Rules of the Game: The Bolder Advocacy Podcast

On this episode we revisit the ways nonprofits can create a policy agenda to advance their missions. Now that the election is over, we have to begin looking forward to what's ahead and what we want our local, state, and federal policymakers to consider in the coming year. Originally podcast December 16, 2020.

Our attorneys this episode

• Jen Powis
• Shyaam Subramanian
• Natalie Ossenfort

Resources

• Transition Team Advocacy
• Amplify Your Voice: Lobbying Do's and Don'ts
• Bolder Advocacy's TA hotline: 866-NP-LOBBY
• Email us at [email protected]
• Our website is bolderadvocacy.org

Tis the season for giving thanks, and we here at the Rules of the Game podcast are immensely grateful for the amazing work done by nonprofits across the country to advocate on behalf of ballot measures during the midterm elections. On this episode, we'll highlight several noteworthy wins. From protecting reproductive rights to expanding education access for Dreamers, it was truly a remarkable year for rallying public support and seizing policy wins at the ballot box.

Our attorneys for this episode

Leslie Barnes

Natalie Ossenfort

Tim Mooney

Shownotes

Ballot Measures: A Quick Review of the Rules

• Yes, 501(c)(3) public charities CAN support / oppose ballot measures (including ballot initiatives, bond proposals, constitutional amendments, etc.)
  • Public charities can lobby (within their lobbying limits)
  • Advocacy for or against a measure = lobbying
    • The public is a legislator in the ballot measure context
    • Under the insubstantial part test, ballot measure advocacy = lobbying.
    • Using the 501(h) election, ballot measure advocacy = DIRECT lobbying.
  • Public charities should refrain from supporting / opposing candidates that may appear on the same ballot (remain nonpartisan)
• Different rules for private foundations, which should NOT engage in ballot measure advocacy due to prohibitive excise tax, but can take advantage of lobbying exceptions and use general support grants and specific project grant safe-harbors to support the work of their grantees
• 501(c)(4)s can engage in nonpartisan as well as partisan ballot measure work, but partisan work should remain a secondary activity of the organization
• Regardless of what type of tax-exempt org you may work for, also keep in mind state / local law, which may require reporting of ballot measure activities and expenditures

Big Wins!

• Arizona Proposition 308
  • Championed by Mi Familia Vota, Unidos US, Arizona Community Foundation, and more!
  • Grants undocumented Arizona high school graduates the ability to obtain in-state college tuition prices and gets rid of Prop 300, which passed with 71% of vote in 2006 and banned state benefits for undocumented persons

• Measure 26-228 in Portland, Oregon
  • Championed by Coalition of Communities of Color (Unite Oregon, Latino Network, Muslim Educational Trust, Imagine Black, NAYA Family Center, Pacific Islander & Asian Family Center, LWV Portland, etc.
  • Expands City Council - Creates four City Council districts with three councilors each and ends City Councilmembers managing day-to-day city services and operations.

• Emancipation on the Ballot
  • 5 states (OR, TN, AL, LA, and VT) considered proposed state constitutional amendments asking voters whether to abolish slavery
  • Passed in 4 states. LA voters will try again with a revised ballot measure.
  • NAACP Legal Defense and Education Fund explains why slavery is still legal in over a dozen states and permitted under the US constitution
    • Why Slavery is Still Legal in America – And How Voters Can Take Action (naacpldf.org)
    • Congress considering amendment to 13th Amendment
  • Alabama Citizens for Constitutional Reform worked to pass AL's new constitution that removed slavery as well as multiple racist provisions
  • Nonprofits will continue to play vital role in implementing these laws

• Michigan Proposal 3 (aka Reproductive Freedom for All Proposal)
  • Establishes new independent right to reproductive freedom in state constitution and invalidates conflicting state laws
  • Allows state to regulate abortion after fetal viability, but not if abortion is necessary for patient's physical or mental health
  • Supported by Planned Parenthood Advocates of Michigan, ACLU of Michigan, Michigan Voices, and others
  • Similar wins in California and Vermont. VT's Proposal 5 won with 72% of the vote! Abortion rights now enshrined in VT constitution. It was supported by groups like ACLU of VT, LWV VT, Alliance for a Better VT and more.

• Michigan Proposal 2 (Expanding Voting Access)
  • Championed by ACLU of Michigan, NAACP Michigan State Conference, and League of Women Voters of Michigan
  • Changes voting policies in Michigan, including requiring nine days of early voting, authorizing absentee ballot drop boxes, and allowing voters without photo ID to sign an affidavit verifying their identity.

• DC Initiative 82
  • Championed by DC Committee to Build a Better Restaurant Industry, National Center for Lesbian Rights, DC for Democracy, National Employment Law Project
  • Once again the voters are eliminating the sub-minimum tipped wage, and all servers and bartenders that were under this system will be moved into full minimum wage over the course of the next few years.

Resources

• • Ballot Measures and Public Charities: Yes, You Can Influence that Vote
  • Ballot Measures and Recalls: Basic Rules for 501(c)(3) Public Charities, 501(c)(4)s, and Unions
  • Being a Player: A Guide to IRS Lobbying Regulations for Advocacy Charities
  • Foundations and Ballot Measures
  • Bolder Advocacy's TA hotline: 866-NP-LOBBY
  • Email us at [email protected]
  • Our website is org

Following the 2022 midterm elections, nonprofits can work with newly elected officials on policies to advance their communities' missions and policy agendas. That transition advocacy is the focus for most of the country, but in Georgia voters have 3 more weeks of non-stop political ads, commercials, texts and direct mail to look forward to thanks to a December 6th runoff election for US Senate. On this episode we discuss the special rules for the Georgia runoff, and what the rest of the country's nonprofits can do in the transition period to get a jump on 2023.

Our attorneys for this episode

Leslie Barnes

Natalie Ossenfort

Tim Mooney

Show Notes

Georgia's Runoff, Other States' Recounts, & Contests

How can nonprofits navigate the post-election space, in states where vote totals are not yet finalized and in Georgia, where voters are facing a run off election in under one month? What can nonprofits do in these states?

• GA still has candidates
• GA's new election law
  • SB202 made some key changes
  • Earlier vote (Dec 6)
  • Cannot register new voters
  • Shorter early voting period (5 days)
• Opportunities for (c)(3)s
• Opportunities for non-(c)(3)s
• Activities in your personal capacity
• Ballot curing
• Recounts & Contests

Transition Advocacy

• 501(c)(3) public charities can build relationships with newly elected officials and their staff to amplify the organization's mission and advance community's policy priorities
  • Congratulate or acknowledge those who won their elections
  • Introduce newly elected officials to your organization's mission / issues, remind them of campaign promises
  • Make budgetary or legislative requests (could be lobbying – IRS & state lobbying disclosure)
  • Recommend people for appointed boards and commissions
  • Take care not to take credit for victory or "flipping the state"
  • Can discuss how (c)(3)s registered "x" number of voters
  • Can discuss how (c)(3)s increased voter turnout
  • Identify likely allies
• 501(c)(3) public charities can lobby a limited amount.
• Lobbying is defined as activities designed to influence legislation, for IRS purposes.
• 501(c)(4) social welfare groups can lobby an unlimited
• Private foundations cannot lobby without incurring a steep excise tax, but they can engage in the following non-lobbying activities:
  • Congratulate newly elected officials
  • Hold elected officials accountable
  • Schedule meet-n-greets
  • Share funding interest
  • Share foundation's mission
  • Build relationships
  • Influence executive orders, rules, regulations (not IRS lobbying, but could trigger state lobbying disclosure)
  • Join us for future episodes of funding advocacy AND direct advocacy

Advocating on Executive Orders

• Don't involve legislative action, therefore NOT IRS lobbying (could be lobbying under state disclosure laws)
• Safe for 501(c)(3) public charities and private foundation alike
  • Whitmer's establishment of the Michigan's Parent's Council as an advisory body to the state Department of Education
  • Biden's directives to HHS to help lower prescription drug costs

Resources

• Can We Really Say That: Post Election Advocacy for 501(c)(3) Organizations.
• Can We Say That?- Georgia Runoff 2022 Edition
• Transition Team Advocacy
• Private Foundations May Advocate
• Bolder Advocacy's TA hotline: 866-NP-LOBBY
• Email us at [email protected]

On this edition of the pod, we conclude our three-part series on nonprofit election advocacy and focus on post-election advocacy activities. After election day there are a wide array of opportunities to protect voters and the election itself. Whether it's working with state and local officials to ensure that all ballots are counted or litigating potential violations of state or federal election-related laws, nonprofits have a big role to play in the days following November 8, 2022.

Our attorneys for this episode

Leslie Barnes

Tim Mooney

Natalie Ossenfort

Shownotes

• Reminder: 501(c)(3)s cannot support or oppose candidates
• Nonpartisan motivations to advocate in contested elections
  • Proper administration of the election under the law
  • Ensuring all legal votes are counted
  • Protecting the will of the electorate/upholding democratic principles
  • No IRS guidance on this, but it's consistent with approved pre-election and election days advocacy
• Example: Litigation
  • Brennan Center's work in 2000
    • Amicus brief in Bush v. Gore
    • Partisan and nonpartisan interests can legally coexist
    • While the Brennan Center argued for the same thing as the Gore campaign, its work was still nonpartisan because the arguments were centered on voters' fundamental constitutional rights and not the partisan interests of the campaign.
  • Other examples
    • 2020 example
    • Common Cause's work in the Georgia gubernatorial election in 2018
    • Michigan Welfare Rights Organization v. Donald Trump in 2020 - filed by NAACP Legal Defense and Education Fund (c3) and NAACP (c4) for violating the Voting Rights Act and the Ku Klux Klan Act
  • What kinds of advocacy are available to nonprofits following election day?
    • Administrative advocacy, including advocacy around secretary of state certifications of the winners, and the process of counting of ballot (depending on state, may qualify as lobbying that triggers registration)
    • Ballot chasing and curing. If a voter submits a ballot that fails to meet requirements under state law (i.e. stray marks, wrong envelopes, their signature doesn't match the one on file, etc.), there may be a role that nonprofits can play to help those voters fix the problem within the time limits set by state law (check out practical guidance voter assistance series for additional details about state laws related to ballot chasing and curing activities) - educate voters on how to track their own ballots
    • Protests and other public gatherings, demanding proper administration of all ballot counts and fidelity to election procedures under the law.
    • Direct advocacy to members of legislative bodies or governors when they are making decisions that are critical to the disposition of an election. This includes lobbying for emergency legislation to keep polls open or allow absentee voting to be extended, calls for oversight, in the event of natural disaster, following Ian and Fiona. Superstorm Sandy Impacted the 2012 Presidential election.
    • 501(c)(3)s can do any of these things for nonpartisan motivations
    • 501(c)(4)s and other nonprofits can do these things with nonpartisan motivations, or with partisan reasons (tax law limits how much). Election laws dictate the rest.
  • 501(c)(3)s can work in coalitions with other nonprofits that are doing nonpartisan motivated work
  • Each state will have different deadlines for election certification – remember that calls to "stop the count" or anything else to hinder the proper administration of the vote prior to that date are anti-democratic acts and nonprofits can take a role in defending against these cynical tactics.

Resources

• What Nonprofits Can Do in a Contested Election
• The Connection
• Accountability Advocacy for 501(c)(3)s
• 501(c)(3) Contact with Parties and Candidates Concerning Election Protection Efforts
• Practical Guidance: Voter Assistance and Lobbying Series
• Bolder Advocacy's technical assistance: 866-NP-LOBBY or email us at [email protected]

On this episode, we tackle election days advocacy. We intentionally say "days" since many states offer vote by mail or early in-person voting well before election day. This means that voting doesn't just happen on election day itself, even though the election is on November 8th this year. We talked about the role nonprofits can play leading up to this period a few weeks ago — on this episode we talk about their big role in helping people vote during this "election days" period.

Attorneys for this Episode

• Leslie Barnes
• Tim Mooney
• Victor Rivera

Why should 501(c)(3)s do this work?

• 501(c)(3)s are trusted messengers.
• Educate your community and constituents about their different voting options.

Rules for nonpartisan voter engagement

• No supporting/opposing candidates
• Other rules will vary by states and sometimes even counties

Types of nonpartisan voter engagement on "voting days"

• Voter education
  • What to expect going to the polls
  • Polling locations
  • Proper document/ID required for voting
  • Vote by mail education or absentee voting
  • Setting expectations for results
• GOTV
  • Facilitate voting by offering rides to polls (ex. Souls to the Polls)
  • But check state laws.
  • Absentee voting, line warming, what can be worn inside polling places
  • providing childcare or identify childcare services
  • Translation of voting materials for non-English readers.
  • Social media messaging
  • Text banking, etc. etc.
• Election protection
  • Provisional ballots
  • Be a poll worker, poll monitor or staff voter protection hotlines in your community.
  • 866-OUR-VOTE is probably the most well-known election hotline in the NP community.
  • Educate on misinformation and voter intimidation.
• Litigation
  • Example: Texas Civil Rights Project. Stopped voter "purges" that would have affected many naturalized citizens. https://www.bolderadvocacy.org/story/legal-advocacy-in-action-texas-civil-rights-project/
• Mobilize public support for safe and fair election

Private Foundations

• Private Foundations can fund all nonpartisan efforts (except you cannot earmark funds for voter registration drives without complying with additional rules)
  • election protection litigation
  • poll monitoring
  • rides to the polls
  • supporting poll workers for everything they need on election days.
  • voter education messaging

Partisan work

• 501(c)(4)s-can do everything a c3 can do + they could do one of these activities in a partisan manner.

Resources

• Nonprofit Voter Assistance Guides – 19 states
• Appendix B of Rules of the Game: Permissible Nonpartisan 501(c)(3) and Partisan Campaign Contact on Voter Engagement and Protection Efforts
• Voter Protection by 501(c)(3)s
• Voter Registration Deadlines by State (Vote.org)
• State Compendium of Election Worker Laws and Statutes (U.S. Election Assistance Commission)
• Do you want to be a poll worker? Learn more here: https://www.powerthepolls.org/
• Election Protection https://866ourvote.org/

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 assisting voters 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

On this episode, we discuss the unprecedented election-year challenges we face and the ways all nonprofits can help ensure a safe election. As trusted messengers, nonprofits can explain voting options and deadlines; encourage absentee voting and a new generation of poll workers; conduct election protection programs; support and join litigation and even facilitate voting and promote increased voter turnout.

This is a repodcast of the first part of our three-part series from 2020.

Our attorneys for this episode

Leslie Barnes

Tim Mooney

Quyen Tu

Shownotes

• Election-year challenges

• Dangers for in-person voting
• Massive poll worker shortage
• Monumental increase in voting by mail

• Predictions for contested elections/delayed results
• Defunding the United States Postal Service
• Interference in the election by foreign and domestic actors

• Reminder - 501(c)(3) organizations must remain nonpartisan
• When We All Vote Video – Voter Registration Drives

• https://youtu.be/XNt-9v3HY30s
• Created by a c3, When We all Vote
• Shared by a c3, NAACP Legal Defense and Education Fund
• Nonpartisan – no support or opposition for any candidate for elected office

• Explains how schools can create and promote a voter registration drive
• Explains how volunteers can share news of newly registered voters on social media
• Safe for community foundations and c4s too!
• Special rules exist for private foundations
• Can't buy votes. Don't exchange anything of value for someone completing a voter registration form or voting.

• Can spend money to facilitate voting – Examples
• Must also follow state law regarding voter registration and drives
• IRS permits targeting voter outreach for nonpartisan reasons

• Fair Fight Action Video – Vote By Mail/Voter Education

• https://www.youtube.com/watch?v=HFl6AYki1B8

• Encourages Georgians to vote by mail to shorten lines for those who must vote in person and reduce risk for all
• Fair Fight Action is a 501(c)(4) and could engage in partisan activity as secondary activity
• This video is a nonpartisan example of voter outreach/education – primary activity
• Safe for c3s to share as well!

• Houston Justice Coalition Post

• Safe for c3s and c4s to share government messages
• Nonprofits can volunteer their space for voting/polling centers

• Best practices for 501(c)(3)s

• Nothing can support or oppose candidates
• Avoid mixing issue advocacy with voter registration/GOTV/voter education
• No candidate pledges
• Any interaction with candidates? Offer the same info to others running

• Best practices for 501(c)(4)s

• Can support or oppose candidates – track efforts – secondary activity
• Be aware of state laws
• Don't coordinate efforts with federal (and usually) state candidates
• Report independent efforts under campaign finance laws

Resources

Bolder Advocacy Election Activities Page

Want to Conduct or Fund a Voter Registration Drive

Election Protection Efforts Factsheet

Election Year Activities for 501(c)(4)s

How 501(c)(4)s Can Hold Elected Officials Accountable

Partisan Electoral Activity: What is it and What Can You Do?

Non Bolder Advocacy resources

Guide on how to do a school or community voter registration drive: https://www.headcount.org/wp-content/uploads/2018/03/Booklet_Final-1.pdf

For college student looking for information on voting? Check: https://andrewgoodman.org/myvoteeverywhere/

We talk a lot about advocacy, but what's advocacy without some wins? On this episode, we highlight some of the victories nonprofit advocates have achieved at the state and federal level.

Attorneys for this episode

• Nona Randois
• Victor Rivera
• Tim Mooney

California

• This summer California made history as the first state to agree to fully remove exclusions for Medi-Cal health coverage (California's version of Medicaid) for all who are income eligible, regardless of immigration status.
• This year's budget removed the final exclusions for that population, who will be eligible to access health coverage through Medi-Cal starting by January, 2024.
• California Immigrant Policy Center and Health Access California formed the #Health4All coalition in 2013. By 2022, the coalition consisted of 180 state and national organizations committed to health and racial justice.
• Bolder Advocacy has supported California Immigrant Policy Center (CIPC), Asian Americans Advancing Justice affiliates, Inland Coalition for Immigrant Justice, Public Health Institute, and many other members of the #Health4All coalition by providing training and technical assistance throughout this effort.
• Comment by Sarah Dar, the Director of Health and Public Benefits Policy at CIPC

Texas

• PN3
  • A pre-natal to 3 collaborative whose mission statement is that all Texas children are born healthy and have equitable access to health and early learning support in their homes and communities.
  • They were able to advocate for an expansion to post-partum Medicaid coverage for Texas moms during the last Texas legislative session.
  • During the most recent legislative session, the Texas House of Representatives overwhelmingly approved a bill that offered 12 months of coverage. However, the Texas Senate amended the legislation to six months instead. While the application is still in review, the work done by groups like PN3 has already made a significant impact.
• Burn Pits 360 (https://www.texastribune.org/2022/08/08/texas-burn-pit-bill/)
  • PACT Act - expanding benefits for veterans who have been exposed to toxic burn pits and providing better coverage for veterans overall.
  • With the passage of this bill, veterans who are diagnosed with any of the conditions listed in the legislation will be deemed automatically eligible for health coverage.

Federal and West Virginia

• The Inflation Reduction Act (IRA) recently passed and was signed by President Biden
• Formerly known as Build Back Better, many nonpriofits advocated for passage on all facets including tax reform, climate change and inflation relief
• "Kayaktivists" met Sen. Manchin on the Potomac river at his boat/yacht
• Manchin heard from representatives of community organizations across the state (including very rural southern WV)
• Fast forward 11 months and "will he or won't he" Sen. Manchin was a critical element in passage of IRA – these WV advocates were a big piece of that

Resources

• California Immigrant Policy Center
• Health Access California
• Asian Americans Advancing Justice – Southern California
• Advancing Justice – Asian Law Caucus
• Inland Coalition for Immigrant Justice
• Public Health Institute

On this edition, we turn the mics on ourselves and feature two of our summer interns... what is it like to intern at an advocacy nonprofit and how do they contribute to the work we do at Alliance for Justice?

Featured on this episode

Jasmin Azizi

Dylan Abrokwa-Jassor

Host – Tim Mooney

Executive Producer – Jairo Gomez

Questions asked

Tell us briefly about yourself. What are you currently studying? What are your career goals and why are you interested in that kind of work?

Why did you decide to intern with AFJ? Why do you think this work is important?

What was your understanding (or did you have any experience with this kind of work before) of this kind of work before interning with us?

How would you explain your team within AFJ does?

You do a lot of research in your role. Do you have any tips on being an efficient researcher? Have you noticed any improvement in that regard due to your time interning here?

Was there anything that surprised you or that you didn't expect about interning for an advocacy nonprofit / AFJ?

What has been your proudest moment(s) interning with us?

How do you think your experiences in this internship will benefit you long term in terms of your career or even in your personal life?

Anything you would like our listeners or prospective interns at a nonprofit know about after your experience this summer?

We spend a lot of time on the pod talking about what public charities can do around election season, but let's spend some time talking to the funders out there. If you're making grants to public charities, you play a big role in your communities... and as it turns out, you can also join them in many of the same nonpartisan activities around elections. On this episode, we're covering the types of voter engagement and funding opportunities available to private and public foundations.

Nonpartisan Candidate Education

• Great way to make sure the candidates understand the issues of importance to your foundation and its work
• Candidate education must be done by both private and public foundations in a nonpartisan way.
• Being nonpartisan means no support or opposition of candidates (facts and circumstances test)
• For candidate education
  • Offer educational materials to all candidates in a race
  • Make efforts to ensure that candidates are provided with equal information
• If making a legislative ask in your educational materials, it could count as lobbying if person running for office is incumbent legislator
• That's a no for private foundations, but public foundations are free to engage in lobbying in limited amounts

Candidate Debates / Forums

• Public and Private foundations can get the candidate together so that they can relay information about their policy positions to voters
• Again, facts and circumstances matter... keep it nonpartisan!
  • Invite all viable candidates
  • Impartial moderator / unbiased audience
  • Fair rules with open-ended questions covering a broad range of issues
  • Provide equal opportunities for candidates to respond
• What happens if all candidates decide not to participate?
  • The more that do agree to participate, the better.... really comes down to a facts and circumstances analysis

Election Advocacy Funding

• Provide general operating support to your public charity grantees
  • Can be used for any permissible 501(c)(3) purpose
  • By providing grantees with flexibility to spend funds how they choose, you give them the option to use your funding to engage in nonpartisan election season activities
• Provide grants to fund specific, nonpartisan, election season advocacy programs
  • Just remember private foundations should avoid earmarking grant funds for lobbying
  • In addition, there are special rules related to private foundation voter registration grants. (Section 4945(f) of tax code)
  • Does not apply to other GOTV activities

Resources

Voter Registration Rules for Private Foundations

Debating the Future: Foundations Can Educate the Community Through Candidate Debates

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