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 

Threats to find and deport undocumented immigrants in the United States have grown immensely since the start of the Trump administration. Nonprofits can continue fight for immigrant rights and include undocumented activists in their advocacy efforts. Even though we at Alliance for Justice aren’t immigration lawyers (so what comes out of our mouth will not be legal advice), we felt it was important to address how nonprofits can work with undocumented activists and continue to fight for immigrant rights. In today’s episode, we’ll first talk about what undocumented activists can and cannot do when advocating with nonprofits and what nonprofits should keep in mind.

 

Attorneys for this Episode

Quyen Tu

Brittany Hacker

 

There are a number of ways that nonprofits can engage undocumented activists to help support their missions. And these activists are often the best voice to amplify when the rights at stake directly impact them.

·      Free speech and assembly: peaceful protest (be careful of arrest, could result in ICE arrest)

·      Advocate for policy change:

o   Advocate for or against executive orders and executive branch policies like ICE priorities and border protocols

o   Community organizing

o   Education of the public or officials

o   Lobbying

o   Ballot measure campaigns (check state & local laws)

o   Be plaintiffs in a court case or a nonprofit can file a case to represent the interest of undocumented immigrants: like ACLU case on birthright citizenship

 

There are a few things undocumented immigrants are not allowed to do, including:

·      Assist citizens in completing voter registration applications

·      Cannot contribute anything of value to federal, state, or local elections (money, volunteer time)–for both undocumented and visa holding immigrants

o   Considered a foreign agent interfering with an election

o   It is also prohibited for nonprofits to knowingly solicit or receive contributions from foreign nationals (including undocumented activists)

·      Vote in federal elections

·      Work without employment authorization

 

 

Best Practices:

-for non-citizens: Consult an immigration attorney! Be prepared if you engage in protest. Check out know your rights resources and trainings in the show notes.

– If you are a nonprofit planning work with undocumented activists:

·      Consult legal counsel: especially if doing partisan work

·      If you serve immigrant communities, have policies in place to protect clients and staff, know what ICE agents can and cannot do

-Make sure that your nonprofit is in good standing; have appropriate documents and robust compliance so if you are investigated, you know you’re operating on solid legal grounds. Check out our nonprofit advocacy check-up, a compliance list and recent episode on this topic.

 

Examples of great work involving undocumented activists:

·      ILRC: great immigrant rights tool kits, legal resources for immigrants about visas and other legal processes, ways to get involved with local lobbying and policy work

 

Resources

–Engaging in Advocacy with Undocumented Activists

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

–Advocacy Check-Up: Nonprofit Self Assessment

–ILRC know your rights Toolkit

–10 Things Noncitizen Protestors Need to Know (ILRC)

–NYLPI Guidance to Nonprofits Regarding Immigration Enforcement

–Immigrant Arc list of EOs on Immigration (includes status of litigation, NY focused but applicable nationwide)

 

Does your nonprofit want to build power and amplify its impact by engaging in robocalling and texting campaigns? Would it surprise you to find out that while this type of advocacy can effectively boost your reach and put you in touch with thousands (even millions) of supporters, it also comes with rules related to opt-out requirements, mandatory disclaimers, prior consent, and more? On this episode, we’ll introduce you to our new Robocalling guide and walk through several of the issues your nonprofit needs to think about before you pick up the phone or click send on a robocall or robotext campaign. 

  

Attorneys for this Episode 

Monika Graham 

Melissa Marichal Zayas 

Natalie Ossenfort 

 

Robotext and Robocall Campaigns 

• Federal Communications Commission (FCC), Federal Trade Commission (FTC), and Federal Election Commission (FEC) each regulate robocalls and robotexts 

• For example, the Telephone Consumer Protection Act (TCPA), enforced by the FCC, strictly limits when organizations can make robocalls and robotexts. Violations of TCPA can result in stiff fines, so know the rules before you launch your next campaign. 

• Keep in mind that many states also have their own rules on these communication methods. 

Federal Restrictions on Robocalls / Robotexts 

• What are robocalls and robotexts? Calls or texts made with an autodialer or using an artificial or pre-recorded voice.  

• Under federal law (the TCPA), a nonprofit organization must obtain an individual’s “prior express consent” to: (a) send a call or text to a cell phone using an autodialer, a prerecorded voice, or an artificial voice, or (b) to send more than three prerecorded or artificial voice calls to a landline in a 30-day period. 

• Express consent requires: 

• The person gave permission to be contacted at their cell phone number. 

• The call is within the scope of the consent given. 

• The person hasn’t revoked their consent. 

• Prior express consent is not the only consideration you need to think about before engaging in robocall or robotext campaigns. Identification, opt-out, and disclaimer requirements are going to be relevant too. 

• For example, federal law requires that all pre-recorded voice telephone messages to cell phones or landlines must include a specific identification disclaimer. Disclaimer must: 

• Clearly state at the beginning of the message the official registered name of the organization initiating the call, and 

• The telephone number of the organization (not the number of the vendor who placed the call, a 900 number, or a number for which charges exceed normal local or long-distance transmission charges). 

• Disclaimers may also be required if a non 501(c)(3) organization expressly advocates for or against a federal candidate or solicits contributions in relation to a federal election –> triggering federal campaign finance law, which is enforced by the FEC. 

• This type of disclaimer should not apply to 501(c)(3)s which are prohibited by the Internal Revenue Code from supporting or opposing candidates for public office. 

• Likewise, the IRS may require a disclaimer if fundraising solicitations are made by non-501(c)(3)s reminding the potential donor that contributions are not tax deductible. 

 

Remember: State Law Matters Too! 

• Many states restrict certain types of calls, like robocalls. When they do, they often apply to both cell phones and landlines. 

• In many instances, state laws are similar to the federal rules, but variations between state and federal law do exist, and some states restrict calls that would otherwise be allowed under federal law. 

• Consult with counsel before launching your campaign because common state law requirements include: 

• Notification or self-identification requirements 

• Time restrictions 

• Geographic limits 

• Permit requirements 

• Prohibitions on caller ID blockers 

• And more! 

• State law may also require lobbyist or campaign finance registration and reporting in some instances. 

 

FAQ

• New Robocalling guide contains a handy FAQ, where you can find answers to common questions like: 

• What are the best ways to collect cell phone numbers for these types of campaigns? 

• Are landlines treated differently than cell phones? 

• What happens when a cell phone number is reassigned to someone other than the person who provided consent? 

 

Resources 

• Robocalling Rules: Before You Pick Up the Phone, Hold That Call. What You Need to Know about Robocalls, Robotexts, and Autodialers