Rules of the Game: The Bolder Advocacy Podcast

With only a small handful of weeks remaining until the general election, you may be wondering about how you or your nonprofit can get involved in voter assistance activities such as providing rides to the polls, registering voters, and helping voters vote by mail. Would you be surprised that these activities are often regulated by both state and federal law? On this episode, we’ll discuss our Practical Guidance Voter Assistance resources series, created in partnership with Democracy Capacity Project, and explain some of the rules you should be thinking about in the final countdown to the big day.

Attorneys for this episode:

Tim Mooney

Natalie Ossenfort

Victor Rivera

General Overview of Relevant Law

·      When engaging in any election-related activities there are several areas of law that your nonprofit should think about:

o   Internal Revenue Code: explains the types of activities your nonprofit is allowed to engage in accordance with the tax code

§  501(c)(3)s: Keep it nonpartisan. No support or opposition of candidates. Allowed to engage in campaigns for or against ballot initiatives, constitutional amendments, bond measures, city charter amendments. Just remember that this activity may count as lobbying at the federal level.

§  501(c)(4)s; (c)(5)s, (c)(6)s: Partisan political activities as secondary activities of org

§  PACs: Regulated by Section 527 of tax code. Partisan political work as focus, but different types of PACs may be restricted in terms of whether they can engage in coordinated vs. independent expenditures

o   Other federal laws, including the Federal Election Campaign Act: always going to be relevant in elections with federal candidates on the ballot

§  Provisional ballots available  even if they aren’t under state election laws (i.e. can vote provisionally for POTUS if there’s a dispute as to registration status and resolve that later)

§  Accessible ballots required under the Help America Vote Act (HAVA).

§  Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) requires states to provide absentee ballots for military personnel, their families, and U.S. citizens overseas in federal elections.

§  Voting Rights Act (VRA)

·      requires jurisdictions with significant populations of non-English-speaking citizens to provide bilingual election materials and assistance, ensuring all voters can understand and participate in the process.

·      allows observers from the Department of Justice or the U.S. Commission on Civil Rights to monitor elections to ensure compliance with voting rights laws, especially in areas with a history of discrimination.

o   State law: Often regulates

§  Who, when, how you can register voters

§  Who is eligible to vote-by-mail (and when)

§  Line-warming activities designed to encourage voters to stay in line

§  Rules for poll watchers

§  Voter ID required in some states

§  And more!

Practical Guidance Voter Assistance Series

o   Focuses on state law, but also includes some federal law tips throughout

o   (Questions answered include:

o   How can our organization help people vote by mail?

o   Can we help with a rides to the polls program?

o   How can we help voters already at the polls?

o   When might our work also trigger campaign finance laws?

o   Can we advocate for a new polling place?

o   Current states:

o   Alaska, Arizona, California, Colorado, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maine, Minnesota, Michigan, Mississippi, Nevada, New Hampshire, New Mexico, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Virginia, Wisconsin

o   Texas line-warming example

o   Reminder that many states don’t have polling places (in traditional sense) since they’ve shifted focus to vote-by-mail.

Resources:

·      Practical Guidance Voter Assistance Series: https://afj.org/bolder-advocacy/practical-guidance-nonprofit-voter-assistance-series/

·      Rules of the Game: Guide to Election-Related Activities for 501(c)(3)s: https://afj.org/resource/the-rules-of-the-game-a-guide-to-election-related-activities-for-501c3-organizations/

·      The Connection: https://afj.org/resource/the-connection-strategies-for-creating-and-operating-501c3s-501c4s-and-political-organizations/

 This is a special rebroadcast of our episode on election protection and nonpartisan voter assistance from 2022. Since the original airing, Bolder Advocacy, in partnership with The Democracy Capacity Project, has expanded our series of state law guides on nonprofit voter assistance. Most states are covered and you can find them on our resource library page. We'll be back in two weeks with a brand new episode.

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On this episode, we’ll discuss how different types of tax-exempt organizations can ensure the right to vote is protected by engaging in election protection activities and assistingvoters at the polls. and potentially afterwards. Whether it’s poll monitoring, ballot curing, staffing an election protection hotline, or providing rides to the polls, we'll discuss the rules that apply to 501(c)(3)s and 501(c)(4)s so that your organization can ensure that all eligible voices are heard this election season. 

Attorneys for this episode  

• Tim Mooney  
• Natalie Ossenfort 
• Quyen Tu 

Shownotes 

• Poll watching / observing 
• Litigation 
• Rides to Polls 
• Ballot chasing and curing 
• Poll monitoring 
• Count monitoring 
• Voting education 
• Nonpartisan activity
  • No support or opposition of candidates
  • Facts and Circumstances
  • Follow FEC rules if federal candidates on ballots (no incentives for voting or registering to vote) 
• State law often adds layers of complexity here – be sure to know what is allowed in your state
  • Ohio: must stay outside 100ft no-solicitation permitter when line warming
  • Michigan: strict rules related to hiring a car to provide rides to the polls (effectively prohibited unless voter unable to walk)
  • CO / TX: strict rules that apply when you want to hand out and collect voter registration applications
• Voter Assistance Series (AZ, CA, CO, FL, GA, IL, Maine, Michigan, Minnesota, Nevada, New Hampshire, New Mexico, NY, North Carolina, Ohio, Pennsylvania, TX, Virginia, Wisconsin)
  • Voter Registration Rules
  • Vote by Mail Rules
  • Correcting errors on absentee ballots (ballot curing)
  • Rides to Polls Rules
  • Line Warming Activities  
  • Poll Watching
  • What about selfies? 
• Partisan Voter Protection
  • Ballot Chasing and Curing can be done with a partisan focus (for instance, only trying to cure votes of one party, litigating on behalf of a candidate)  
  • Off limits for c3s, which must engage in nonpartisan advocacy ONLY 
  • Ok for c4s but counts as secondary activity 

Resources Practical Guidance – Voter Assistance Series, released in partnership with the Democracy Capacity Project  Rules of the Game – Guide to Election Related Activities for 501(c)(3)s  Election Checklist for 501(c)(3)s Combating Voter Suppression & Election Subversion

As AI continues to advance, its potential to influence elections and democracy, both positively and negatively, has become a critical issue. In this episode, we delve into the rapidly evolving intersection of artificial intelligence and election disinformation with Jonathan Mehta Stein where he discusses how AI, particularly generative AI, can be used to create deepfakes and other misleading content that could destabilize elections, deceive voters, and potentially alter election outcomes. We also explore how nonprofits and community organizations can play a crucial role in combating this emerging threat.

Attorneys for this episode

 Quyen Tu, Melissa Marichal Zayas

Guest: Jonathan Mehta Stein, Executive Director of California Common Cause and the California Initiative for Technology and Democracy (CITED)

1. Introduction to AI and Election Disinformation:

   - Jonathan Mehta Stein introduces the concept of AI and its implications for democracy.

   - Overview of CITED (California Initiative for Technology and Democracy) and its mission to protect democracy from AI-powered disinformation.

2. Understanding AI and Generative AI:

   - Explanation of artificial intelligence, generative AI, and their applications in everyday life.

   - Discussion of the potential dangers of AI when it comes to sensitive areas like crime prediction and loan approvals.

3. Deepfakes and Their Impact on Elections:

   - Definition and examples of deepfakes—AI-generated videos or audio that portray people doing or saying things they never did.

   - The global rise of deepfakes in elections, with examples from Taiwan, Slovakia, and the United States.

4. Local Elections and the Threat of Deepfakes:

   - Jonathan shares concerns about deepfakes being used at the local level, where they may go unnoticed and could significantly impact election outcomes.

   - The particular risks faced by communities of color, immigrant communities, and non-English speakers.

5. What Can Nonprofits and Community Members Do?

   - Practical steps for verifying information and combating disinformation in your community.

   - The importance of being a trusted messenger and educating your community about digital threats.

6. The Role of Tech Companies:

   - How major tech companies are responding (or not) to the challenges posed by AI and disinformation.

   - Discussion on the first U.S. presidential election where AI is playing a significant role.

7. Policy Solutions and Legislative Efforts:

   - Overview of the legislation being proposed to regulate AI and disinformation in the election context.

   - CITED’s policy framework for requiring digital watermarks and labeling AI-generated content.

8. Parting Thoughts:

   - Jonathan's optimism about the nonprofit sector’s ability to rise to this new challenge, and the urgency of addressing these threats in the short term.

Resources

- www.cited.tech

- AI Threats in the Election

- Commenting on Candidates in Campaigns

- UC Berkeley IGS Poll on Digital Threats

As we’ve talked about on previous editions of the pod, advocacy includes a wide array of different options to help change things for the better in our communities. One of the more important, but less discussed methods, is litigation. On this episode, we dive into the role litigation plays in nonprofit advocacy, its treatment under the law, and things to think about if your nonprofit is looking to use this tool for good.

Lawyers for this episode

Natalie Ossenfort

Tim Mooney

Quyen Tu

• Litigation as an advocacy tool (citizen suits, appeals, amicus briefs etc.)
• Treatment under tax law
• Relation to charitable purpose
• Not lobbying under 501(h) or insubstantial part definitions
• Not limited by IRS / Tax Code

• Spectrum of engagement
  • Example: Letter of Support signed by over 225 organizations in support of the Fearless Foundation (currently under legal attack for a program that supports the funding of black female entrepreneurs)
  • Example: In 2018, Alliance for Justice and Council on Foundations filed a joint amicus brief in the case of Parks Foundation vs. Commissioner of Internal Revenue arguing for a narrow interpretation of what it means to “express a view on specific legislation” when determining whether a nonprofit’s activities constitute lobbying.
  • Example: Lambda Legal focuses on litigation in support of LGBTQ+ rights and individuals living with HIV/AIDS. They represent clients in cases involving discrimination, marriage equality, and transgender rights, participating in all stages of litigation. Currently representing AFJ member PFLAG in a Texas case.
  • Example: Clean Water Act citizen suits suing polluters for discharges without a permit – we’ll talk more about this specifically later
  • Standing: must show harm to the organization or members of the organization
• Publicly supporting (or opposing) another organization’s litigation
• Amicus briefs
• Representing clients
• Litigating as a plaintiff (citizen suits, standing)

• Things to think about
• The law (who are the experts in relevant area of law?)
• The courts (judges matter!) - For more check out AFJ’s federal and state court resources on our website.
• Capacity (internal or external)
• Staff and resources (funding and time)
• Reputation with funders, members, public
• In-house or outside counsel
• Media impact and PR
• Insurance (not sure if this is too deep in the weeds?)

• Examples
  • Lawsuits typically target government agencies, industrial polluters, and corporations to enforce existing environmental laws
  • Clean Water, Clean Air Act, National Environmental Policy Act (NEPA), Endangered Species Act, Resource Conservation and Recovery Act (RCRA), Safe Drinking Water Act
  • Litigates claims of actual innocence made by individuals convicted of serious crimes in Texas.
  • Example: Former client, Johnny Pinchback, wrongfully convicted of sexual assault of two teenage girls in Dallas (proven innocent via DIA testing) and formally exonerated via post-conviction habeas corpus litigation
  • Stories of clients like Johnny led to increased public awareness of wrongful convictions and even legislative reforms
• Earthjustice (AFJ member) + Waterkeeper Alliance
• Legal Services Corporation & regional public interest law; Legal Aid at Work, Legal Aid Association of CA, CA Women’s Law Center, Tzedek
• Innocence Project of Texas (member of Innocence Network, which is also home to AFJ Member, Innocence Project)

• Resources
• Issue Advocacy: Why Courts Matter
• State Courts Hub
• AFJ Database of reports on federal judges and judicial nominees

In this episode of the podcast, we explore the importance of student advocacy and voting. Additionally, we discuss how 501(c)(3) organizations can engage in advocacy efforts during election season. Joining us today is Ally, our Bolder Advocacy legal intern, to answer questions about the impact of student advocacy on campus. 

Hosts:

Susan Finkle Sourlis (Attorney)

Monika Graham (Attorney)

Alexandra Roseberry (Intern)

1. On-Campus Advocacy Culture
   • On-Campus Activities 
   • Voter Laws and Students
   • Getting Involved With Advocacy as a Student
2. How Nonprofits Can Participate in Nonpartisan Voting Education
   • Voter Registration Programs
   • Encouraging Voting
   • Polling Information
3. How 501(c)(3)s Can Engage During Election Season
   • Issue Advocacy 
   • Candidate Education
   • Voter Education
   • Voter Engagement
   • Ballot Measures
   • Private Foundations
4. Student Organizations and Youth Groups 
   • Rhizome
   • Youth on Root

Resources:

• Rules of the Game - https://afj.org/resource/the-rules-of-the-game-a-guide-to-election-related-activities-for-501c3-organizations/
• Our guidelines for most of the 50 states on voter outreach and voter registration activities - https://afj.org/bolder-advocacy/practical-guidance-nonprofit-voter-assistance-series/
• Project Grant Rule
• ACLU KYR  -  https://www.aclu.org/know-your-rights
• https://www.nonprofitvote.org/get-registered-to-vote/ 
• https://www.lawyerscommittee.org/ 
• Rhizome - https://www.werhize.org/
• Youth on Root - https://www.youthonroot.org/

We are back again with another edition of Ask Us Anything where we select some of the most popular questions we've received lately to answer on the pod. We are also thrilled to introduce Bolder Advocacy's two newest attorneys Brittany Hacker and Melissa Marichal Zayasas they join us on the pod.

1. Effective Ways for 501(c)(3) Private Foundations to Advocate During Election Season:

• Voter education

• Issue advocacy

• Conducting research and publishing reports

• Making grants to public charities

2. Can Nonprofits Endorse Candidates Up for Election?

• Differences in rules for 501(c)(3) and 501(c)(4) organizations

• Nonpartisan activities for 501(c)(3) organizations

3. Nonpartisan Voter Education Through Candidate Questionnaires:

• Guidelines for creating and distributing candidate questionnaires

• Best practices for maintaining nonpartisanship

4. Responding to Misinformation as a 501(c)(3) Organization:

• Issue advocacy and focusing on the issue rather than the candidate

• Sharing educational resources without partisanship

• Best practices for communication during election season

Political attacks on nonprofit organizations can come in many forms, including legal challenges or public smear campaigns. Given the current political climate, organizations that engage in policy reform and election season advocacy are coming under increased scrutiny. As a result, it is crucial to be proactive and develop a comprehensive strategy to safeguard your organization’s reputation and operations. On this episode, we will discuss how your organization can ready itself in advance of potential politically motivated attacks. 

Lawyers for this Episode 

Monika Graham 

Susan Finkel-Sourlis 

Natalie Ossenfort 

Threats Directed at Nonprofit Organizations: 

1. Attempting to Criminalize Social Services 

• Texas Attorney General launched investigation of an organization that provides services to the immigrant community 

• 3 Activists in Georgia were arrested after their organization’s charitable bail fund posted bond for individuals who protested against Atlanta’s “Cop City.”  

1. Congress Conducting Increased Investigations of Nonprofit Organizations 

• Ways and Means Committee issued Request for Information (RFI) asking responders to identify groups they believe are using voter registration and education to sway the outcome of candidate elections 

• In May 2024, House Oversight and Accountability Committee Chairman James Comer and Committee on Education and the Workforce Chairwoman Virginia Foxx launched an investigation into the funding sources of about 20 organizations that have funded recent anti-Israel demonstrations across U.S. college campuses 

1. Using Repressive Tactics to Discourage Public Participation 

• 3 organizers arrested and charged with a misdemeanor obstruction of highway or other passageway after the peacefully marched in protest of a confederate monument 

• 79 people arrested and charged with criminal trespass for participating in a protest at the University of Texas 

• Incorrect or purposely distributing misinformation around elections.  

1. Other threats include organizations being covertly contacted by those who want to catch them “red-handed” in an illegal act, doxxing, and more!  

Tips for Preparation: 

1. Adopt Clear Organizational Policies: 

• Organizations should adopt policies regarding nonprofit activities, communications, and responses to political issues. 

• Ensure that all staff and board members are trained and aware of these policies, and maintain copies of signed policies for your records. 

1. It is a best practice to include these policies in your employee handbook and to require signature during employee onboarding. 

1. If you don’t already have policies in place, consider their adoption. 

• Election season policy to establish expectations for staff when acting on behalf of the organization vs. in their individual capacity 

• Social Media Policy, including information on how to maintain boundaries between work-related and personal use of social media 

1. Prepare Staff and Volunteers: 

• Review and understand the rules for engaging in advocacy, including lobbying and election season advocacy. This should include a review of local, state, and federal laws that may apply to your organization’s activities.  

1. Schedule training for your team so that everyone is on the same page and understands how to properly track, report, and engage in important public policy and election-related activities. 

1. If training is not an option, encourage your staff to review nonprofit advocacy rules on their own time (see resource suggestions below).  

• Train staff on how to deal with questions.  

• Don’t let anyone pressure you to say something you don’t want to state. 

• Let your staff know that it is always better to report any suspicious activity, and identify who staff should notify if they suspect that something is awry. 

• Have a legal response plan in place that designates legal counsel to address potential challenges swiftly and an organizational leader, who is authorized to respond to accusations made against your nonprofit. 

• Consider requiring staff to participate in IT trainings designed to increase their awareness of potential online threats. 

1. Keep Good Records & Remember to Report: 

• Keep accurate and complete records, and ensure your filings are in order.  

1. Nonprofits should carefully track their lobbying, ballot measure advocacy, and other projects to comply with lobbying limits and ensure accurate reporting to the IRS and relevant state and local authorities. 

1. Remember to timely and accurately file any required lobbying disclosure reports, campaign finance (e.g. ballot measure) reports, and your organization’s annual exempt organization return (990).  

• Check out our resource entitled “Keeping Track" to make sure staff are trained to properly track their time. 

1. If you are attacked, stay calm.                     

• Reassure board members, staff, volunteers, and supporters that you are diligently gathering the facts. 

• Share information with your coalition partners and allies so they are not caught off-guard and can prepare for questions that may arise. 

• Go back to your response plan, and put it into action. 

Resources

• Tips for Nonprofits: Preparing for the Possibility of a Politically Motivated Attack 

• Being a Player: A Guide to the Lobbying Regulations for Advocacy Charities 

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

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

• Keeping Track: Guide to Recordkeeping for Advocacy Charities 

On this episode, we dive into the fundamentals of campaign finance reporting, exploring the essentials of what is included in these reports and uncovering valuable insights they provide. From contributions and expenditures to reporting requirements and deadlines, we break down the intricacies of campaign finance reports to empower you with the knowledge needed to navigate and comprehend campaign finance reports.

Attorneys

Monika Graham

Susan Finkle-Sourlis

Victor Rivera Labiosa

Shownotes

- Types of Campaign Finance Reports

  - Federal perspective from the FEC (Federal Elections Commission)

  - Similarities in state-level reporting

  - Reporting requirements for federal candidates and campaigns

  - Itemized contributions and reporting over $200 contributions

- Contents of Campaign Finance Reports

  - Reporting contributions and expenditures

  - Itemized details for contributors (name, address, employer, occupation)

  - Types of expenditures (operating expenses, ads, mail pieces)

  - Requirement for specifying the purpose of expenditures

- Insights from Campaign Finance Reports

  - Identifying contributors and their occupations

  - Insights into industry and issue-based PAC contributions

  - Understanding compliance with reporting rules

- Reporting Deadlines and Requirements

  - Quarterly and monthly filing options

  - Late contribution and expenditure reports

  - Pre-election reports (pre-primary and pre-general)

- Benefits of Reporting Monthly vs. Quarterly

  - Differences in reporting frequency based on organization size and strategy

  - Flexibility to change filing frequency each election cycle

- Disclaimer Requirements for Communications

  - Purpose of disclaimers in public communications

  - Requirements for printed and broadcast ads

  - Candidate stand-by-your-ad statements in broadcast ads

Resources

The Rules of the Game

Election checklist

Practical guidance: Non-profit voter assistance series

FEC.gov

On this episode we are joined by Erin Bradrick, a principal at Neo Law Group, to delve into the complexities of tax law and its implications for nonprofit organizations during election seasons. Our discussion focuses on the distinctions between 501(c)(3) and 501(c)(4) organizations, the specific rules governing their political activities, and the strategies nonprofits can employ to navigate these regulations while effectively advocating for their causes to ensure compliance without sacrificing impact.

Lawyers for this episode

• Sarah Efthymiou
• Tim Mooney
• Erin Bradrick, NeoLaw Group

Shownotes

• 501(c)(3)s vs. 501(c)(4)s
• Election Activities and Enforcement
• Nonpartisan Election Activities
  • Voter engagement activities (registration, get-out-the-vote)
  • Issue advocacy, voter education, and candidate education
  • Commenting on sitting elected officials in their official capacity
• Challenges in Current Political Climate
• Fiscal Sponsorships
• Practical Advice for Nonprofits

Resources

• AFJ’s Nonprofit Voter Assistance Series
• AFJ’s The Connection
• AFJ’s The Rules of the Game
• National Council of Nonprofit’s on Fiscal Sponsorship

On this episode, we'll discuss the basics of federal election law, including what it regulates, and which tax-exempt organizations need to be aware of it. We'll also review recent FEC opinions that allow for interesting pre- and post-election activities for non-501(c)(3) organizations involving federal candidates.

Attorneys for this episode

• Quyen Tu
• Susan Finkle-Sourlis
• Tim Mooney

Shownotes

1. Federal Election Law Basics:

·          • Overview of federal campaign finance regulations

·          • Role of the Federal Elections Commission (FEC)

·          • Differences between federal and state campaign finance laws

2. Key Regulations:

·          • Source prohibitions and contribution limits

·          • Types of source prohibitions (e.g., corporations, foreign nationals)

·          • Contribution limits and exceptions for PACs and Super PACs

3. In-Kind Contributions and Coordinated Activities:

·          • Definition and examples of in-kind contributions

·          • Coordination with candidates and the implications

4. Recent FEC Opinions and Rulings:

·          • Door-to-door canvassing coordination

·          • Internet exception for unpaid communications

5. Ballot Initiatives and Federal Candidates:

·          • Federal candidates’ involvement in state and local ballot measures

·          • Recent advisory opinions from the FEC

6. Post-Election Activities:

·          • Ballot curing coordination with federal candidates

·          • Compliance requirements and legal considerations

• Rules of the Game

• The Connection (newly updated)

• Blog post on coordinating canvassing (AFJ Action)