On this episode of the Rules of the Game podcast (the third in an eight-part, issue-specific podcast series), we’ll discuss recent headlines impacting criminal legal reform advocates and explain how nonprofits can take action with legislative, executive branch, and judicial branch advocacy. From responding to legislative proposals to initiating litigation, nonprofits nationwide are standing up to fight for our rights and critical reforms to our criminal legal system. This episode will highlight their work and provide information about the rules that apply when nonprofits engage in advocacy to ensure due process, protect the rights of the accused, and improve judicial systems.

Attorneys for this episode

Monika Graham

Melissa Marichal Zayas

Natalie Roetzel Ossenfort

Show notes

·      Recent Headlines: Legislation, Litigation, and More!

o   Legislation:

§  Family Notification of Death, Injury, or Illness in Custody Act: Bipartisan legislation introduced in the U.S. Senate. Would require the DOJ to issue guidance on how federal prisons should promptly notify families of incarcerated individuals who become seriously ill or pass away in prison.

o   Litigation

§  Criminal legal reform advocates scored a win in Michigan recently, when the MI Supreme Court ruled that mandatory / automatic life without parole sentences for 19-20 year olds convicted of murder are unconstitutional.

o   Executive Branch Actions:

§  Earlier this year, the DOJ froze work on police reform and other civil rights cases. Now, (in the absence of DOJ leadership on these issues), the burden has shifted to local governments to take action.

o   Keep on Your Radar: Trump’s “Opening Salvo” in His War Against Criminal Justice Reform Starts With This Nonprofit

§  The Vera Institute of Justice, a major criminal justice reform nonprofit, had all five of its federal grants—worth about $5 million—abruptly terminated by the Department of Justice under Attorney General Pam Bondi, a key Trump ally.

§  Evaluate your funding sources, and make sure you’re not overly dependent on any one source.

·      Non-Lobbying Advocacy

o   Nonpartisan Advocacy 101: 501(c)(3)s cannot support or oppose candidates for public office, but they can…

o   Educate the public about issues of importance to your organization.

§  Equal Justice Initiative recently provided education related to the wrongful incarceration and conviction of black defendants in murder cases. Not only did they report on research from the National Registry of Exonerations that black Americans are nearly 8x more likely to be wrongfully convicted of murder, but they noted that they are also likely to spend more years in prison than wrongfully convicted white people.

o   Hold a rally:

§  Earlier this year, a coalition of criminal justice reform advocates and nonprofits in New Mexico held a rally to call attention to the reality of mass incarceration and to propose common-sense alternatives to harsh prison sentences.

o   Initiate or participate in litigation:

§  The Innocence Project (AFJ Member) and other members of the Innocence Network, engage in litigation on behalf of wrongfully convicted persons who can be proven innocent with DNA and other types of evidence.

o   Fund Advocacy

§  Private and public foundations can support organizations advancing their charitable missions through general operating grants and/or specific project grants, ensuring flexibility and sustainability in pursuit of shared goals.

·      Lobbying

o   501(c)(3) public charities are also allowed to use unrestricted funds to engage in some lobbying activities.

o   Tax Code Lobbying 101: Public charities can lobby, but they are limited in how much lobbying they may engage in.

§  Insubstantial part test vs. 501(h) expenditure test.

§  Under either test, lobbying includes attempts to influence legislation at any level of government.

§  Track your local, state, and federal lobbying, and stay within your lobbying limits.

o   State/local level lobbyist registration and reporting requirements may also apply when engaging in legislative and executive branch advocacy.

o   Ballot measure advocacy (direct lobbying) could also implicate state / local campaign finance and election laws.

o   Lobbying win!

§  In March, DC Justice Lab, an AFJ member, and several other nonprofits lobbied in support of Maryland’s Second Look Act by submitting testimony to the Senate Judicial Proceedings Committee. This legislation would permit individuals convicted of certain crimes between the ages of 18 and 25, and have served over 20 years of their sentence, to petition the court to modify or reduce their sentence based on demonstrated rehabilitation. Since the committee’s hearing, the Maryland General Assembly has passedthe Second Look Act, which now awaits Governor Moore’s signature.

Resources –

·      Justice & Equity: The Advocacy Playbook for Criminal Legal Reform

·      Public Charities Can Lobby (Factsheet)

·      Practical Guidance: what your nonprofit needs to know about lobbying in your state

·      Investing in Change: A Funder’s Guide to Supporting Advocacy

·      What is Advocacy? 2.0

On this episode of the Rules of the Game podcast, the second installment of our eight-part series focusing on critical issues, we dive into the latest headlines shaping racial justice and immigrant rights. We’ll explore how nonprofits can play a pivotal role in advocating for change through legislative, executive, and judicial channels. From raising awareness to securing funding for advocacy efforts, nonprofits across the nation are stepping up in the fight to protect our rights. This episode not only highlights their impactful work but also provides crucial insights into the rules and regulations that govern nonprofit advocacy in the ongoing struggle for racial justice and immigrant rights.

Attorneys for this episode 

Monika Graham

Brittany Hacker

Quyen Tu

Current Events/EOs:  

·      Trump Administration Cuts Funding for Unaccompanied Immigrant Children, essentially terminating the UAC Program

o   UAC Program Responsibilities:

§  Ensuring that the interests of the child are considered in decisions related to care and custody

§  Ensuring, to the greatest extent practicable, that all unaccompanied alien children in custody have access to legal representation or counsel

§  Releasing UAC to qualified sponsors and family members who are determined to be capable of providing for the child’s physical and mental well-being

o   The Fallout:

§  Impacts the work of 100 plus legal service providers

§  RAICES 199+ employees laid off

§  Interfaith Ministries of Greater Houston 101 employee layoffs

§  Catholic Charities Tarrant County 169 employee layoffs

§  Catholic Charities Houston/Dallas 180 employee layoffs

§  Over 26, 000 children left without legal representation

§  Immigration court backlog includes about 3.5 million cases

·      Attacks on Diversity, Equity, and Inclusion

o   Trump’s order to investigate around 350 philanthropic organizations holding combined assets of $900B due to their DEI programs.

o    Funders’ responses: Some have remained steadfast in their commitment, while others have backed down.

o   Context to understand the broader tension:

·       A surge in commitment to racial equity following the murder of George Floyd by police in 2020.

·       SCOTUS ruling in June 2023: The Supreme Court deemed race-conscious admissions policies at Harvard and UNC unconstitutional in the Students for Fair Admissions case, effectively ending affirmative action in college admissions.

·       In response to SFFA, in August 2023, the American Alliance for Equal Rights sued Fearless Fund, alleging its grant program for Black female entrepreneurs was racially discriminatory. The 11th Circuit Court halted the program during litigation, and Fearless Fund settled in September 2024, ending the program. As a result, grants or contracts restricted to a specific race may now violate federal law.

o   Government and private sector DEI offices and programs have shut down.

o   Numerous lawsuits are pending, creating additional legal uncertainty.

o   Chilling effect already unfolding, with widespread chaos and uncertainty.

·      Executive Orders (10 in the first 7 days)

o   Ended humanitarian parole for immigrants from Cuba, Haiti, Venezuela, and Nicaragua, forcing those legally allowed into the U.S. to leave.

o   Attempt to end birthright citizenship.

o    Ramp-up of deportations, expanding the list of individuals prioritized for removal.

o   Paused the refugee resettlement program, capping it at the lowest level in 40 years.

o   Ongoing challenges: Many policies have been paused or are currently being contested in the courts.

o   Impact on individuals: Deportations of student visa holders detained by masked individuals, and the arrest of Legal Permanent Residents (LPRs) based on their involvement in Free Palestine movements.

o    Deportations to El Salvador without due process for immigrants alleged to be gang members—based solely on tattoos.

o   Wrongful deportation: A Maryland man was deported to El Salvador despite a court order prohibiting his deportation. Authorities claim it was an administrative error, with no legitimate reason for his arrest, detention, or removal. Even DOJ lawyers have expressed confusion about why the administration isn’t bringing him back, despite being ordered to return him by midnight tonight.

o   Shocking incompetence: The lack of diligence and understanding of the human impact of these policies is alarming.

Advocacy

·      Executive Order Advocacy:

o   501(c)(3) compliant, safe, nonpartisan, non-lobbying advocacy activity (keeping in mind that other federal, state, and local regulations may apply)

o   Track and communicate EOs, assist immigrant communities in understanding their implications, and help prepare through targeted social media campaigns

o   Develop a preparedness plan for potential ICE actions at your nonprofit, ensuring the safety and rights of those involved

·      Fund Advocacy:

o   General support grants provide funding that is not earmarked for a particular purpose and can be used at the discretion of the recipient organization to advance their mission and cover operating costs. 

o   Specific project grants: Private foundations must review the grantee’s project budget and may award up to the non-lobbying portion. Funds must be used exclusively for the designated project.

o   Note: Public foundations that have made the 501(h) election may follow the same general support and specific project grant rules that apply to private foundations, and these grants should not be considered a lobbying expenditure by the foundation, even if the recipient public charity spends the grant funds on lobbying

·      Public Awareness:

o   Amplify the voices of unaccompanied children through powerful storytelling campaigns that humanize their experiences and bring attention to their plight.

o   Conduct in-depth research on the impact of funding cuts, highlighting how these reductions are affecting the lives of vulnerable children, and share these findings publicly to increase awareness.

o   Actively engage with your community by hosting events, discussions, or social media campaigns that educate the public on current issues surrounding unaccompanied immigrant children and provide actionable ways they can advocate for meaningful change.

Lobbying 

·      Tax Code Lobbying 101: Public charities can engage in lobbying! Ensure you track and report all local, state, and federal lobbying activities while staying within legal limits.

·      Host a Lobbying Day: Organize a dedicated event, like AILA’s National Day of Action, to mobilize supporters and advocate for critical issues.

·      Engage in Ballot Measure Work: Actively participate in ballot measures to influence public policy decisions at the local or state level.

·      Remember:

o   State/local level lobbyist registration and reporting requirements may apply when engaging in legislative and executive branch advocacy.

o   Ballot measure advocacy could implicate state/local campaign finance and election laws.

Resources

·      Race and Equity: The Advocacy Playbook for Racial Justice and Immigrant Rights 

·       The Impact of Government Funding Cuts on Unaccompanied Children and the Role of Nonprofits in Fighting Back

·      Public Charities Can Lobby

·      Practical Guidance: What Your Nonprofit Needs to Know About Lobbying in Your State

·      Investing in Change

On this episode of the Rules of the Game podcast (the first in an eight-part, issue-specific podcast series), we’ll discuss recent headlines impacting the LGBTQ+ community and explain how nonprofits can take action with legislative, executive branch, and judicial branch advocacy. From responding to executive orders to initiating litigation, nonprofits across the country are standing up to fight for our rights. This episode will highlight their work and provide information about the rules that apply when nonprofits engage in advocacy on behalf of the LGBTQ+ community.

Attorneys for this episode

Natalie Roetzel Ossenfort

Sarah Efthymiou

Brittany Hacker

Show notes

·      Current Events/EOs:

o   PFLAG Policy Matters Newsletter-federal and state-by-state legislative and litigation actions

o   One EO creates Narrow definition of sex as binary male or female and has multiple other impacts

§  Directs HHS secretary to end coverage for gender-affirming care through the Affordable Care Act

§  Plans to move trans women in federal custody to men’s prisons

o   Attempting to stop gender affirming care for people under 19

o   Banning transgender people from serving in the military

o   Administration terminated grants funded by the NIH focused on LGBTQ+ health issues. Planning to shut down the HIV prevention division of the CDC.

o   Attacks on DEI initiatives and other generally bad EOs: dismantling department of ed, eliminating funding for nonprofits

·      Advocacy

o   Non-partisan 101: cannot support or oppose candidates for office

o   Educating the public: stay updated on changes to law

§  Lead or attend trainings and conferences

§  March 31 is trans day of visibility

§  Orgs like HRC and PFLAG are doing a great job tracking and reporting on EOs and changes to laws

o   Executive branch advocacy:

§  EO advocacy is not lobbying under tax code definitions

§  Oppose executive cabinet actions: submitting comments to proposed regulation changes like the State Department gender markers. Advocates for Trans Equality and others made easy guides and platforms on how to do this.

o   Hold a rally: SCOTUS rally April 2 for case about access to Planned Parenthood services through Medicaid (Medina v. Planned Parenthood South Atlantic)

o   Litigation:

§  Almost all of Trump’s actions affecting the LGBTQ+ community are already being heard in the courts and are currently on hold

§  PFLAG v. Trump: challenging EO that withholds funds from medical providers that provide gender-affirming care for people under 19 (currently have a preliminary injunction)

§  Federal judge granted preliminary injunction halting the trans military ban: NCLR and GLAD lawsuit

§  Ohio state appellate court ruled the state’s gender-affirming care ban unconstitutional

·      Lobbying

o   Tax Code Lobbying 101: Public charities can lobby! Track and report your local, state, and federal lobbying and stay within your limits.  

o   Federal trans athlete ban: was brought up and failed to advance in the Senate—lobbying win!

o   Emphasize state-level work, local laws, ballot measures

§  Sanctuary cities for trans healthcare

§  Make protections for LGBTQ+ community greater than what the federal law requires

o   Remember:

§  State / local level lobbyist registration and reporting requirements may apply when engaging in legislative and executive branch advocacy.

§  Ballot measure advocacy could implicate state / local campaign finance and election laws.

Resources

·      Pride and Equity: The Advocacy Playbook for LGBTQ+ and HIV Communities

·      Public Charities Can Lobby (Factsheet)

·      Practical Guidance: what your nonprofit needs to know about lobbying in your state

For regular listeners of the pod, you may recall that we’ve discussed fiscal sponsorship in past episodes. Fiscal sponsorship is a great way for a new charitable organization to work with an existing 501(c)(3) to get up and running (including engaging in important advocacy) whether waiting to receive its own IRS tax-exempt status or not. Today, we’re going to look at this topic form a different point of view – that is, from the fiscal sponsor’s perspective. On this episode, we’ll chat about considerations fiscal sponsors should keep in mind when engaging in, and when supporting projects engaging in, advocacy. And we’re very happy to be joined today by Josh Sattely from Social Impact Commons. 

Attorneys for this episode 

Sarah Efthymiou 

Melissa Marichal Zayas 

Victor Rivera 

Josh Sattely, Social Impact Commons 

Shownotes 

• Overview of fiscal sponsorship  

• Our focus today is on 501(c)(3)s, but fiscal sponsors come in different forms, including 501(c)(4)s 

• There are different types of fiscal sponsorship, but the two most common are: 

• Model A (Direct/Comprehensive): Project operates within sponsor’s organization.  

• Model C (Grant Relationship): Sponsor collects donations and grants funds to the project. 

• Why Advocacy Matters for Fiscal Sponsors  

• Enhances impact, credibility, and systemic change. 

• What type of advocacy is allowed under fiscal sponsorship?  

• Lobbying: Direct vs. grassroots lobbying. 

• Non-Lobbying Advocacy: Educational activities, voter engagement, rulemaking, corporate influence, litigation. 

• What are some of the Key Concerns for Fiscal Sponsors Engaging in Advocacy?  

• Differentiating advocacy, lobbying, and political activity. 

• Compliance and reporting at state/federal levels. 

Best practices for educating projects on compliance: 

• Use existing resources like AFJ.  

• Discuss advocacy/lobbying expectations early. 

• Case studies of advocacy in action:  

• Network to Abolish the Death Penalty 

• Lift Louisiana, a fiscally sponsored project of Tides Center 

• Common Misconceptions About Advocacy & Fiscal Sponsorship  

• Overly conservative approaches due to funder restrictions. 

• Misunderstanding grant/lobbying reporting obligations. 

• Options for Projects Wanting to Go Beyond 501(c)(3) Limits  

• Form a 501(c)(4) or partner with an existing one. 

• Consider PACs or for-profit structures. 

• Key Takeaways 

• Stay engaged in advocacy but ensure compliance.  

• Push back on unnecessary funder lobbying restrictions.  

• Don’t overlook state/local advocacy.  

• Consider existing (c)(4) partnerships before starting a new one. 

Resources

• Social Impact Commons 

• Fiscal Sponsorship: 6 Ways To Do It Right by Gregory Colvin 

• Rules of the Game Podcast: Fiscal Sponsorship