It's mid-September and we are in the thick of election season. Ballots are going out, early voting is around the corner and many of you are working in coalitions on nonpartisan voter engagement. On this episode, we talk about what election coalitions are, why they're important and best practices for (c)(3)s and (c)(4)s that are in them.

Attorneys for this Episode

Susan Finkle Sourlis

Quyen Tu

Tim Mooney

Shownotes

Coalition Overview

• Definition of Coalition: Fully separate organizations with common goals, coming together for a set purpose

• Formal and informal coalitions

• Examples of coalition work

4 Principles for (c)(3)s

1. Uphill and downhill- your organization can only fund what it can do

2. Tax status stays with the organization, even when it's a part of a coalition

3. Proper documentation is essential

4. Be sure you know what hat you're wearing

Considerations for c4s

• Only engage in nonpartisan issue advocacy, ballot initiative campaigns, and nonpartisan voting rights campaigns when in coalition with (c)(3)s

• (c)(4)s have unlimited lobbying and may engage in some partisan activity

• A c4s tax status requires a primary purpose – can be achieved by lobbying ballot initiative and nonpartisan voter outreach

• Now the c4 can engage in partisan work outside these coaltion

Online Activity

• Must follow the same rules for (c)(3)s and (c)(4)s when engaging online

• Do your due diligence and know where links, tags, and hashtags go to

Resources

· The Connection: Guide to Creating and Operating 501(c)(3)s, 501(c)(4)s, and Political Organizations

· Comparison of 501(c)(3) and 501(c)(4) Permissible Activities (Factsheet)

· Navigating the Gray: Tips for working in coalition when the law isn't clear (Factsheet)

· Coalition Checklist (Guide)

· 501(c)(3) and 501(c)(4) Collaboration (Factsheet)

Working in coalition is one of the nonprofit sector's greatest strengths and can be especially powerful during election season. With the midterm elections around the corner, now is a good time for organizations to revisit their plans for election-related advocacy, including voter engagement, candidate education, and issue advocacy. A 501(c)(3) can collaborate with a 501(c)(4) and other nonprofits to advance common goals, pool resources, and build momentum. The key is knowing where collaboration ends and organizational boundaries begin, so allocate resources fairly, document cost-sharing agreements, and make sure each organization operates within the rules that apply to it.

In this episode, we'll explore best practices for 501(c)(3)s collaborating and sharing resources with organizations operating under different tax rules during election season, including how to keep coalition work effective, compliant, and nonpartisan.

Attorneys for this Episode:

Maggie Ellinger-Locke

Sarah Efthymiou

Monika Graham

501(c)(3)s Must Remain Nonpartisan

Internal Revenue Code: 501(c)(3) organizations are prohibited from directly or indirectly participating in partisan political activity on behalf of, or in opposition to, any candidate for public office.

The Facts & Circumstances Analysis

The IRS uses a "facts and circumstances" analysis to determine whether a 501(c)(3)'s communication about an issue is genuinely nonpartisan or is a veiled attempt to influence the outcome of an election. Factors include whether the communication mentions or evaluates candidates, references a candidate or election, occurs close to an election, or addresses an issue that distinguishes the candidates. The IRS also considers the broader context, including the timing, targeted audience, relationship to candidates' or political parties' communications, and whether the organization has a history of discussing the issue outside election periods. No single factor is determinative for the IRS looks at the full picture.

What are some best practices for engaging in coalition work during election season?

• Build out the coalition's structure in advance.

• Develop a memorandum of understanding (MOU) with coalition partners outlining shared goals, decision-making processes, communications, roles, and responsibilities.

• Establish written cost-sharing agreements in advance to specify how shared costs will be allocated.

• Clarify who is responsible for particular communications, activities, and resources.

• Have a clear plan for keeping the 501(c)(3)'s work completely independent from partisan coalition work.

• Questions to ask in advance:

• What are your shared goals as a coalition?

• Are you time-limited, meaning you plan to disband after the election, or do you plan to continue working together toward a shared policy goal?

• Who is a member of the coalition?

• How will you communicate?

• How will decisions get made?

• How formal or informal do you want the coalition to be?

What are some best practices for sharing resources?

What can organizations actually pool to increase their collective impact? Staff, volunteers, office space, equipment, communications, educational resources, and other shared assets can expand a coalition's reach and strengthen collaborative power. Organizations can share tools and capacity so long as they adhere to the rules that apply to each entity.

Things to Consider:

• 501(c)(3) resources and funds cannot be used to subsidize partisan political activity.

• Manage the expectations and agreements before you get going.

• Questions to ask:

• How will the organization share those resources?

• What are you going to share?

• Who owns or controls the resource?

• Which organization is using it, and for what purpose?

• How will costs be allocated?

• What happens if the use of that resource changes during the campaign?

Best Practices:

• Know the Rules & Maintain Clear Boundaries: Understand each organization's tax status; keep governance, finances, and branding separate; and ensure there is a method for preventing the (c)(3)'s work from becoming intertwined with partisan activity.

• Document & Allocate Resources Fairly: Use written agreements, allocate shared costs using a reasonable method, track staff time accordingly; and maintain records of expenses, reimbursements, and resource-sharing arrangements.

• Don't Blur Organizational Lines: Use separate websites, social media accounts, and email addresses; clarify roles and responsibilities for each activity and/or communication; and make sure (c)(3) staff, volunteers, and resources are used only for activities it can legally undertake.

• Avoid Free or Below-Market Resource Sharing: If a resource has value—such as email lists, mailing lists, or voter registration files —it generally should be reimbursed at fair market value or through a reasonable cost-allocation agreement.

• Best practice is to use a list broker.

• Renting or exchanging lists can raise other legal and/or tax questions. For example, while list rental income is generally considered royalty income (and exempt from UBIT), if rented to a campaign, this exception does not apply to rentals made to political campaigns or PACs (the IRS does consider this to be UBI and therefore subject to tax.

• Nonpartisan voter registration files may only be rented to a 501(c)(4) or 527 at fair market value or exchanged for data of equal value. Even then, the circumstances in which these agreements can be made are complex, so it's wise to get legal advice.

What's the bottom line?

Sharing resources can strengthen partnerships, reduce costs, and advance meaningful change. Coalition building is literally solidarity in action—organizations coming together to advance joint goals. And we know we are stronger together, so establish agreements upfront, allocate costs fairly, keep good records, and maintain clear organizational boundaries. When done thoughtfully, collaboration can amplify a unified voice and build momentum while protecting each organization's tax-exempt status.

Resources

The Connection

501(c)(3) & 501(c)(4) Collaboration

Sample Allocation of Costs Agreement

Rules of the Game: Can We Rent (Or Share) That?

Comparison of 501(c)(3) & 501(c)(4) Permissible Activities

Rules of the Game: A Guide to Election Related Activities for 501(c)(3)s

Get Out the Vote (GOTV) efforts are one of the most impactful ways 501(c)(3) public charities can strengthen civic participation and help ensure communities have the tools and information they need to make their voices heard. From voter registration and education to reminders and access assistance, (c)(3) organizations can play an important role in helping people navigate the voting process while remaining nonpartisan. On this episode, we explore best practices for designing effective GOTV efforts, including how nonprofits can engage their communities, train staff and volunteers, and navigate election-related rules.

Attorneys for this Episode:

Monika Graham Natalie Ossenfort Victor Rivera

501(c)(3)s Must Remain Nonpartisan

Internal Revenue Code: 501(c)(3) organizations are prohibited from directly or indirectly participating in partisan political activity (activity on behalf of, or in opposition to, any candidate for public office).

Keeping GOTV Efforts 501(c)(3) Safe Effective voter outreach for 501(c)(3)s is focused on expanding participation, not influencing who someone votes for. Therefore, (c)(3)s should refrain from using messages that support or oppose candidates, political parties, or groups of candidates. In addition, they should:

· Make voter outreach activities available to all eligible voters

· Ensure GOTV efforts are not coordinated with candidates or campaigns

· Avoid targeting communities because they belong to a particular political party, voted a particular way in the past, or because they vote in a district where the race is likely to be close

The IRS uses a facts and circumstances test when determining whether a 501(c)(3) has violated the rules against partisan electioneering.

Building a Strong GOTV Effort

· Start with your community. Use existing relationships and trusted communication channels to reach the people your organization serves. Connect with voters through tools and spaces they already use, such as text messages, social media, email newsletters, community events, and local partners.

· Plan ahead. Start by understanding your community's needs. Then, establish goals and timelines, create written policies and training materials, and train staff and volunteers on nonpartisan rules, including the difference between organizational activities and personal political activity.

· Build partnerships. Collaborate with community organizations, libraries, schools, faith-based organizations, and other trusted institutions to expand outreach and maximize impact. Just remember that if you are partnering with any organizations or entities that are not 501(c)(3)s, all of your collective work needs to remain nonpartisan.

· Track and evaluate your efforts. Document outreach activities and program decisions, assess what worked, and incorporate lessons learned to strengthen future GOTV efforts.

GOTV Activities 501(c)(3) Public Charities Can Conduct

501(c)(3) public charities can support voter participation by:

· Registering voters through nonpartisan voter registration drives

o NOTE: While this is true for public charities, private foundations have more restrictive rules related to voter registration activities and funding.

· Reminding people about upcoming elections and encouraging them to participate

· Sharing nonpartisan information that speaks to the voting process, including registration deadlines, polling locations, early voting, vote-by-mail options, and voter identification requirements

· Helping reduce barriers to voting by providing nonpartisan assistance, such as transportation to the polls, language access resources, or accommodations for voters with disabilities

Remember, some voter registration rules and other voter assistance requirements can vary by state and have probably been updated since the last election cycle, so it is important to train your staff and volunteers on the applicable (and current) rules.

Just Remember:

· In order to remain nonpartisan, 501(c)(3)s should not suggest who people should vote for in upcoming candidate elections.

· It's not just the Internal Revenue Code you need to think about. Federal election law and state laws also have a lot to say about how nonprofits can engage in election season advocacy.

o For example, federal election law prohibits giving someone something of value in exchange for voting.

o State law will likely regulate how you can interact with voters at polling sites, how and when voters can vote by mail (vs. in-person), and more!

Best Practices:

· Provide training to staff and volunteers so they know how to effectively engage in GOTV work without running afoul of the Internal Revenue Code, federal election laws, or state law.

· Develop and implement an organizational election season policy that is reviewed and signed by all staff, volunteers, and others who could potentially speak on behalf of your organization.

Key Takeaways:

· GOTV efforts are a powerful way for 501(c)(3) public charities to advance civic participation and strengthen communities.

· 501(c)(3) public charities can encourage people to vote while remaining nonpartisan.

· Thoughtful planning, training, and compliance practices help (c)(3)s strengthen civic participation in their communities

· Effective GOTV efforts can engage communities by leveraging trusted relationships, reducing barriers to participation, and providing clear, nonpartisan voting information.

Resources:

• Want to Conduct or Fund a Voter Registration Drive?
• The Rules of the Game: A Guide to Election-Related Activities for 501(c)(3) Organizations
• Voter Registration Rules for Private Foundations
• Nonprofits, Elections, & the Fine Art of Remaining Nonpartisan
• Sample 501(c)(3) Organizational Policy for Election Season
• Vote 411

On today's episode we will cover Charitable Solicitation Registration! If your nonprofit asks people for donations, you probably need to register with state regulators before you make the ask, and the rules are different in every state. We'll break down what charitable solicitation is, how it differs from your IRS tax-exempt status, what the most common misconceptions are, and what organizations should do to stay compliant with these laws. Today we are thrilled to be joined by our BA Summer Legal intern, Lina Zuluaga.

On this Episode

Brittany Leonard

Tim Mooney

Lina Zuluaga (Legal Intern)

Shownotes:

Opening: Intros (, Brittany, )

1. - Intro about

a. Lina's summer internship experience

2. - Starting with the basics: What is charitable solicitation and why does it exist?

a. Charitable solicitation registration is a state law consumer protection requirement

i. It is not a federal obligation

ii. States require organizations that ask the public for charitable donations to register with a state regulator, usually the Attorney General or Secretary of state, before they begin soliciting

b. The purpose is fraud prevention and transparency, not taxation.

i. States want to know who is asking their residents for money and how those funds are being used.

c. Roughly 40 states, plus D.C. have some form of registration requirement. About 10 states have no general charitable solicitation law. T[LZ1] [BL2] hese states don't have a general pre-registration requirement, though some still impose disclosure or other obligations

i. States with no registration requirements include Delaware, Idaho, Indiana, Iowa, Montana, Nebraska, South Dakota, Vermont, Utah and Wyoming.

ii. States with limited, or conditional registration requirements include Texas and Arizona. Their requirements are triggered by fundraising activities rather than a charitable solicitation act.

d. The key definitions to understand:

i. Solicitation: a request for a contribution for a charitable purpose, through any medium.

1. Example: sending mail to citizens of a particular state, asking them to donate to your cause!

ii. Contribution: a gift of money or property

1. Example: receiving a check in the mail from a new donor you've never contacted!

3. -Three registrations commonly confused: IRS tax exempt status, state business registration, and charitable solicitation registration

a. IRS 501(c)(3) determination – refers to federal tax-exempt status. The organization is exempt from federal income tax, and donors can deduct contributions.

i. Tax exempt status on its own does not authorize fundraising in every state.

b. State business registration – is required when a nonprofit has a presence or does business in another state. It's a corporate filing with the Secretary of State.

c. Charitable solicitation registration – separate, additional obligation triggered by asking for donations. Many states require nonprofits to submit their IRS determination letter as part of the state registration, underscoring that federal status is a prerequisite, not a substitute.

d. Myth #1 – Tax exempt status gives you nationwide solicitation coverage

i. Scenario: A newly formed 501(c)(3) receives its IRS determination letter. The board treasurer says: "Awesome! We're good to fundraise everywhere now!" Is that right?

ii. No! That's a common misconception. The IRS determination letter means the federal government recognizes the organization as tax-exempt. It says nothing about whether you can legally ask for donations in California, New York, or any other state. There are separate state-level obligations with their own applications, fees, and renewal deadlines to be aware of.

e. An IRS determination letter is not a license to fundraise. Federal tax-exempt status and state solicitation registration are separate legal obligations.

4. - Common misconceptions (FAQs)

a. - Do I need to register in every state we receive a donation from? For example, my nonprofit is based in Florida, and I receive a donation from someone in Indiana.

i. - No. Receiving a donation is not the same as soliciting one. Registration is triggered by making the ask, not by the receipt.

ii. - Also, Indiana is one of the states that doesn't have a charitable solicitation registration requirement. So, in this instance, registration wouldn't be required either way.

iii. – But this analysis would be different if the donation came from New York after you specifically solicited New York residents. Sending fundraising emails to residents there triggers New York's registration requirement.

b. How about if we have a donate button on our website. Do we need to register in all 50 states?

i. - The leading guidance comes from the Charleston Principles, developed in 2001 by the National Association of State Charity Officials, or NASCO.

ii. - Under the Charleston Principles, a nonprofit generally needs to register in a state if its website specifically targets residents of that state, or if it receives contributions from that state on a repeated, ongoing, or substantial basis.

iii. - A purely passive website with a donate button that isn't targeting any particular state generally wouldn't trigger registration everywhere.

iv. – That said, the Charleston Principles are guidance, not law. A small number of states including Colorado, Tennessee, and Mississippi, have enacted administrative regulations that mirror the principles' framework with specific numerical thresholds. In those states, the parallel rules are binding law, but their legal force comes from the state rulemaking process, not from the Principles themselves.

v. – the practical takeaway for organizations is that the Charleston Principles are a useful starting point, but they are not a safe harbor. You cannot point to them as an excuse for not abiding by state regulation. If you're doing active online fundraising, email campaigns to donors in other states, or geo-targeted advertisement seeking donations in another state, that's going to look a lot more like solicitation than a passive donate button on a website.

c. - Do we still need to register if we're a small organization just working with volunteers?

i. - In some states, small organizations may qualify for an exemption based on their revenue.

ii. -Two important points to consider: 1) thresholds for exemptions vary by state, and 2) many exemptions must be affirmatively claimed. Your organization may need to file a form to claim the exemption.

iii. smaller organizations may also wonder about membership dues and conference fees.

5. Membership Dues and Conference Registration Fees

a. – That's right. One question that came up during a technical assistance request this summer was whether collecting membership dues and conference registration fees would trigger a charitable solicitation registration.

b. - The short answer is generally no, because most states distinguish between charitable solicitations and earned revenue.

c. – The Model Act Concerning the Solicitation of Funds for Charitable Purposes, drafted by the National Association of Attorneys General (NAAG) and NASCO in 1986 defines "contribution" as grant, promise, or pledge of value in response to a solicitation, but expressly excludes bona fide fees, dues or assessments paid by members, provided that membership is not conferred solely as consideration for making a contribution in response to a solicitation.

d. - Conference registration fees are generally treated the same way. When someone pays to attend a conference and receives programming, materials, and meals of roughly equivalent value, that's program service revenue, not a contribution.

e. There's also instances to distinguish when membership fees may be considered solicitation

i. – One instance to consider is if membership is granted automatically to anyone who donates in response to solicitation.

1. A membership conferred solely as consideration for a gift may be considered a contribution.

ii. – Another instance is if you have a "supporter" tier priced well above the value of benefits. The excess can start to look like a contribution.

1. Contributions dressed up as dues risk losing the bona fide dues exclusion.

iii. – Also, if you add an option to donate on a conference registration form, or a 'sponsor and attendee' add-on, you've introduced solicitation into the same transaction.

1. The conference fee itself is earned revenue, but the donation ask is you asking someone for a gift.

6. Practical Compliance

a. What does registration actually involve?

i. – registration itself is typically straightforward. An application normally asks you to submit your formation documents, IRS determination letter, most recent Form 990, a list of officers and directors, description of fundraising activities, and a filing fee.

1. Some states accept the Unified Registration Statement, which is a multi-state form. Colorado, Florida, and Oklahoma do not accept it. Even states that do accept it may require supplemental documents.

ii. – Renewal is also an important compliance consideration. Most states require annual renewal, often tied to the organization's fiscal year-end, with a new Form 990 and fee each cycle. Organizations that miss a renewal may receive noncompliance letters from their state agency for failure to renew.

b. What happens if we don't register?

i. – The consequences are real and can escalate. Regulators can issue cease and desist orders, which means the organization must stop soliciting and take down donate links. In some cases, they may even have to notify donors. Some states issue fines each day until the violation is corrected.

ii. – Beyond direct legal consequences, there's also a reputational impact to consider. Violations can become public record. Some grantors and major donors review registration status as part of due diligence before giving to an organization.

c. When should organizations get help?

i. – it depends, but organizations may consider their size and the number of states they solicit donations in. For example, small, local organizations with smaller footprints in a few states can likely handle their registration and renewals themselves. Organizations that are soliciting in the double-digit states may want to consider outsourcing their compliance.

ii. – Organizations may also consider consulting with their legal counsel. It's helpful to talk to your lawyer when the question stops being "which form do I file" and starts being "what does this statute mean?" Interpreting state definition of contributions, responding to a cease-and-desist letter, structuring a professional fundraiser contract, or navigating a multi-entity fundraising arrangement all entail judgment calls that would be best informed by legal expertise.

Resources:

· https://afj.org/article/does-your-nonprofit-have-a-donation-page-heres-what-you-need-to-know/

· https://www.irs.gov/charities-non-profits/charitable-organizations/charitable-solicitation-initial-state-registration

· 2001 EO CPE Text State Charitable Solicitations Statutes, https://www.irs.gov/pub/irs-tege/eotopici01.pdf

· https://www.councilofnonprofits.org/running-nonprofit/fundraising-and-resource-development/charitable-solicitation-registration

· https://charitystateregistration.org/

· https://www.nasconet.org/resources/state-government

This week we are talking about 501(c)(4)s, or social welfare organizations. What are the advantages to starting one? How are they different than 501(c)(3)s and other types of nonprofits? And what are the important considerations when determining if a 501(c)(4) would be a good vehicle to use to conduct the types of activities you are hoping to engage in to achieve your mission? If you are curious about 501(c)(4)s, what they can do, and how they operate... this podcast episode is for you.

Attorneys for this Episode

Natalie Ossenfort

Susan Finkle Sourlis

Quyen Tu

Shownotes

Scenario:

· Existing 501(c)(3) has a mission focused on providing potable water to the residents of a community, who are currently unable to tap into a reliable water supply.

· The city, county, and state have failed to step up, so the 501(c)(3)'s staff raise funds for bottled water that they deliver to the community.

· What the organization's founders thought would be a temporary fix, has now been operational for several years, and the water situation is not improving.

· The 501(c)(3)'s founders want to do more to address the needs of the community, and some are considering starting an affiliated 501(c)(4).

General Rules & Characteristics for 501(c)(3)s:

· 501(c)(3) organizations have a very favorable tax status.

· They are tax-exempt, and their donors can take advantage of a tax deduction for their contributions.

· 501(c)(3) public charities are limited in the amount of lobbying (or legislative advocacy) they can engage in, and they are prohibited from engaging in partisan political activity.

Advantages of 501(c)(4)s

· 501(c)(4)s are social welfare organizations.

· They are tax-exempt organizations that operate for the common good and general welfare of the community.

· Donations to 501(c)(4)s are not tax-deductible for donors, but...

· 501(c)(4)s can conduct an unlimited amount of lobbying (or legislative) activity, and they can do some partisan work to support or oppose candidates for public office, but that type of activity must remain a secondary activity of the organization.

Scenario:

· If the 501(c)(3) founders wanted to advocate more aggressively for legislative changes that could provide a long-term solution to their community's water access problem, they might consider forming a 501(c)(4).

· How much political (or partisan) activity could the organization conduct? If a 501(c)(4) decides to engage in any partisan political activity, that must be a secondary purpose of the organization and not the primary purpose.

Primary Purpose Activities

· Issue advocacy and lobbying

o In our scenario, this could include advocacy in front of the local city council or state legislature for reliable access to water.

o It could also include ballot measure advocacy.

· Nonpartisan voter outreach to get out the vote and mobilize the community

· Conduct research and educate legislators on issues

· Engage in litigation to defend the rights of their constituents, and more...

Secondary Purpose Activities

· Candidate endorsements

· Voter outreach activities using partisan targeting

· Comparing the organization's stance on issues to where the candidates stand on those issues

· Encouraging people to vote for candidates from certain political parties or with certain issue positions, and more...

· When engaging in this type of activity, a 501(c)(4) must make sure that any partisan work remains a secondary purpose, and it must be mindful of and comply with campaign finance and election laws at the federal, state, and local levels.

Secondary purpose activity... how much is too much?

· A 501(c)(4) must maintain a primary purpose that is nonpartisan.

· Tax lawyers differ on what they think is the ideal primary / secondary purpose split.

· In order to be cautious, a 501(c)(4) could consider keeping its secondary purpose activities to 40% or less.

· The IRS has created a safe harbor for organizations applying for 501(c)(4) status:

· 60% or more of its total expenditures (including reasonably allocable overhead) and total time (measured by employee and volunteer hours) is devoted to social welfare activity; and

· less than 40% of its total expenditures and total time is devoted to political campaign activity.

Affiliated Organizations

Some things to keep in mind if a 501(c)(3) wants to form an affiliated 501(c)(4):

• Start-up costs should not come from the (c)(3), but instead should be independently raised for the formation of the (c)(4).
• Once the 501(c)(4) is formed, it should implement a cost-sharing agreement to ensure that no 501(c)(3) resources are being used to impermissibly subsidize (c)(4) work.
• It should implement time tracking systems to ensure that staff and volunteers track their 501(c)(3) and 501(c)(4) work separately.

How Would an Existing 501(c)(3) Decide Whether to Form an Affiliated 501(c)(4)?

· Examine whether your 501(c)(3) public charity is getting close to its lobbying limits, but still wants to do more legislative advocacy.

· Examine whether there is a need for a more political, and policy focused voice to advocate on your issues and support your communities.

· Examine whether you want to engage in activities that are prohibited for 501(c)(3)s, but permissible for 501(c)(4)s (support or opposition of candidates)

· Examine whether you have sufficient financial resources to cover the start-up costs of a 501(c)(4) from sources other than your 501(c)(3), etc.

Resources

· The Connection: Guide to Creating and Operating 501(c)(3)s, 501(c)(4)s, and Political Organizations

· Comparison of 501(c)(3) and 501(c)(4) Permissible Activities (Factsheet)

· Navigating the Gray: Tips for working in coalition when the law isn't clear (Factsheet)

· Coalition Checklist (Guide)

After the Supreme Court wrapped up its latest term, we thought it would be a good idea to revisit the unique opportunities 501(c)(3) public charities have to advocate in favor of or against specific nominations made by the Executive Branch that require confirmation from a legislative body. On this episode, we explore the nomination process for key positions and give you some best practices on how to ensure your organization can effectively (and legally) advocate for specific nominees.

Shownotes:

· Nomination advocacy often qualifies as lobbying (Internal Revenue Code).

o 501(c)(3) public charities are allowed to weigh in on executive branch nominations that are confirmed by a legislative body.

o According to the IRS, attempts to influence Senate confirmation of a federal judicial appointment are generally not considered campaign intervention (partisan activity), which is specifically forbidden by section 501(c)(3). However, because attempts to influence Senate confirmation are considered lobbying, they are subject to Internal Revenue Code lobbying limits.

§ Section 501(c)(3) public charities may engage in lobbying in furtherance of their exempt purposes, but they are limited in how much lobbying they can do.

§ Default rule: Lobbying may not be a substantial part of 501(c)(3) public charity's activities (3-5%).

§ Alternate rule: Public charities can make the 501(h) election to take advantage of potentially more generous, dollar-based lobbying limits.

o When lobbying, remember to use unrestricted dollars.

· Question: Can we establish a relationship with or educate nominees ahead of a confirmation hearing?

o Interacting with nominees is generally allowed. They are not treated like candidates since they are not running for office, but instead have been nominated to fill a specific role.

· Question: What about identifying potential candidates to fill up an upcoming vacancy?

o This is also OK. Organizations may choose to vet potential nominees in advance of a nomination being made to inform the executive branch about their suitability for the role. [GU1]

o That said, if you are asking an executive branch official to intervene in a legislative process (e.g. to make the nomination), that initial activity will likely count as lobbying as well[GU2] and need to be tracked against your public charity's lobbying limits.

· Question: Does this only apply to judicial nominations?

o No. The IRS allows 501(c)(3)s to lobby for or against any nominations to positions that require the "advice and consent" of a legislative body.

§ Article II, Section 2 of the US Constitution allows for the President to appoint officers to certain positions. These nominees are confirmed if they have the advice and consent of the Senate. This process usually requires legislative hearings by specific committees and ends with a vote by the Senate to confirm the nomination.

§ The nomination itself is treated as a piece of legislation, which is why lobbying rules kick-in when engaging in nomination advocacy.

· Question: What about nominations proposed by our Governor for specific state agencies?

o Is a legislative vote required in order for the individual to take office? If so, it is likely lobbying to weigh in and should count against lobbying limits.

o Remember: this type of activity could also trigger state or local-level lobbyist registration and reporting requirements. Check your jurisdiction's lobbying definitions and registration requirements to learn more.

· Post-Election

o 501(c)(3)s have a unique, post-election opportunity to get ahead of the game and work with newly elected officials, who will be in charge of nominating specific individuals as heads of agencies or departments.

o This type of transition advocacy is well within the realm of activities nonprofits can engage in, but check out our "transition advocacy" factsheet for additional details.

Resources

· Confirmation of Federal Judges and Executive Branch Nominees (Factsheet)

· IRS guidance on judicial nominations for 501(c)(3)s (Website)

· Transition Advocacy (Factsheet)

· Foundation Support for Public Charities that Influence Judicial and Executive Branch Confirmation Votes(Factsheet)

· Public Charities Can Lobby (Factsheet)

On today's episode, we are breaking down the 2026 state legislative season and how the landscape affecting nonprofit advocacy is shifting across the country. We are recording this in mid-June, and while most states have wrapped up for the year, not all have, so you are going to want to look at your state to get a sense of what's enacted, what's moving, and what's dead. What we're seeing this year is not just incremental change, but a rapid expansion of state-level regulation over campaign finance, ballot measures, voter access, and increasingly, what we are calling foreign influence laws or national security-style frameworks applied to civil society.

Attorneys for this episode

Maggie Ellinger-Locke

Susan Finkle Sourlis

Natalie Ossenfort

Shownotes

Overview

· This year, 46 states plus DC held legislative sessions.

· We tracked roughly 1,000 bills that could impact nonprofit advocacy.

· Of those bills that have now become law, almost half relate to state campaign finance and / or ballot measure processes.

· Perhaps the biggest story of the 2026 legislative session is the expansion of laws that borrow concepts from national security and apply them to nonprofit advocacy.

New Campaign Finance Laws

· Louisiana increased the threshold triggering disclosure for certain campaign contributions.

· West Virginia now not only prevents the public disclosure of certain contributor information, but also created a new criminal penalty for violations of the disclosure prohibition.

· Kansas eliminated the requirement for political committees to disclose the names of vendors when reporting disbursements

New Ballot Measure Procedures

· Ballot measure legislation accounted for 20% of the bills we monitored, about 350 pieces of legislation. Here, we saw 22 laws enacted across 13 states plus DC.

· Both Wisconsin and Utah now require signature gatherers to be at least 18 y.o.

· New York now requires legislators to draft questions at an 8th grade reading level or below, and Maryland did something similar.

· South Dakota eliminated the requirement to place ballot measures on a separate ballot from candidate elections.

· In Missouri, voters will decide this August whether to approve a change to that state's ballot measure procedures. Currently, in order to pass, measures need a simple statewide majority, but under Amendment 4, a majority in all eight of the state's congressional districts would be required.

New Lobbying and Ethics Laws

· This type of legislation constituted about 13% of all bills we tracked.

· In Minnesota, certain lobbying communications conveyed to the public must now include a disclaimer to identify the lobbying principal, who is responsible for the communication.

Laws Related to Law Enforcement Presence at the Polls and Voting

· Legislation was enacted in California, Maryland, New Mexico, and Connecticut to restrict law enforcement presence at the polls.

· The new Connecticut law also removed the statutory list of reasons required to vote absentee, effectively allowing no-excuse absentee voting. It also permits 17-year-olds who will be 18 by election day to vote early or by absentee ballot.

· Kansas moved up the deadline for early voting.

· Mississippi now requires ballot counting to be finalized on the night of the election.[SS1] [ME2]

Foreign Influence Laws

· We made note of 89 such bills filed across 26 states and 12 laws enacted across seven states.

· Florida enacted a domestic terrorist organization (DTO) designation framework that will allow the state to designate certain groups as terrorist organizations and then criminalize any support those groups receive from that point forward.

· In Indiana, a new law authorizes the designation of domestic groups and individuals as "affiliates" of federally designated foreign terrorist organizations. The same law creates new investigatory powers for the state AG.

· Other foreign influence laws we saw enacted this session come out of Alabama, Iowa, Nebraska, and Oklahoma, all of which seek to curb the flow of money into elections from overseas.

Takeaways & Reminders

· Many of the most significant experiments in regulating nonprofit advocacy are now occurring at the state level.

· Compliance teams should continue to update and refine their review processes to ensure any obligations that could be triggered by state-specific rules are being met.

· Remember that states differ on when and whether a ballot measure committee must register, what counts as a contribution or expenditure, when disclaimers are required, and what donor disclosure rules apply. These rules are in active evolution.

· When it comes to foreign influence or terrorist designation laws, states are increasingly willing to experiment with new regulatory frameworks.

· It is critical to stay informed about developments in your state and remain vigilant to ensure your nonprofit is flexing its advocacy might to the fullest extent possible under the law.

This week, we are diving into the world of philanthropy. We are thrilled to be joined by Matthew L. Evans from the United Philanthropy Forum who will help us understand how philanthropy is evolving to meet this moment and what challenges and opportunities we are seeing for funders and philanthropy infrastructure organizations.

Guests for this episode

Brittany Hacker Leonard

Tim Mooney

Matthew L. Evans

Shownotes

• Matthew L. Evans is the United Philanthropy Forum's VP of Advocacy and External Relations. Matthew has more than 14 years of public policy, government relations, and external affairs experience. Before joining the Forum, he was Director of Public Policy & Special Projects for the Southeastern Council on Foundations in Atlanta, where he worked to ensure the legislative and regulatory success of the philanthropic sector in the South. He currently serves as the staff lead for the Forum Public Policy Committee and is a member of the Nonprofit VOTE National Leadership Council.

• Welcome again, we are thrilled to have you joining us! Could you start off by giving our listeners an introduction to the United Philanthropy Forum and your great work?

• Can you explain what a philanthropy infrastructure org is? (How has the sector evolved)

• We were lucky to be presenters at Foundations on the Hill this year, can you tell the listeners a bit about what that is, what you are trying to achieve, and how it went this year?

• What would you recommend for foundations that want to get more involved with policy work like this?

This year / Current threat environment:

• What is the biggest hurdle for funders and philanthropy infrastructure orgs this year? And what do you see as a biggest opportunity in the sector?

• What do you think is the most pressing thing for foundations to be funding in this moment, and do you think that aligns with the most pressing needs of the nonprofits this year?

• Do you have any advice for the public charities out there listening? What should they understand about funders and what they are looking for in this moment?

• What is your most aspirational goal for the philanthropic sector?

• Thank you so much for joining us …. We have a number of resources linked in the show notes for listeners who want to dive more into the world of philanthropy. Our focus on foundations hub on our website is a great place to start and we encourage you to check out our resources on how funders can effectively support advocacy through general support grants, project specific grants, and more.

Resources

• Focus on Foundations Hub

• The Project Grant Rule

• 16 Grantmaking Characteristics to Effectively Support Public Policy Advocacy

• How Can Foundations Support Policy Change

• Foundation Advocacy Grants: What Grantees Need to Know

• Investing in Change: A Funder's Guide to Supporting Advocacy

• Philanthropy Advocacy Playbook

Employees and volunteers of public charities often participate in the political and democratic process in ways that connect to their organization's mission. While a 501(c)(3) cannot engage in partisan activity, individuals don't give up their First Amendment rights when they are staff, board members, or volunteers of a public charity. In our last episode, we talked about candidate appearances at charitable events. But what if the call is coming from inside the house? In this episode, we'll share some practical tips and best practices to help you engage in electoral work as an individual while keeping your organization safely within the rules to protect its tax-exempt status.

Attorneys for this episode

Victor Rivera

Quyen Tu

Sarah Efthymiou

Show notes

Basic rule: 501(c)(3) organizations are prohibited from participating in partisan political activity. This rule also applies to anyone acting on an official capacity on behalf of the c3. This means that (c)(3) leaders, staff, and volunteers may not use the facilities, equipment, personnel, or other c3 resources to provide support to or oppose a candidate or campaign. However, this prohibition does not apply to the activities of officers, directors, or employees of 501(c)(3)s who are acting in their individual capacity.

Best Practices: Election Activities of Individuals Associated with 501(c)(3)s

• Know when you're on the clock. 501(c)(3) staff may work on political campaigns outside of work hours, or while using their available leave time. However, time for which a charity compensates a staff member is also the charity's resource and should not be used for supporting or opposing candidates. Even unpaid time off could be problematic if permitted to staff outside of standard personnel policy limits and preferentially allow them to volunteer on some campaigns and not others.

• Don't use c3 resources for political purposes. A charity should not allow its assets or facilities to be used for individuals' personal campaign work (including obvious resources like letterhead, photocopiers, and telephones, as well as perhaps less obvious ones like distribution lists, postal mailing permits, and email accounts). And, since 501(c)(3)-sponsored events use the organization's reputation and goodwill, 501(c)(3) representatives cannot support or oppose candidates at events.

• Adopt an election-season policy. 501(c)(3) organizations should make staff aware, in writing, of policies against using organizational resources for supporting or opposing candidates.

• Make clear what hat you're wearing. Individuals should make it clear that they are speaking for themselves and not for the organization when participating in partisan activities off the charity's clock.

Best Practices: 501(c)(3) Employees Running for Office

In addition to supporting candidates, individuals who work for or serve as board members for 501(c)(3) organizations may wish to run for office themselves. In those situations, it is important for the 501(c)(3) associated with the candidate to avoid supporting or opposing the candidacy, as well as avoid giving the appearance of supporting or opposing the candidacy.

• Avoid allowing 501(c)(3) resources to be used for campaign activities, including facilities and staff time.

• If mentioning candidacy, do so for informational purposes only.

• Confirm whether government grants place any restrictions on staff running for office.

• If using a 501(c)(3)'s social media accounts, be careful about liking or sharing content from the candidate's account/campaign.

Resources

• Rules of the Game: Guide to Election-Related Activities for 501(c)(3)s

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

• 501(c)(3) Employees Running for Office (Factsheet)

• Election Activities of Individuals Associated with 501(c)(3)s

• Board Members and Election Year Activities)

• The Hatch Act of 1939: Frequently Asked Questions

• 8 Tips For Nonprofits with Employees Running for Public Office

When nonprofits speak out on issues in the public square, the line between education and electioneering can get blurry – especially during election season. On this episode of Rules of the Game, we break down what the law allows when organizations comment on statements made by candidates and campaigns, and how those rules shift when addressing the actions of incumbents who may also be on the ballot. From issue advocacy to the risk of impermissible political intervention, we walk through practical scenarios and key guardrails to help your nonprofit stay compliant while engaging in advocacy to advance your mission.

Shownotes

Basic rule: 501(c)(3) organizations are prohibited from supporting or opposing candidates for public office, which means that their advocacy and actions have to remain nonpartisan.

· Black and White: 501(c)(3)s can't endorse candidates, and they can't explicitly tell people who not to vote for. On the other hand, nonprofits can emphasize the importance of voting in a nonpartisan way, and they can continue to educate voters about issues core to their missions without suggesting who people should vote for in an upcoming candidate election.

· Shades of Gray: IRS utilizes a facts and circumstances analysis to determine whether a nonprofit's communication is permissible or a violation of the tax code's electioneering prohibition for 501(c)(3)s. While not an exhaustive list, some facts and circumstances the IRS might consider include…

o Timing of the communication

o Targeted audience

o How the message relates to what candidates and political parties are saying, and more!

· The IRS has also indicated that messaging that includes distorted facts, disparaging language, or statements not aimed at developing the audience's understanding of a mission-related issue can indicate a violation of the law.

Commenting on Candidates and Campaigns

· No clear guidance from IRS on how to do this safely, but based on the required facts and circumstances analysis, best practices could include:

o Focusing on what was said (the issue), not who said it (the candidate)

o Avoiding discussions about candidate qualifications or whether someone is a good or bad candidate

o Scripting responses before talking to reporters or the public (since you may very well get a question related to the election and who people should vote for)

o Avoiding comments about a candidate's record or personal characteristics

o Avoiding references to voters and the upcoming election

o Not comparing your position on an issue to where the candidates stand on that issue

· Remember: It is permissible to monitor what candidates say and do so that you can prepare for the future.

o The risk arises for 501(c)(3)s when they communicate in a way that could be perceived as attempting to influence the outcome of a candidate election.

· Examples[NRO1] :

o "What if Candidate X states during a candidate debate that "our community's water quality meets all safety standards." Can a local environmental justice 501(c)(3) correct the record if that statement is false?

§ Yes. The organization could clarify that the claim is inconsistent with recent state water quality reports. It could then point to publicly available testing data.

§ The key is to avoid discussing the particular candidate who made the statement and instead to focus on the issue itself. Use this as an opportunity to educate the public on issues core to your mission.

§ To minimize risk, avoid mentioning the candidate by name, issue disclaimers (reminders that you are a 501(c)(3) and that you do not support / oppose candidates for public office), and focus on issues in alignment with the organization's mission.

Commenting on the Actions & Statements of Incumbents

· 501(c)(3) public charities can criticize or praise the votes and official statements of current government officials. Best practices include:

o Focus on official actions only (without mentioning if an incumbent is up for reelection)

o Time communications to coincide with policy actions (as opposed to increasing praise or criticism in the days leading up to the election).

o Have a track-record of working on the issue, and make sure it's central to your mission.

o Include commentary on legislators and other government officials who are NOT up for reelection. If you focus solely on the actions of incumbents running for office, that can raise a red flag.

o Use nonpartisan criteria when deciding on which official actions and statements to call out and respond to.

o Exercise particular caution when commenting on an issue position that clearly distinguishes candidates in an upcoming election.

· Example:

o What if a mayor in a 501(c)(3)'s jurisdiction decides to support funding cuts to programs that provide housing to the unhoused and services for housing-insecure community members? Can the 501(c)(3) public charity chime in?

§ Yes. A 501(c)(3) could issue a press release criticizing the mayor's statement in support of funding cuts and urge the city to restore services where needed.

§ The charity would want to have a history of working on related issues to ensure the statement is in alignment with its mission and history of advocacy.

§ It would also want to avoid mentioning any upcoming elections or noting that the mayor is up for re-election.

§ In addition, it's important for the organization to comment on the official statement and action immediately, as opposed to waiting until just before candidate elections occur.

Resources

· Rules of the Game: Guide to Election-Related Activities for 501(c)(3)s

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

· Praising and Criticizing Incumbents (Factsheet)

· Commenting on Candidates and Campaigns (Factsheet)