Rules of the Game: The Bolder Advocacy Podcast

On this episode, we'll look at ways nonprofit employees can become super sleuths – detectives for their organization. Let's say your organization has been asked to co-host an event with several new organizations with whom you're unfamiliar. Or perhaps, your organization is drawing some unwanted opposition from an organization that is spreading misinformation about your mission and its work. On this episode, we'll look at a variety of free, online tools you can use to learn about nonprofits, their leaders, and their funders as well as uncover bots spreading misinformation.

Attorneys for this episode

Victor Rivera Leslie Barnes Quyen Tu

Shownotes

· What you can glean from public records

· Where to look for news stories

· What to find on nonprofit and opposition websites

· Researching funders

· Uncovering messengers of misinformation – Astroturfing

Resources

Planning for Politically Motivated Attacks – Rules of the Game podcast

Secrets of 990 Rules of the Game podcast

Form 990 for 501(c)(4)s Rules of the Game podcast

Free Access to the full version of Foundation Directory partner locations – for researching funders and the grants they have awarded.

Pro Publica's Nonprofit Explorer

Candid – free search of foundations' 990 PF returns. Search for other nonprofits' 990 returns here.

IRS Exempt Organization Search – where you can search for determination letters, 990s (including the 990 postcard), revocations,

John Oliver's Last Week Tonight piece on Astroturfing (August 2018)

National Secretaries of State – business services

It rarely comes as a surprise to advocates that individuals and groups oppose their positions and fight against the policy outcomes they champion. However, in recent years the tactics have sometimes become more sinister, including manipulation of stances, slanted edits of secret recordings, and even illegal or unethical acts like hacking and doxxing. Being an advocate these days sometimes means you have to prepare for politically motivated attacks, and on this episode we talk about some of the things to think about before it happens.

Attorneys for this Episode

Natalie Ossenfort

Tim Mooney

Shownotes

Elected Officials Misusing their Authority

• In some states we are seeing official investigations of organizations based on a thin or weak record, often from questionable complaints
• Best practices

Attacks by Non-governmental Actors

• Organizations, individuals, online efforts by one or both
• Identify vulnerabilities.
• Best practices
• "Weird question" point person
• Prepare volunteers and staff
• Keep it short - "We follow all federal and state laws"
• Understand the laws
• Smart social media

Other attacks

• Hacking and Doxxing
• Best practice: IT trainings, strong passwords, VPNs, and other protections

If you are attacked . . .

• Don't overreact, reassure staff, board, key supporters you're gathering the facts
• Share with others in your coalitions so they know what may be coming
• Get a handle on the facts — be clear with what you know and don't know
• Have a plan in place to respond

Resources

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

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

Practical Guidance Series: Lobbying

Practical Guidance Series: Nonprofit Voter Assistance

We are excited to be joined on this episode by a former colleague and guest from NGOsource, Shyaam Subramanian. NGOsource is helping to streamline the international grantmaking process and ease both restrictions and reporting requirements for international grant awards by making equivalency determinations. NGOs (or international nonprofits) that receive grants through this process are better able to build collective power and address issues faced in their communities.

Not only are we excited about this topic, but we're excited to have Shyaam back on this show. You all might remember him from earlier pod episodes... recorded back when Shayaam was Senior Counsel for AFJ's Bolder Advocacy program.

Shyaam and his colleagues work with US donors and NGOs to determine if an international nonprofit is organized and operated like a U.S. public charity. This process is called an equivalency determination or ED. NGOs that receive an ED can receive general support from U.S. private foundations and donor-advised funds, and potentially use the funds for more types of advocacy activities, including lobbying or legislative campaigns.

Attorneys for this episode

Natalie Ossenfort Leslie Barnes

Guest Shyaam Subramanian, Legal Counsel at NGOsource

Shownotes

1. Key concepts in Grantmaking

1. What is an Equivalency Determination (ED)?

1. What options does a funder have if an NGO does not receive an ED?

1. A brief overview of ED requirements

1. NGOsource's repository model and collaboration with Council on Foundations

1. Impact stories

Resources

NGOsource – all about equivalency determinations, newsletters, and more

Can A Private Foundation Make a Grant to Non-Public Charity

International Advocacy & Lobbying Podcast

Responding to the Ukraine Crisis: What Nonprofits and Foundations Need to Know

We sometimes refer to 501(c)(4)s are the multitools of tax-exempt organizations because they can advocate in so many ways. But because they can engage in partisan political activity, they aren't as easy to fundraise for… but that's where this podcast steps in! On this episode, we cover the ways to fund a 501(c)(4) and why it's something all funders should consider to achieve their policy goals.

Attorneys for this episode

Leslie Barnes

Natalie Ossenfort

Tim Mooney

Shownotes

It's harder to fund a (c)(4) compared to a (c)(3) - why?

• Individuals cannot deduct contributions from income tax (that's why disclaimers required notifying donors that contributions are not tax-deductible)
• Foundations can only fund what they can do themselves (rules are more restrictive for private foundations that for public foundations)
  1. Both prohibited from funding partisan political activities
  2. Ability to fund lobbying varies based on type of foundation

Why fund a (c)(4)?

• They can do more in relation to the causes you care about (which may be important if you're an individual funder)
  1. Unlimited lobbying
  2. Some partisan, political activity (as secondary activity)
• They might have better expertise than other orgs
  1. Subject matter experts, staff
• Bigger impact in systems change, change the electoral landscape

How to fund

Individuals

• Not many restrictions
• donations not tax deductible

Public charities/Public foundations

• Need to restrict funds from being used for partisan electoral purposes
• Best to direct how much of the funds can be used for lobbying
  1. By default, grants to c4 are treated as lobbying absent evidence to the contrary (count against grassroots lobbying limit)
  2. Grassroots lobbying grant counts against Grassroots lobbying limit
  3. Direct lobbying grant counts against direct lobbying limit IF you can show that funds were actually spent on direct lobbying (otherwise, default is to count against GR limit)
  4. Can make a controlled grant to avoid having to count the grant against lobbying limits, but this requires grantee to use funds for non-lobbying purposes
• Example – granting unused lobbying capacity

Private foundations

• Expenditure responsibility grants
  1. 1) Requires pre-grant inquiry (develop level of trust with potential grantee to build confidence that grant will be used only for specified purposes.
  2. 2) Requires a written, signed grant agreement
     • Has to restrict lobbying, partisan political activity, voter registration
     • In most cases, must also restrict grants to individuals
  3. 3) Requires grant reports on how funds were spent and progress toward achieving grant objectives
  4. Also can use this rule to fund other nonc3s.

Resources

Philanthropy Advocacy Playbook

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

Maximizing Your Advocacy

How to Fund a 501(c)(4)

Public foundations play an important role in our communities by providing critical funding to nonprofit organizations. But, did you know that they can also engage in advocacy campaigns and work with legislators and other government officials to impact public policy? On this episode, we'll dive-in to the rules public foundations need to know when advancing their missions through advocacy.

Attorneys for this episode

Natalie Ossenfort

Victor Rivera Labiosa

Quyen Tu

Public Foundations (like community foundations) are a type of public charity!

• This means that while they are not permitted to support or oppose candidates for public office and must remain nonpartisan,

• They ARE allowed to lobby within their lobbying limits and can engage in other, non-lobbying, advocacy as well.

• Types of non-lobbying advocacy

There are two tests set out in the tax code that public (community) foundations may use to measure how much lobbying they are permitted to engage in.

1. Insubstantial Part Test

1. 501(h) Expenditure Test

Examples

• Silicon Valley Community Foundation

• Restaurant Workers' Community Foundation

• Texas Women's Foundation

Resources

Philanthropy Advocacy Playbook

Community Foundations and Advocacy

Public Charities Can Lobby

Rules of the Game: A Guide to Election Related-R

On this episode, we present another edition of advocacy in action focusing on the work our colleagues at Alliance for Justice are tackling around Supreme Court ethics. This has been a topic we've championed for decades, but recent events have underscored how important a topic it continues to be. We're happy to have a special guest to guide us through the ins and outs of the topic, AFJ and AFJ Action President Rakim Brooks.

Lawyers for this Episode

Leslie Barnes

Rakim Brooks

Tim Mooney

Shownotes

A SCOTUS Code of Ethics

· Why doesn't the Supreme Court have an ethical code like other entities?

· How would an ethics code address recent troubling developments like Justice Alito leaking the Hobby Lobby opinion, or determining how Justice Thomas could sit for cases involving the insurrection given his wife's role in January 6th?

· Is an externally enforce code better than the proposed internally enforced code the Court has considered?

· What is AFJ's position?

Congressional Oversight

· Legislative committees overseeing SCOTUS

· Likelihood of legislation

· How advocacy on this subject is impacted by the rules

· Impeachment as an option in certain cases

Ethics and the Bigger Picture

· Ethics and recent erosion of fundamental rights and politicization of SCOTUS

· Progressive Constitutionalism

Resources

Supreme Court justices discussed, but did not agree on, code of conduct, Washington Post (February 9, 2023).

Supreme Court Weighs Ethics Code as Critics Push for Change, New York Times (February 9, 2023).

AFJ Letter to House Judiciary Committee

We've talked about how private foundations can fund advocacy, but we are frequently asked what they can do themselves to push for policy change in the communities they serve. On this episode, we cover the do's and don'ts of private foundation advocacy.

Attorneys for this episode

Tim Mooney

Natalie Ossenfort

Quyen Tu

Shownotes

We'll get to the do's in a bit, but first the don'ts – don't support or oppose candidates for public office and don't engage in any activity that meets the definition of lobbying.

• IRS rules - 501(h) definitions apply (direct & grassroots lobbying)
• Any expenditure that meets the definition (paid staff or earmarked grant)
• Consequence – excise taxes
  • 20% of the amount spent is assessed on the foundation
  • 5% of the amount expended (up to a maximum of $10,000 for a single expenditure) is assessed on a foundation manager if they "knowingly, willfully and without reasonable cause" agreed to the lobbying expenditure
• There are plenty of things private foundations can do that are similar to lobbying or excepted from lobbying – it's not worth getting the excise tax!

The do's - options for private foundations

• Non-lobbying advocacy
  • Activity that does not have all of the elements of either direct or grassroots lobbying within the 501(h) definitions
  • Meeting with legislators? Don't advocate for specific legislation. Instead, speak about the issues within your portfolio broadly, and to the successes your funding has had. If asked what your stance is on a pending bill, do not answer ("It's a trap!") because that becomes direct lobbying.
  • Communicating with the public? Here you can boldly promote your stance on legislation so long as you don't include a call to action, urging the public to contact legislators. This is a very underutilized option!
  • Ballot measures? Remember advocacy on these is direct lobbying so it's best to avoid advocating on these as a private foundation. Educating without urging a vote one way or another avoids the excise tax.
  • Other forms of nonlobbying advocacy
    • Regulatory advocacy
    • Advocacy before special purpose boards (i.e. school boards, water districts, etc.)
    • Convening decisionmakers to discuss a policy topic
    • Sign onto an amicus brief or otherwise participate in litigation
    • Education campaigns
  • Lobbying exceptions
    • Nonpartisan Analysis, Study or Research
      • Content: full and fair analysis
      • Distribution: broad public distribution and/or to government officials or employees
      • Can take a stance on legislation
      • Often print reports, but don't have to be
      • Watch out for subsequent use rule
      • Earmarking a grant for this is also not lobbying
      • Annie E. Casey Foundation uses this exception a lot. Examples include advocating for expanding the Child Tax Credit, policy proposals (some that would require legislation) around student debt. They also earmark funds for reports done by grantees that fit in this exception, which is effectively the same as doing it themself.
      • Missouri Foundation for Health is kind of a bank shot example because technically it is a (c)(4) but because of a court settlement agreement going back to the tobacco litigation, it operates under private foundation rules. It commissioned a series of studiesand came out strongly in favor of Medicaid expansion in MO as a part of it. This all snugly fits in the exception.
      • Last example comes from DC and the Bainum Family Foundation. It commissioned a reportto document the shortage of high quality subsidized child care for those under 3 in lower income communities of Wards 7 and 8 of DC. The report was the basis of an entire campaign to advocate for a change in laws before the DC Council (which was successful!).
    • Requests for Technical Assistance
      • Providing information to legislative committees when invited is not lobbying
      • Must be invited in writing
      • Must be invited by the chair of the committee, subcommittee, or body
    • Self-Defense
      • Narrow exception – if there's a pending bill that would impact the rights or responsibilities of private foundations, lobbying for or against the bill doesn't count.
    • Examinations and Discussions of Broad Social, Economic and Similar Problems
      • Taking a stance on the general subject of legislation, without taking a stance on any legislation itself is not lobbying
      • This is a bit of a tightrope (remember our "it's a trap!" example)

Resources

Lobbying Defined for Private Foundations

Private Foundations May Advocate

Be Bold and Advocate Rules for Foundations Engaging in Advocacy in TX

Philanthropy Advocacy Playbook

On this episode we dive into ways your organization can weigh in on government budgets and legislation, bringing needed change to your communities. Whether you focus on housing, health care, the environment, education, public safety, civil rights, or virtually any nonprofit activity is impacted by the government budget. There are many opportunities for nonprofits to educate policymakers and the public alike about the critical impact government funding plays in people's lives. Today, we'll discuss how nonprofits can influence the budget process and more.

Attorneys for the show

Victor Rivera

Leslie Barnes

Tim Mooney

• Nonprofits Can Influence the Budget Process

• • Government budgets counts as specific legislation

• • Most but not all budget work counts as lobbying

• • Public charities can lobby

• • 501(c)(4)s, 501(c)(5), and 501(c)(6) do not have a federal lobbying limit

• • Private foundations cannot earmark funds for lobbying but can fund grantees that lobby and engage in non-lobbying advocacy

• The budget process starts

• • President presents budget in February (see federal timeline in resources)

• • Each state's budget process is different

• • Ex – TX legislature meets only every 2 years, working on state budget in 2023

• • Bills go through a committee process, opportunity for public input

• • Before that, there is opportunity to influence the draft budget

• • Opportunity to influence the budget at many stages

• • Influencing the administrative agencies on what to include in their budget request may be lobbying – do it, track it!

• • Working to implement how money is allocated after budget is enacted is generally NOT lobbying for IRS purposes. Beware state lobbying registration and reporting

• Ways to impact the budget process

• • Attend public hearings – inform public about when public hearings occur

• • Direct Lobbying

• • Grassroots Lobbying

• • Educating the public using Nonpartisan Analysis Study and Research

• • Educating the public – no call to action, not lobbying

• Lobbying disclosure

• • Fed, States and some municipalities regulate when nonprofits and employees must register as a lobbyist

• • Bolder Advocacy has resources on state lobbying registration/reporting

• • Determine state lobbying threshold for nonprofit and employees

• • Track and report activities to state regulators

Resources

Nonprofits Can Influence the Budget Process

Administrative Advocacy

State Law Resources: Practical Guidance Series – What Nonprofits Need to Know about Lobbying in Your State

Federal Budget Timeline

On this episode, we once again turn to your questions on nonprofit advocacy with another edition of Ask Us Anything. We'll cover topics like employing newly elected officials, how small c3s can impact legislative policies, accepting donations, and tracking lobbying.

Attorneys for this Podcast

Victor Rivera

Leslie Barnes

Quyen Tu

Questions:

• We received this call to our hotline asking whether a c3 nonprofit needed to let their communications director go after the director won their election to city council in November.

• • Don't fire your comms director just because they had a successful election campaign!

• • There is no specific IRS rule requiring you to fire your comms director.

• • Know which "hat" you're wearing, keep resources separate, conflicts of interest, ethics.

• We received this email from a 501(c)(3) public charity in Mississippi with a volunteer staff. They wrote "We are a small, but growing nonprofit organization run entirely by volunteers and we partner with larger organizations around issues of education and children. There will be a bill introduced to ban corporal punishment, but our funding prohibits us from lobbying. What type of advocacy can we do around the campaign to eliminate corporal punishment?"

• • Non-lobbying advocacy: NPARS, requests for technical assistance.

• • The 501(h) election

• • Raise revenue for lobbying

• • Review state lobbying guides for state registration thresholds

• Next, we were asked if a 501(c)(3) public charity could accept donations stemming from the sale of cannabis, akin to what we've done with the tobacco taxes?

• • Very, very unclear.

• • While cannabis is still illegal at the federal level, some/many states have decriminalized this.

• • Funding sources for cannabis differ.

• • May use this opportunity to lobby Congress to change the law.

• • Seek legal advice on this issue before proceeding.

• Last question: we typically get questions that deal with how to track staff time spent lobbying. The good news is that the IRS does not require a particular time-keeping system for nonprofits.

• • Need a reasonable system in place and one that isn't too burdensome on the organization.

• • Your organization should keep track of staff time, direct costs, and overhead expenses.

• • Easier to track and report lobbying expenses on Form 990 every year.

• • Our keeping track guide has a ton of information on how to ensure compliance with the IRS. We also have sample timesheets available on our website, bolderadvocacy.org.

• • It's always good to have a designated recordkeeper for the organization.

Resources

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

Cost Sharing Agreement between 501(c)(3) and 501(c)(4)

Keeping Track: A Guide to Recordkeeping for Advocacy Organizations

What is Lobbying Under the 501(h) Election?

Sample Timesheets

State Practical Guidance Resources

On this episode, we'll discuss how your organization can prepare to maximize your advocacy and impact in 2023. With several states gearing up for new legislative sessions and the 118th United States Congress about to head to work, the time is ripe for ensuring that your organization is ready to boldly advocate on behalf of the communities and causes you care about. That's why today we present to you the Top 10 things your public charity can do now to get ready for 2023.

Link -

Our attorneys for this episode

Tim Mooney

Natalie Ossenfort

Quyen Tu

1. Calculate Your Lobbying Limit

• If your organization has made the 501(h) election, your total lobbying limit is based on your organization's annual exempt purpose expenditures.
• You can use our lobbying calculator to estimate how much your organization can spend during your fiscal year on lobbying activities.
• By understanding how much you are allowed to spend on lobbying, you can more effectively prepare for upcoming legislative sessions.

2. If you haven't done so already, consider making the 501(h) election.

• Most public charities have the option to maximize their lobbying limits by making the 501(h) election.
• Organizations that do can easily calculate their lobbying limits and, in some instances, allocate up to 20% of their budgets to lobbying activities.
• If you don't, however, your lobbying limits are based on the somewhat vague and confusing "insubstantial part test", which limits lobbying to around 3-5% of an organization's overall activities each year.

3. Brush Up on State Lobbying Disclosure Laws in preparation for upcoming legislative sessions – We have a Lobbying Practical Guidance series that will help!

• Created in partnership with the Democracy Capacity Project, this series will help you and your nonprofit determine how state lobbying disclosure rules may impact your policy work

• We currently have guides published for 19 states, but several more are coming soon!

4. Remember that lobbying at the Federal level (to Congress or Executive branch officials) may implicate the Lobbying Disclosure Act.

• The triggers for lobbyist registration under the LDA are relatively high, so many groups won't need to register and report as lobbyists.

5. Create a Policy Agenda (see ROTG #13 – aka the previous episode)

6. Assess whether you need a 501(c)(4).

• Running up against your public charity's lobbying limits? Wanting to take a stand on candidates running for public office?
• If so, it might be time to consider forming an affiliated 501(c)(4) (aka social welfare organization).
• Our publication entitled "The Connection" will help get you started.

7. Convene or join a coalition to amplify your impact.

• Coalitions can take several forms (i.e. informal partnerships, fiscal sponsorship arrangements, independent 501(c)(3)s or 501(c)(4)s).

• Just remember that the rules that apply to your organization's tax-exempt status follow you in to coalition work. So, for example, if you happen to work for a 501(c)(3), you'll need to make sure that any coalition work you engage in is conducted in a nonpartisan manner (not designed to support or oppose candidates for public office).
• Use our coalition checklist to get started today.

8. Audit your recordkeeping system

• Proper recordkeeping is essential to meeting your advocacy goals. It can help your organization

• comply with filing obligations (e.g. IRS 990 / state lobbying reporting requirements),

• Informing strategic planning / stay focused on your mission, and
• obtain funding (by building trust with your funders and boosting your ability to provide detailed budgets and grant reports)

• For sample timesheets and other recordkeeping tips, check out BA's Keeping Track guide.

9. Connect with your funders, supporters, and champions

10. Make plans to celebrate the victories, large and small, along the way! All no's eventually lead to a yes said Tim.

Resources

• The Connection
• Lobbying Calculator
• Coalition Checklist
• Keeping Track
• Practial Guidance Lobbying Series