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 

Every day we answer questions from nonprofits about how they can be the most effective advocates they can be while staying legal. On this edition, we answer some of your questions as we get ready for a big year of advocacy!

 

Attorneys for this Episode

Brittany Hacker

Monika Graham

Tim Mooney

 

How can a grantmaking organization effectively fund advocacy efforts while adhering to IRS regulations and maximizing impact?

     •           Transformative Impact of Advocacy Funding:

             •   Supports movements that change policies and empower communities.

             •   Advances social justice, environmental protection, and human rights.

     •           Key Grant Types for Advocacy Support:

             •   General Support Grants:

                    •              Not earmarked for specific purposes, providing grantees flexibility.

                    •              Can indirectly support lobbying without triggering taxable expenditures, provided no explicit agreement ties the funds to lobbying activities.

                    •              Past lobbying by a grantee does not disqualify funding unless explicitly linked to lobbying in the grant agreement.

             •   Specific Project Grants:

                    •              Designated for specific projects and can include lobbying within the project’s scope.

                    •              Total grants for the same project must not exceed the non-lobbying portion of the grantee’s budget.

     •           Legal Considerations for Grantmakers:

             •   Private foundations must ensure grants avoid taxable expenditures by following IRS rules for general and specific project grants.

             •   Public foundations and charities have more flexibility in funding lobbying but must adhere to lobbying limits under the “insubstantial part test” or “501(h) expenditure test.”

             •   Earmarked lobbying funds count toward lobbying limits for both grantmaker and grantee, effectively “double-counting” expenses.

     •           Maximizing Advocacy Support:

             •   Utilize safe harbor rules like specific project grants to contribute meaningfully without violating IRS regulations.

             •   Take a look at AFJ’s Project Grant Rule Hub and more for additional resources.

 

Our organization (we’re a (c)(3)) works to combat climate change and we have some deep concerns about the nominee for EPA. Our board isn’t sure if we can oppose the nomination or not – is this like the election where we can’t support or oppose the candidate?

·      Bad news… the EPA Admin nominee has super questionable takes on climate change.

·      Good news… you can oppose his nomination if you choose

·      This is different than elections where you can’t, because the law views the vote on his nomination is a legislative act

·      Counts as lobbying depending on how you do it

·      Check out episode 45 where we talk about nomination advocacy from the perspective of SCOTUS, but the rules are the same

 

We’ve heard a lot about the new administration coming after non-profits that may oppose their policy plans. What can we do to prepare and should we be worried?  

·      This is a valid fear for activists in the progressive movement

·      HR 9495 and threats from legislation

·      Rep. Billy Long as nominee for Commissioner of the IRS

·      Lobby for or against pending legislation, confirmations of cabinet positions

·      Plan for personal attacks: train volunteers and staff, know the law, have a communications plan to respond, take care of your staff

 

 

Resources

 

Rules of the Game #45 – Supreme Court Nomination Advocacy Revisited

Rules of the Game #109 – Politically Motivated Attacks

 

On this episode of the podcast, we will talk about the deluge of executive orders and a new memo freezing funding that has come in at the start of Trump’s new administration. How will they effect the work of non-profits and what can you do to support or oppose these and future executive orders.

 

Attorneys for this Episode

Tim Mooney

Brittany Hacker

 

Federal Funding Freeze Memo and Executive Orders

• Memo issued by the White House Office of Management and Budget (OMB).

• Halt on grants and loans distributed by the federal government.

• Implications for Medicaid, WIC, and other critical programs.

Legal and Constitutional Challenges

• Lawsuit filed against the funding freeze, citing violations of the Administrative Procedures Act (APA).

• Debate over the legality and scope of executive orders.

Nonprofit Advocacy and Response

• Importance of independent nonprofit organizations in countering these actions.

• Guidelines for 501(c)(3) organizations to legally speak out against executive actions.

Role of Funders

• Call for funders to fill gaps caused by halted federal funds.

• Encouragement for philanthropy to step up during this crisis.

Resources

·   Being a Player

·   Executive Orders Affecting Charitable Nonprofits - National Council of Nonprofits 

·   Rules of the Game - Foundation Funding Tips

For those who caught our most recent podcast on Nonprofit New Year’s Resolutions – Resolution #2 was to conduct an Advocacy Check Up. In this episode, we’re deeper into how to do that. We released new Nonprofit Self-Assessment tool, designed to help nonprofit organizations assess your overall compliance with federal and state advocacy-related tracking and reporting requirements, and to identify opportunities to build your organization’s advocacy capacity.

Attorneys for this Episode

Quyen Tu Sarah Efthymiou Susan Finkle Sourlis

 

ü   Governance & Administration: Strengthen your nonprofit’s compliance and operational efficiency

·      Having legal and accounting support from professionals with knowledge of nonprofits can help safeguard against unnecessary risk and prevent costly errors

·      The IRS recommends, and some states require, that certain organizational policies are maintained, such as document retention & destruction and conflict of interest policies.

·      Most states have registration and reporting requirements when nonprofits solicit funds from their state’s residents. Nonprofits should regularly review their fundraising activities (including online) to determine whether they need to register.

 

ü  Funding Sources: Once your legal house is in order, we suggest that you look at your funding sources.

·      The type of funder will help determine what type of funds you are dealing with, e.g., general support vs. project specific grants, single-year vs multi-year grants.

·      Determining the funding source will help you understand how you can spend the funds, whether there are limitations, and how you pay for the day-to-day operational costs for your nonprofit.

 

ü  Advocacy Activities, including lobbying

·      Important to understand if an activity or communication is lobbying or nonlobbying advocacy.

·      Whether your nonprofit has taken the 501(h) election will help you know your lobbying limits as a 501(c)(3), as well as how to define lobbying.

·      Don’t forget that many activities may look like lobbying but fall under an IRS exception. The checklist has you covered there, too.

·      State and federal lobbying disclosure rules may apply to your work, too.

 

ü  Coalition and Affiliate Work

·      The checklist also raises questions to consider when establishing and setting up a coalition and affiliate relationships. For example, Do you have a cost sharing agreement? Do you share staff, how do you keep track of the programs that are distinct to each organization? Are staff aware of the difference between the two orgs? These questions are important to the foundational principles of how c3s and c4s can work together – or in broader coalitions.

·      The basic principle is in regards to the flow of money and assets, we refer this as riding a bike up the hill – money or shared assets (like sharing staff) from the c3 to a c4 is slow deliberate process and you need to have the systems in place to ensure that the c3 is not supplementing or supporting the allowable c4 political activity.

·      Having the appropriate documentation and keeping track are also important principles to follow.

ü  Nonpartisan Election Activities

·      Although one election cycle just ended, another one is underway – there will be many local and state elections in the odd year. Thinking about and preparing for election-season activities should be part of every nonprofit’s check-up.

·      Do staff or volunteers understand the rules around nonpartisan activity? Do staff or volunteers know what hats they are wearing – what can they do in their official organizational capacity or as an individual on their own personal time?

·      In this section, think about your activities your nonprofit might participate in, e.g., will you conduct town halls, candidate questionaries, or voter education?

Resources: The primary resource that we highlighted today is our new Advocacy Check-Up: Nonprofit Self-Assessment. Within the checklist, you’ll find links to Bolder Advocacy and other helpful resources that will help you complete your assessment and be in the best position to advocate for your organization, your mission, and your communities.

It’s officially 2025, and nonprofits across the country are diligently preparing for upcoming legislative sessions, a presidential transition, and other critical advocacy initiatives. The Alliance for Justice Bolder Advocacy team is here to help when questions arise about nonprofits’ ability to engage with government officials and pursue policy change. In the meantime, we’ve also compiled a list of our Top 10 nonprofit New Year’s resolutions to help your organization ready itself for 2025 and beyond. 

 

Attorneys for this Episode 

Monika Graham 

Victor Rivera Labiosa 

Natalie Roetzel Ossenfort  

 

1. Level-up Your Social Justice Advocacy 

• Check out our new Advocacy Playbook series for an overview of the laws and regulations that apply to 501(c)(3) public charities when they engage in lobbying and election season advocacy.  

• Resources designed specifically for advocates working in key issue areas: 

1. Environmental Justice 

1. Criminal Legal Reform 

1. Gender and Reproductive Justice 

1. Labor and Economic Justice 

1. LGBTQ+ and HIV Communities 

1. Health and Disability Rights 

1. Racial Justice and Immigrant Rights 

1. Democracy and Voting Rights 

 

1. Conduct an Advocacy Check-up 

• Our new Advocacy Check-Up: Nonprofit Self-Assessment is designed to help your 501(c)(3) public charity assess its overall compliance with federal and state advocacy-related tracking and reporting requirements and to identify opportunities for you to build your organization’s advocacy capacity.  

• The goal is to ensure that your nonprofit is aware of the opportunities for advocacy allowed by the tax and election laws that govern lobbying and election-related activity by tax-exempt organizations. 

 

1. Brush-Up on State Law with Bolder Advocacy’s Practical Guidance Series 

• Lobbying: Working to impact legislative or executive branch policy at the state-level? State lobbying disclosure rules may apply to your work. 

1. Be aware of changes to the law that might have taken effect in the new calendar year. 

• Voter Assistance: Do you know what it means for your 501(c)(3) to remain nonpartisan, but also want to learn about state rules related to voter engagement activities?  Take the time to learn how to safely register voters, engage in line-warming activities, and more. 

 

1. Take Stock of Your Nonprofit’s Capacity to Evaluate Your Advocacy 

• Consider the data you already collect. 

• Track media and policy developments related to your work. 

• Make use of free tools and resources:  

• User’s Guide to Advocacy Evaluation Planning 

• Data Playbook 

• When the Best Offense is a Good Defense: Understanding and Measuring Advocacy on the Defense 

 

1. Amplify Your Impact with Text and Robocall Campaigns 

• Using text messaging or call campaigns to interact with your community and supporters? If so, it’s time to brush up on the federal and state rules related to robocalling and robotexting campaigns. 

• Coming soon! Updated 2025 Robocalling guide containing details about consent requirements, mandatory disclaimers, and more! 

 

1. Advocate for Key Appointments in New Executive Administrations 

• In the coming months, new administrations at the federal, state, and local level will appoint individuals to many positions that could impact your nonprofit’s policy priorities. Your organization can help ensure the appointment of individuals whose values align with your mission and the needs of the communities you serve. 

• Keep in mind that advocating for or against nominees that require a legislative body to confirm the nomination is generally considered lobbying. On the other hand, making recommendations for positions that do not require legislative approval is not lobbying for tax code purposes. 

 

1. Be Prepared to Defend Your Nonprofit and Its Work 

• Ensure that your legal house is in order by conducting an advocacy check-up (see Resolution #2). 

• Prepare and train your staff and volunteers in how to respond to potential threats that may arise in-person and through social media. 

• Assess your online systems for potential gaps in cyber security. 

• Check out our factsheet: Tips for Nonprofits: Preparing for the Possibility of a Politically Motivated Attack 

 

1. Educate the Public about the Legislative Process. Introduce communities and 

constituencies to the legislators who represent them. When community members 

meet legislators face-to-face and discuss the issues that affect their everyday lives, not only do legislators receive the information they need to represent their communities, but those communities are empowered to invest more heavily in the outcomes of policy debates, giving them a stronger hand in their own future. 

• Conduct research and produce relevant resources that reflect the real story of your community and its needs. 

• Educate the community on the issues that matter most to your organization. 

• Host educational conference where people can gather, network, share information, and plan for the future. 

• Conduct leadership training to provide individuals with the skills needed to be spokespersons for potential policy reform.  

 

1. Work Together. Join forces with other nonprofit organizations to maximize advocacy, share resources, and harness power in order to more effectively drive real and lasting policy change. 

• (Podcast) Working Together: Affiliation and Coalition Basics 

• (Guide) Coalition Checklist 

• (Guide) The Connection: Strategies for Creating 501(c)(3)s, 501(c)(4)s, and Political Organizations 

 

1. Become an AFJ Member 

• The strength of Alliance for Justice is rooted in our membership of nearly 140 organizations that share a commitment to an equitable, just, and free society.  

• Throughout the 40+ years of AFJ’s history, our members have been at the forefront of defending our communities’ constitutional rights and building power across the progressive movement to fight for social justice. 

• Benefits include: 

1. Priority access to Bolder Advocacy resources and special members-only training events 

1. Free public webinar and on-demand webinar registration 

1. Cutting edge research on judicial nominees 

1. And more!  

A recent Fifth Circuit holding in Memorial Hermann has caught the attention of lawyers in our space, with some wondering if the tax law rules on how 501(c)(4)s operate may change. But what did the court really say, and how should 501(c)(4) advocacy organizations react? On this special holiday edition of the pod, we are joined by Larry Gold of Trister Ross Schadler and Gold to understand what this case says and what it means for (c)(4)s in 2025 and beyond. 

Attorneys for this episode 

Tim Mooney 

Susan Finkle Sourlis 

Larry Gold, Trister Ross Schadler and Gold

 

Show notes 

• What is Memorial Hermann? 

• Very basics of the case 

• Basics of the holding 

• Where does this court’s ruling apply? 

• 501(c)(4) organizations must exclusively operate for the social welfare,  how is that interpreted to mean primarily, and the limit on items that do not as social welfare as secondary activity. We frequently talk about one of those secondary activities a lot – partisan political work. But this case focuses on another thing – can you explain why commercial activity does not promote social welfare?  

• The concern raised by some is the court’s move to a smaller insubstantial standard for commercial activity may also apply to political activity, limiting the amount advocacy groups can engage in. How does the law treat commercial activity and political activity differently, and does that distinction matter here for other courts that may be addressing this? 

• Do (c)(4)s in the Fifth Circuit that engage in partisan political advocacy need to change what they’re doing or how much they’re doing? What about (c)(4)s outside of the Fifth Circuit? 

• There’s another layer to all of this with (c)(4)s that have filed Form 1024s accepted by the IRS – can you explain what that is and why filing a 1024 now may be a good idea for some (c)(4)s that haven’t yet? 

• What’s happening next with this case? 

• What’s your take on how various media outlets have presented this case – do you think they’ve helped or muddied the waters? 

• On a scale of 1 to 10 where 1 is a yawn and 10 is metaphysical crisis, where are we now with Memorial Hermann for (c)(4)s?  

 

Resources - Tim 

The Rules of the Game 

 

 

On this episode, we discuss how nonprofits can engage in advocacy during this time of transition and prepare for 2025.

Attorneys for this episode

Sarah Efthymiou

Víctor Rivera Labiosa

Melissa Marichal Zayas

Show Notes

 

Post-Election Communications: Prohibition on Campaign Intervention

·       Keep in mind that 501(c)(3)s should never indicate that they support or oppose candidates for public office, whether in the past, present, or future.

• Permissible communications for 501(c)(3)s:
• Congratulating a newly elected official or thanking a former candidate for their hard work during the election.
• Discussing the organization’s nonpartisan voter engagement.
• Commenting on the demographics of who voted or didn’t vote.
• Encouraging a peaceful continuation or transfer of office.

·       Impermissible communications for 501(c)(3)s include:

o   Suggesting that the organization attempted to influence the outcome of an election.

o   Supporting efforts to draft a named person to run for office in a future election.

o   Declaring that the organization or voters will hold an elected official accountable in the next election.

 

Transition Advocacy: Is it Lobbying?

·       Transition advocacy is a hot topic, especially after elections, and one of the most common questions we get from 501(c)(3) public charities is whether it counts as lobbying. The short answer? Sometimes, yes—but often not.

·       In general, lobbying involves efforts to influence specific legislation. For 501(c)(3) organizations operating under the insubstantial part test, advocacy for or against legislation qualifies may count as lobbying.

·       If an organization has made the 501(h) election—which allows nonprofits to maximize and clarify their lobbying limits—the IRS uses a different definition. Under the 501(h) expenditure test, lobbying breaks down into two categories:

o   Direct lobbying: Speaking to a legislator and expressing a view about specific legislation.

o   Grassroots lobbying: Communicating with the general public to express a view on specific legislation andincluding a call to action.

·       Under the 501(h) expenditure test, two key factors determine whether your activity qualifies as direct lobbying:

o   Are you speaking to a legislator?

o   Is the topic you’re discussing considered specific legislation?

If the answer to both is "yes," it likely counts as lobbying.

·       Examples of lobbying activities during transition period:

o   Advocating about spending priorities

o   Supporting/opposing nominations of new exec cabinet officials or judiciary

o   Advocating for changes in laws or amending current laws

o   Advocating for a new program – if would require new legislation

·       Important to assess what you’re saying, who you’re saying it to, and whether any exceptions apply.

 

Transition Advocacy: When is it Not Lobbying?

·       Some organizations may try to avoid engaging in lobbying activities so it’s important to understand what their non-lobbying options are during this transition

·       During this period, organizations can try to get to know their newly elected officials. Meeting with these officials, without trying to influence any nomination process or any piece of legislation (including the budget process), does not count as a lobbying activity.

·       On top of that, nonprofit organizations can do the following:

o   Recommend transition team members

o   Get involved in the executive order process

o   Develop relationships with these newly elected officials

o   Talk about nominations that do not require the advice and consent of a legislative body (or a legislative vote)

o   Actively participate in the rulemaking process

§  Beware: it may count as a lobbying activity at the state/local level

o   Take advantage of the 501(h) lobbying exceptions!

 

Resources

Can We Say That? Post-Election Advocacy for 501(c)(3) Organizations

Preparing for Change: How Nonprofits Can Shape Policy By Engaging Transition Teams

Transition Advocacy: Is it Lobbying?

The Advocacy Playbook Series