 

Resources 

• Rules of the Game: A Guide to Election Related Activities for 501(c)(3) Organizations 
• Who is a Candidate (BA Blog Post)  
• IRS’s EO CPE Text, 2002 Election Year Issues, Judith E. Kindell and John Francis Reilly 

 

On this special episode… we revisit how nonprofits can make their voice heard when there is a vacancy on the Supreme Court or any appointed judicial seat.  

 

Our attorneys for this episode 

 

Tim Mooney 

Natalie Ossenfort 

Quyen Tu 

 

Opening Thoughts 

 

After the announcement that U.S. Supreme Court Justice Stephen Breyer will retire pending confirmation of his successor, groups are gearing up to influence President Biden’s nomination and the Senate confirmation vote. But before we talk about our advocacy and the rules of the game for advocacy in this area, we wanted to share the statement of AFJ President Rakim Brooks on Justice Breyer: 

 

Justice Breyer has always been one of the most active members of the bench — drawing as many laughs as any justice in recent history. His jurisprudence, however, has had the quiet dignity of a justice who understood that the proper role of the Court is to defer to the people and their elected representatives to decide our democracy’s most important questions. Time and time again, he has stood up against the wealthy and powerful to protect the fundamental rights and legal protections of millions of Americans.   

 

Read more from the AFJ statement 

 

Shownotes  

• Work supporting or opposing a judicial nomination like SCOTUS counts as lobbying.  
• When does the meter start running for 501(c)(3) public charities?  
• Types of lobbying 
• Do nonprofits have to worry about the rules around elections? 
• AFJ and AFJ Action’s advocacy 

 

Resources 

• Our new home for all of our resources on advocacy for judicial nominations  
• President Biden’s Potential Supreme Court Shortlist (AFJ) 
• Election Checklist for 501(c)(3) Public Charities: Ensuring Election Year Advocacy Efforts Remain Nonpartisan  
• Accountability Advocacy for 501(c)(3)s  

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

Email us at advocacy@afj.org  

Our website is bolderadvocacy.org   

 

On this episode we’ll share some tips for 501(c)(4) organizations, those nonprofits the IRS calls Advocacy or Social Welfare Organizations. Whether your public charity has an affiliated 501(c)(4) or you work for a stand-alone 501(c)(4), these nonprofits must provide the IRS and the public with their financial and programmatic information annually. And we’re going to talk about how c4s can comply with the IRS requirements, some of the new developments that allow for protection of donor disclosure, and some of the information we, the public, can glean from these reports. 

 

Attorneys for this episode:  Quyen Tu, Tim Mooney, and Leslie Barnes 

Key Takeaways: 

• 501(c)(4) with annual gross revenue over $50,000 must file an information return with the IRS – either a Form 990 or Form 990 EZ. 
• Starting with FY 2020 annual returns, 501(c)(4) organizations are no longer required to disclose their donors to the IRS or public. 

• 501(c)(4) organizations must still provide copies of certain financial documents to the public upon request.  
•  Don’t forget other reporting requirements-state and federal lobbying and campaign finance requirements  
• These rules apply to 501(c)(5) and 501(c)(6)s as well 

Resources:   

• Give Me Your 990 
• 501(c)(4) Reporting: Where Are Donors Disclosed 
• IRS website: Public Disclosure and Availability FAQs  
• IRS Instructions for Schedule C, Form 990 
• Technical Assistance Hotline number 1-866-675-6229 (866-NP-LOBBY) or email us advocacy@afj.org or fill out our request form here. 

On this episode of the pod, we’re going to walk you through the types of information you can get from a 990. You’ll hear how that information is helpful to a variety of individuals including: a new Executive Director, board members, the press, staff, job applicants, donors, and more. 

Our Attorneys for this Episode 

• Jen Powis
• Leslie Barnes
• Quyen Tu 

Shownotes 

• Why nonprofits are required to publicly disclose certain legal and financial information. 
• The different kinds of Form 990s including: 
  • Form 990 
  • Form 990 EZ 
  • Form 990-N 
  • Form 990-PF 

   

• When are Form 990s due? 
• What are the penalties and fines for not filing?   

• What can you find in a 990? 
  • Identity, Tax Status, and Tax Year 
  • How Much Income Did the Filer Receive and From What Sources? 
  • How Did the Filer’s Total Expenses Break Down?  
  • What Can You Tell from Net Assets? 

 

• Number of employees and board members, organization’s website, and EIN  
• What Kinds of Programs Does the Filer Run and How Much Does It Spend on Them? 
• Good Governance – Conflict of Interest, Whistleblower, Record Retention and Compensation Policies 
• Who Are the Filer’s Board Members, Officers, Key Employees, and How Much Does Its Top Staff Get Paid?   
• Did the Filer Initiate Some New Activity, Change Its Processes for Governing or Engage in Any Excess Benefit Transactions? 
• Did the Filer Engage in Any Self-Dealing Transactions During the Year?  
• Does the Filer Lobby? 

• When nonprofits must provide copies of financial documents to the public 
  • In-person requests 
  • Requests in writing 

• Charges for copying and mail must be arranged in advance
• Fines for noncompliance 
• Filers who share their 990s on their website are not obligated to produce copies upon request 

   

 As a reminder, this episode is just about the tax filing to the federal government (the 990) at the end of your fiscal year. Each state may also require a nonprofit public charity to file other types of forms, perhaps a copy of the 990, or some other tax filing. So make sure if you’re a staff person that you work with your bookkeeper to understand all the end of the year filings you need to provide.  

Resources  

• Guidance on how to complete a Form 990 from the IRS 
• Give Me Your 990  
• Keeping Track: A Guide to Recordkeeping for Advocacy Charities 
• Where to look for Form 990s:  
  • Nonprofit Explorer by ProPublica 
  • GuideStar  
  • IRS 
• Apply for an Employer Identification Number (EIN) Online 

     

On this episode, we begin looking forward to 2022 and what is sure to be an exciting year to come. Whether your nonprofit is gearing up for midterm elections, legislative advocacy, or administrative activism, there are several steps you can take to prepare your team NOW. That is why we present you with our TOP 10 nonprofit New Year’s Resolutions. 

 

Our Attorneys for This Episode: 

Natalie Ossenfort  Tim Mooney  Leslie Barnes 

 

Show Notes: 

1. Schedule your election season advocacy training now. While midterm elections happen later in the year, candidates are launching their campaigns, and primary election season is gearing up. Make sure your staff is ready by training them on how your nonprofit can engage with candidates and voters while remaining in compliance with state and federal law. 
2. Make sure you have an election season policy, and have your staff and Board members review and sign it. Many nonprofits are perfectly situated to get out the vote and pursue important policy agendas, but these activities can trigger conversations that implicate nonprofit election season advocacy rules. By having a policy (and sticking to it), you create a layer of protection for your organization as it confidently moves into 2022. 
3. Build in accountability advocacy for your (c)(3) or (c)(4) for year-round effectiveness. Nonprofits can hold their elected officials accountable for how they serve their constituents. There are a variety of activities in which nonprofits may engage to remind legislators and elected officials that their issues matter, educate constituents about officials’ positions and actions, and demonstrate to officials that their votes will not go unnoticed. 
4. Have a 501(c)(3) and a 501(c)(4)? Get set up to grant unused lobbying capacity from the (c)(3) to the (c)(4) at the end of the year with our brand-new guide – Maximizing Your Advocacy! Why? Lobbying can count as one of a (c)(4)’s primary purpose activities, helping it to maintain the required balance between nonpartisan and partisan (secondary activity) work. 
5. Prepare to educate candidates and political parties on your issues. An election year is a perfect time to capitalize on any heightened interest people have in the issues important to your communities. While 501(c)(3)s cannot provide singular research, strategy, or support to one candidate or political party, they can use this opportunity to educate candidates in a nonpartisan manner and even influence candidate and political party platforms.  
6. Resolve to support democracy in 2022. The IRS permits 501(c)(3) nonprofits to engage in charitable activities, including nonpartisan activities that support democracy, expand the electorate, & encourage civic engagement provided the activities further the organization’s mission. Determine if your state’s election laws have changed for registering or voting, and build voter education and outreach into your advocacy work. 
7. Make plans to brush up on your knowledge of state lobbyist registration and campaign finance reporting requirements. Depending on what level of government you are working to impact, you may trigger reporting requirements at the local, state or federal levels. These laws could require you to track both your administrative and legislative activities and any expenditures you make on ballot measure campaigns (in addition to independent expenditures if you happen to be a (c)(4) working to influence candidate elections). Luckily, we have a wealth of state law resources on our website including a NEW practical guidance lobbying series. 
8. Take stock of your capacity to engage in advocacy, and embrace your strengths (and weaknesses) as an organization to maximize your impact at the legislature and beyond. Where should you start? Our Advocacy Capacity Tool is a good place to begin. By evaluating your goals, plans, strategies, partnerships/networks, operations, and more, your nonprofit can put itself in the best position for advocacy success. 
9. Get social! (on social media that is). Social media offers nonprofits an opportunity to amplify their advocacy to reach communities far and wide. Whether your organization is building its presence on IG, TikTok, Twitter, Facebook, or elsewhere, make use of online advocacy as a tool to expand your supporter base and activate public policy campaigns. Just remember that tax code nonprofit advocacy rules will still apply, and check out our guide to Public Policy in the Digital Age to remain in compliance. 
10. Take time for yourself. Just because you work for a nonprofit or serve on a nonprofit Board, that doesn’t mean that you can’t step away from time to time to re-center and engage in the activities that bring you happiness and joy. Just like the last couple of years, 2022 is almost certain to bring with it its own unique set of challenges. Stay focused, stay diligent, but also keep motivated by taking time for YOU. 

                 

 

Resources: 

Accountability Advocacy for 501(c)(3)s 

Accountability Advocacy for 501(c)(4)s 

Is It (c)(3) Compliant? – Decision tree for election-year activity 

Advocacy Capacity Tool 

Maximizing Your Advocacy: 8 Steps for Granting Unused Lobbying Capacity from a 501(c)(3) to an Affiliated 501(c)(4) 

Maximizing Your Advocacy Supporting Documents  

Public Policy in the Digital Age: The Law of Online Lobbying & Election-related Activities 

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

On this episode, we’ll take time to reflect on what was a very exciting year for nonprofit advocates. Across the United States, nonprofits organized, formed coalitions, and mobilized communities to advance the goals of equity, justice, and equal rights for all. This episode will highlight some of their success stories and set a celebratory stage for the new year to come.  

Our Attorneys for this Episode  

Natalie Ossenfort   Quyen Tu   Tim Mooney   

Show Notes 

• CALIFORNIA 

• • In 2021, nonprofit members of California’s Health4All Coalition successfully shepherded in the passage of “Health for All Seniors.”   
  • In September, a nonprofit coalition and several community activists convinced the Los Angeles County Board of Supervisors to begin the process of phasing out oil drilling in unincorporated L.A. County.  
  • AFJ/BA helped NPs pass a bill to prevent police from blocking journalists covering protests and demonstrations. 

• TEXAS 

• • Nonprofits across the state joined forces to successfully advocate for legislation that expands postpartum Medicaid coverage to six months (instead of two). The organizations plan to continue the fight in 2022 expand the law even further. 

• NEW YORK 

• • Advocates at the New York Transgender Advocacy Group and their coalition partners scored a big win by convincing lawmakers to repeal a law that prohibited loitering for the purpose of engaging in prostitution. 
  • Just a few days ago, the New York City Council approved a massive expansion of voting rights, which will allow non-citizen residents to vote in municipal elections.  

• OTHER ADVOCACY SUCCESSES 

• • In June, nonprofit advocates in Vermont celebrated when the Governor signed into law a bill that expands voting rights by requiring that all registered voters in the state receive mail-in ballots. That same month saw a similar win in Nevada.  
  • The Women’s Foundation of Colorado threw its support behind several successful bills.  
  • Record number of federal judges have been confirmed,rebalancing the judiciary to more properly reflect the diversity of our country. 

 Resources

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

In this episode, we turn to your questions. We put out the ask for listeners to send in questions on nonprofit advocacy, and on this episode, we’re going to answer a handful of the questions we’ve received that stood out. We’ll ease you in and ramp up the levels of difficulties. Ever wonder what types of questions we get at Bolder Advocacy? Stick around and find out!

Lawyers for this episode

Tim Mooney Quyen Tu Jen Powis

Show Notes

What is the difference between a nonprofit and a 501(c)(3)?

Where on my 990 do I look to see if I have selected the 501(h) election for measuring my lobbying?  And if I file today, is it effective next year, or this year?

Can a board member of a non-profit sign on to a partisan statement or call to action and list their affiliation with the non-profit if it is noted that affiliations are for “identification purposes only”?

Where on my 990 do I look to see if I have selected the 501(h) election for measuring my lobbying?  And if I file today, is it effective next year, or this year?

We have a 501(c)(3), and our board is considering forming an affiliated 501(c)(4). Can we use c3 dollars to hire initial c4 staff or to pay for start-up overhead?

Are there any issues with establishing a bail fund specifically to bail out protesters? 

Specifically, the IRS states that activities such as strikes, economic boycotts, picketing, and mass demonstrations are permissible methods of furthering the educational and charitable purpose of a 501(c)(3) organization, as long as three conditions are satisfied:

1. the organization’s purpose is charitable;
2. the organization’s activities are neither illegal, contrary to public policy, nor in conflict with express statutory restrictions or limitations; and
3. the activities of the organization are in furtherance of its exempt purpose and reasonably related to the accomplishment of such purpose.

IRS guidance, from 1976

Examples of bail funds that likely qualify

RAICES

Bail Project

 

Resources

Maximize Your Lobbying Limit

501(c)(3) Employees Running for Office

The Practical Implications of Affiliated 501(c)(3)s and 501(c)(4)s

IRS Form 5768 – electing 501(h)

IRS Form 8976 – notice to operate as a (c)(4)

 

On this episode, we turn to nonprofits that are tackling nothing less than an existential crisis—climate change. Learn more about how some organizations are tackling this, and how that fits within the laws governing their work.

Lawyers for this episode

Tim Mooney Quyen Tu Jen Powis

Show Notes

• Non-lobbying advocacy
  • Corporate work – Lawyers for Netzero
  • Education – The Beginning of the End of the Great Pacific Garbage Patch
  • Research – Climate Central, Union of Concerned Scientists, Carbon180
  • Public protest/demonstration

• Administrative advocacy with the EPA or state based DEQs – Bayou City Waterkeeper

• International/Treaties
  • Governments in partnership with numerous private foundations, a $1.6 billion pledge to support indigenous communities at the COP26 climate summit.
  • Coalition for Rainforest Nations

• Electoral
  • Nonpartisan
    • Earthjustice
    • Conservation Lands Foundation
  • Partisan work
    • Sierra Club’s PACs
    • Sunrise PAC
  • Ballot Measures

•  

Resources

• Bayou City Waterkeeper
• Carbon180
• Clean up in of the Great Pacific Garbage Patch
• Climate Central
• Coalition for Rainforest Nations
• Ford Foundation press release
• The Ocean Cleanup
• Union of Concerned Scientists

On this episode, so you have a 501(c)(4) to advocate on your issues. How do you fund it when you can’t offer tax deductibility to your donors? And what’s so great about them around election season? Listen up and we’ll talk fundraising strategies and give an overview on the power of independent expenditures. This is the second of a two-part series. Lawyers for this episode Tim Mooney Quyen Tu Jen Powis Shownotes

• Funding strategies for 501(c)(4)s
  • Non-deductibility disclaimers in solicitations
  • Joint fundraisers
  • Foundation grants
  • Lobbying grants from 501(c)(3)s
• Independent expenditures  

Resources

Why create a 501(c)(4)?

501(c)(4) Strategy and Discussion Guide

Considering Starting a 501(c)4? Case Studies

Primer on Social Welfare Organizations: Using 501(c)(4) Organizations for Good

Power of Collaboration

Starting a 501(c)(4) organization 

How to operate a 501(c)(4)

The Connection

Comparison of 501(c)(3) and 501(c)(4) permissible activities

Accountability Advocacy: How 501(c)(4)s Can Hold Elected Officials Accountable for Their Actions

Why (c)(3)s and (c)(4)s need to work collaboratively

Sample Timesheets

Sample Cost Allocation Agreement

Life Cycle of a Social Welfare Organization | Internal Revenue Service (irs.gov)