Advocacy vs. Lobbying 101: Where’s The Line? January 19, 2018 SELECT SLIDES
WHAT IS LOBBYING? • Direct : communication with a legislator expressing views about a specific piece of legislation. Treas. Reg. 56.4911-2(b)(1) “ Senator, I urge you to vote YES on the Climate Change bill .” • Grassroots : communication with the general public expressing a view about a specific piece of legislation that includes a call to action. Treas. Reg. 56.4911-2(b)(2) “ The Budget Bill must not be passed unless it includes protection for the Dreamers. Tell your legislators to vote NO !”
ASPECTS OF LOBBYING Communication: Any type of conversation (including with a lawmaker’s staff), in – • person, by phone, email, letter, etc. Legislator: federal, state and local representatives and their staff (can include the • public if it is a ballot measure). Does NOT include members of special purposes boards (planning commissions, zoning boards, school boards). Foreign officials count if they are deemed legislators. Legislation: Any specific proposal to deal with an issue, whether or not introduced • as a bill. Does NOT include litigation, regulations (at any level of government), executive orders or interpretation or implementation of laws. “Reduce Smoking” versus “Pass HR 75 to ban smoking in public places.”
ASPECTS OF LOBBYING (CONT.) The Public : Those people who are not legislators or their staff members. A • communication to an organization’s members that urges them to contact legislators to express a view about a specific legislation is considered to be directly lobbying rather than grassroots lobbying. Call to Action: Any message urging the recipient to contact a legislator. • Includes providing the address, telephone number or other contact information of a legislator, a mechanism to ensure communication with a legislator, and identifying a legislator associated with a piece of legislation.
EXAMPLES THAT AREN’T LOBBYING Sharing information about your foundation’s work. Your work impacts the lives of elected officials’ • constituents. They want to hear from you about the work you are doing to improve and strengthen your shared communities. Discussing broad social, economic, or other issues. Foundations possess a wide range of expertise across • countless issues that impact our society and economy. You are the experts who are working to address these issues in your communities every day. Your policymakers want to hear from you about the status of these issues, and your approach to solving them. • Sharing a nonpartisan analysis, study, or research. If widely distributed (to the general public or a segment thereof) and legislative officials, is independent and objective, and offers enough information for a reader to draw her own conclusions. ( See several examples at Treas. Reg. 56.4911(2)(c)(1) and IRS Manual 7.27.19.3.5 ) Participating in litigation , such as through an amicus brief. • For private foundations , funding projects jointly with the government. •
EXAMPLES THAT AREN’T LOBBYING (CONT.) Co-hosted events, or jointly funded projects. Co-hosting a convening that brings stakeholders together • from across the sector can be a valuable way to connect and innovate for solving the issues that impact your communities. Engagement in regulatory affairs. Regulations are not considered specific legislation. Submitting • comments on a proposed rulemaking that would impact your work is a permissible advocacy activity. Self-defense communications. This type of activity is the exception to limitations on lobbying. Both public • charities and private foundations are permitted to attempt to influence specific legislation that would affect your organization’s existence, tax-exempt status, powers and duties, or the deductibility of contributions to your organization. • Funding the non-lobbying portion of another organization’s advocacy work (or funding lobbying activities incidentally through non-earmarked dollars). Sources: Council on Foundations, Advocacy Toolkit Internal Revenue Service website
GRANTS PRIVATE FOUNDATIONS MAY MAKE Private foundations may make grants to organizations that lobby, but they may not “earmark” the funds • for lobbying. Treas. Reg. 53.4945-2(a)(5)(i) To avoid triggering the lobbying tax, either: • a) Make a general support grant that is not earmarked for a particular purpose and is not earmarked for lobbying. UNLESS THE GRANT IS TO A 501(C)(4) OR A PRI, THE AGREEMENT DOES NOT HAVE TO STATE THAT THE FUNDS MAY NOT BE USED FOR LOBBYING (BUT PROCEED WITH CAUTION!). b) Make a specific project grant with funds that the grantee is only permitted to use for a specific purpose. i. Ensure that no portion of the grant is earmarked for lobbying; and ii. Review the grantee’s budget (should be signed by an officer of grantee) and assure that your foundation’s grant funds are only covering the non-lobbying portion of the budget. i. The lobbying versus non-lobbying portions of the budget must seem reasonable. ii. If grantee goes over the budget, it should not be an issue for the foundation, but the foundation should not fund them a second time or it may be held responsible if the funds are used for lobbying.
WHAT CAN WE DO?
A QUICK NOTE ON POLITICAL CAMPAIGN INTERVENTION Guidance on activities that are generally not prohibited: 1. Nonpartisan public education and training about the political process; 2. Educating all candidates on public interest issues; 3. Hosting a candidate debate or forum (with caution); 4. Inviting a candidate to speak at an event (with caution); 5. Publishing voting guide or legislative scorecards that focus on broad issues (with caution); and 6. Canvassing the public on issues.
A QUICK NOTE ON POLITICAL CAMPAIGN INTERVENTION Both charities and foundations are prohibited from: 1. Endorsing or opposing candidates for public office; 2. Making campaign contributions (monetary or in-kind) or expenditures for candidates; 3. Restricting use of mailing lists and facilities to certain candidates; 4. Asking candidates to sign pledges on any issue; 5. Increasing the volume or amount of criticism of sitting officials who are also candidates, as election time approaches; 6. Highlighting the differences between candidates for public office on a high-profile issue on which the candidates have diverging views; 7. Engaging in issue advocacy when there are no clear non-electoral purposes for doing so; 8. Criticizing incumbents up for election by attacking their personal characteristics or their status as a candidates as opposed to focusing upon substance of a policy issue.
THERE’S SO MUCH WE CAN DO! Image from standforyourmission.org
RESOURCES Alliance for Justice, Bolder Advocacy Initiatives https://www.bolderadvocacy.org/ • Philanthropy Advocacy Playbook – MNA Staying Legal: • http://www.stayinglegalmi.org/lobbying_and_political_activity.html#anchor3 Stand for Your Mission Tools: https://standforyourmission.org/resources-tools/ • CMF/ MNA Advocacy Handbook • http://www.mnaonline.org/CMDocs/MNA/Public%20Policy/AdvocacyHandbook.pdf • Minnesota Council on Foundations Advocacy Toolkit http://www.mcf.org/system/article_resources/0000/0163/advocacy_toolkit_1_.pdf Advocacy Funding: The Philanthropy of Changing Minds, GrantCraft www.grantcraft.org Charity Lobbying in the Public Interest www.clpi.org • Foundation Advocacy, Alliance for Justice www.allianceforjustice.org/foundation • Why You Can Lobby, Council on Foundations/United Philanthropy • Forum https://www.unitedphilforum.org/foundationsonthehill
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