Rules of the Game: The Bolder Advocacy Podcast

Election season provides a great opportunity for nonprofits and foundations to elevate their issues with voters and candidates. On this episode we're going to look at ways a variety of tax-exempt entities can engage in outreach to candidates and engage with political parties. We'll look at ways nonprofits can attend political party conventions, help shape candidate and party platforms, educate candidates on community issues, respond to candidate questions, and more.

Attorneys for this episode

• Natalie Roetzel Ossenfort
• Leslie Barnes
• Victor Rivera Labiosa

Show Notes

• 501(c)(3) public charities can educate candidates on community issues. They can engage with candidates during in-person visits, phone calls, issue briefings, etc.

• Just remember, public charities must remain nonpartisan in their outreach by trying to ensure that each candidate is provided with identical or equivalent communications.
• Also note that if the candidate is an incumbent legislator, communication with them could be lobbying if you express a view on specific legislation.

• Not only can 501(c)(3) public charities proactively reach out to candidates to share information about their missions and research, but they can also respond to candidates' questions. But there are a few things to keep in mind.

• The 501(c)(3) should treat candidates as they would other members of the public. For example, if a candidate calls for any data, you can point that candidate to your website just like you would with anyone else. The important thing is that you are not compiling data just for the candidate or their campaign and that you're not conducting new research because a candidate requests it. This could be considered a candidate contribution.

• Take care not to serve as a policy strategist or research arm of the campaign. Remember, the 501(c)(3) should be careful about allowing its name to be used by the candidate's campaign.

• We recommend as a best practice to designate an experienced staff member to talk with candidates.

• 501(c)(3) public charities can shape candidate and political party platforms and encourage candidates and political parties to talk about the issues.

• Take care not to praise or criticize a candidate that adopts your organization's policy issues.
• To keep things nonpartisan, include a disclaimer in oral and written testimony that information is being provided for educational purposes only.

• 501(c)(4)s can engage in some partisan activity (support or opposition of candidates), but should be aware of FEC and other state laws prohibiting corporate campaign contributions

• (c)(4)s cannot coordinate strategy with federal candidates.
• (c)(4)s may be able to work with state and local candidates in about half of all states by following state campaign finance laws.
• Not all outreach and engagement amounts to a contribution – keeping it nonpartisan as part of your primary purpose

Resources

• Nonpartisan Candidate Education: How 501(c)(3)s Can Talk to Candidates During an Election Year — Bolder Advocacy Factsheet
• Hosting Candidates at Charitable Events: Ensuring Candidate Appearances Remain Nonpartisan — Bolder Advocacy (factsheet)
• Rules of the Game: A Guide to Election-Related Activities for 501(c)(3) Organizations
• The Connection

On this episode, we revisit a very specific type of lobbying that doesn't necessarily seem like lobbying in the first place. Ballot measures can range from local bonds to state constitutional amendments, and everything in between. What can nonprofits do to support or oppose them, and how do they comply with state and federal law?

Our attorneys for this episode

• Tim Mooney
• Natalie Ossenfort
• Quyen Tu

What are Ballot Measures?

• Called different things in different states and localities

• • Bond
  • Constitutional Amendments
  • Referenda
  • Ballot questions / initiatives
  • Propositions
  • Any policy matter put to a vote of the general public

• There are no federal ballot measures, but federal law has one major thing to say aboutmeasures for 501(c)(3)s
• State and sometimes local laws cover campaign finance and reporting requirements

Can nonprofits take a stance?

• No. End of episode. (just kidding!)
• Most can. All 501(c)s that aren't charities or foundations can (generally) do an unlimited amount of ballot measure advocacy, but must follow state and local laws for reporting their work
• Public charities can take a stance, but ballot measures are lobbying (which is why this episode is in the lobbying series!). From there, they also have to follow state and local laws for reporting their work

• Private foundations cannot take a stance on ballot measures (again...lobbying) without being hit with a big excise tax

Wait, lobbying? Tell me more.

• Boil it down? Voters are a giant legislative body
• Direct lobbying, not grassroots – and that's good because charities can do more direct lobbying

• Doesn't violate the prohibition on electioneering to support or oppose measures because they are not related to candidates

• Be careful to make sure your org's advocacy isn't seen as/tied to a candidate's position on theballot measures

• Clock starts ticking when petitions go out to qualify for the ballot or (probably) when you're lobbying legislative bodies when they are determining whether to refer an item to the voters
• Count all prep work, staff time, communications costs, etc.
• You non-c3s? Tax law doesn't restrict lobbying, and this counts toward primary purpose activity... so load up on your GOTV and voter reg work on ballot measures and (strategy time!) it can offset candidate work you do.

State laws...

Every state is different, starting with the fact some states don't have ballot measures at all. Even states without statewide ballot measures like NY have local bond measures though.

Any state or locality with ballot measures has some kind of registration and reporting laws

We have state law resources for your state! Examples:

Texas

Corporations (including nonprofits) can support or oppose ballot measures in Texas.

• Texas Election Code defines a political committee as two or more persons acting in concert with a principal purpose of accepting political contributions or making political expenditures. Since the definition of "persons" includes nonprofit corporations and expenditures and contributionsinclude those made in connection with a measure, it is possible for nonprofits to trigger PAC registration and reporting in Texas even if they don't do any candidate-related work.
• TRANSLATION: if a group of nonprofits comes together to raise funds for the support or opposition of a measure, they may need to register and report as a PAC.
• It is also possible that if a nonprofit acts on its own to impact a ballot measure, it could trigger direct campaign expenditure (aka independent expenditure) reporting even if it doesn't coordinate its work with other organizations or individuals. DCE reporting, as it's sometimes referred to, kicks in when more than $100 is spent to support or oppose a measure.
• Of course, there are other scenarios as well that might not require state-level reporting in the ballot measure context in Texas (e.g. nonprofit contributions to a ballot measure only PAC), so feel free to reach out to our TX team if you have any questions about when and what you have to report when you engage in ballot measure advocacy.

Oregon

• Trivia: Oregon is one of the first states to adopt ballot measures... started them in 1902 (just behind SD and UT)
• Five forms: state statutes (legislature or citizen referred), constitutional amendments (legislature or citizen referred), and veto referenda.
• If your nonprofit's purpose is to support/oppose a ballot measures you have to register as a political committee
• No contribution limits (those are unconstitutional per SCOTUS)

• Real time online reporting (ORESTAR!!!!)
• 3 reporting periods
• Contributions over $100 - the name/address of the donor disclosed

California

• These rules are about transparency and tracking money in CA elections.
• Most important: if you engage in certain fundraising activities or spending, you could become aballot measure committee and not even know it. That means your nonprofit would have filing and reporting obligations.
• There just isn't enough time to do justice to the CA BM rules on this show so if you're interestedin a whole show, please shoot us an email
• Ballot measures are treated as campaign activity
• Rules are designed so that when people or organizations accept or spend money for ballot measures, it gets reported by someone.

• When there is advocacy for a ballot measure, there will be a main ballot measure committee.Must report contributions of $100+, whether financial or in-kind, and expenditures. This usually works best as a separate entity from a 501(c)(3).
• Even if you are not the main ballot measure committee, there are ways NPs could trigger reporting with the FPPC

• receiving or spending money on ballot measure advocacy

• receive $2k+ in calendar year earmarked for ballot measures, you become a recipient committee. Recipient committees have to report their donors.
• Another way to become a recipient committee is to spend at least $50k in non-earmarked donated funds. At these higher levels of spending it gets more detailed so please check out our resources.

• Major Donor Committee: give $10k+ in calendar year to a recipient committee (staff time counts) but does not receive $ earmarked for ballot measures
• Independent Expenditure Committee: spends $1k+ in a calendar year on communications that expressly advocates for/against ballot measures and not made in coordination with a ballot measure committee

• Non reportable activities:

• 10% or less of staff time

• Paid staff time counts as an expenditure, or if it's coordinated with a ballot measure committee, a contribution. If you have staff spending more than 10% of their time in any calendar month on ballot measures, you need to consider that expenditure towards these thresholds.

• Newsletter
• Member communications
• Contracted services to the ballot measure committee
• Certain limited fundraising expenses
• Raising money for the ballot measure committee where the contributions go directly to theballot measure committee (funds do not pass through the org)

• You can ask people to donate to the main ballot measure committee and only your fundraising costs would count as a contribution toward these thresholds, some fundraising costs are even exempt from reporting.

Final thoughts?

• Often critically important advocacy
• Private foundations! You can and should support this work, even though you cannot directly advocate or fund it. How?

• • general support grants
  • specific project grants for non-lobbying portions of the work
  • educate the public about the ballot measure process
  • communications that qualify as nonpartisan analysis
  • communications that are neutral urging voters to study the issue

Resources

• Bolder Advocacy ballot measure toolkit
• Seize the Initiative
• Foundations and Ballot Measures

• California Campaign Finance and Ballot Measure Guide
• Ballot Measure Activities Exempt from California Disclosure Laws
• Initiating Policy Change: Circulating Ballot Initiatives in California
• Texas Campaign Finance and Ballot Measure Guide

Our team at AFJ is devastated but determined following the Supreme Court's ruling to overturn Roe v. Wade. The decision permits states to regulate our bodies and the most intimate of health care decisions – when to have a child, when to start a family. This horrific decision made possible by a rigging of rules & troubling power plays will irreparably harm our communities and our families. Make no mistake, this decision contains deeply flawed legal reasoning, designed to return and roll back rights for women, Black and Brown residents, and LGBTQ individuals. But since this isn't a legal analysis show, we wanted to focus on what comes next? What can nonprofits and the communities they serve do following the Dobbs v. Jackson Women's Health Organization decision? And most importantly... How can we fight back?

Attorneys for this episode

Natalie Ossenfort Leslie Barnes Tim Mooney

Shownotes

• Very little changed from the draft - for a great deep dive on the draft and opinion, be sure to listen to the excellent analysis at the Strict Scrutiny podcast
• State laws vary widely
• For nonprofits, nonprofits can and should engage in lobbying
• Ballot Measure Advocacy
  • Add/defend state constitutional privacy protections (MT, KS)
  • in states where there is public support for access to abortions, but the legislature may oppose abortions. (AZ, GA, MI, NC, NH, PA, WI) Abortion Battlefields in a Potentially Post-Roe Political World – Sabato's Crystal Ball (centerforpolitics.org)
• AFJ State Court resources
• Corporate advocacy
• 501(c)(4)s can target advocacy based on electoral outcomes.
• Justice Thomas' dissent highlights the issues to come

Resources

• Strict Scrutiny podcast – deep dive into the draft and final opinion in Dobbs v. Jackson Women's Health Organization Roe is dead. Now what? | Strict Scrutiny (simplecast.com)
• 5 Ways Nonprofits Can Respond to Dobbs v JWHO
• AFJ's Social Media Toolkit to respond to Dobbs v JWHO
• AFJ's State Court Justice Project – to research and tap into action on state Supreme Court races
• AFJ's Bolder Advocacy Podcast on Reproductive Rights Advocacy, recorded pre-Dobbs decision
• AFJ's Reproductive Rights Advocacy Toolkit for Nonprofits

It seems like every time we turn on the news, there are reports of a mass shooting somewhere in America. Sadly, names of US cities or communities have become associated with horrific tragedies: Uvalde, Buffalo, Las Vegas, Orlando, and Newtown. On this episode we talk about the role nonprofits have in combating gun violence.

Our hosts for this episode

• Ryann Alonso
• Natalie Ossenfort
• Quyen Tu

Shownotes

• Introducing Ryann Alonso - clarify what we mean by gun violence.
• Role for 501(c)(3) Public Charities
  • lobby for legislation to prevent gun violence
  • public education campaigns
  • fight disinformation and misinformation
• Role for 501(c)(4)s
  • all of the above, plus
  • work on getting candidates who support these efforts into office
  • 501(c)(4)s are social welfare organizations, and they can conduct an unlimited amount of lobbying
  • Can also support / oppose candidates as secondary activity
• Other activities
  • Coalitions
  • Corporate advocacy
  • Litigation

Resources

• State Firearm Laws
• Public Charities Can Lobby: Guidelines for 501(c)(3) Public Charities
• Election Checklist for 501(c)(3) Public Charities: Ensuring Election Year Advocacy Efforts Remain Nonpartisan
• Praising and Criticizing Incumbents: How 501(c)(3)s Can Hold Elected Officials Accountable for Official Actions
• Primer on Social Welfare Organizations: Using 501(c)(4) Organizations for Good
• Accountability Advocacy: How 501(c)(4)s Can Hold Elected Officials Accountable for Their Actions
• 501(c)(3) and 501(c)(4) Collaboration
• Bolder Advocacy's TA hotline: 866-NP-LOBBY
• Email us at [email protected]
• Our website is bolderadvocacy.org
• To read the whole poem quoted at the beginning of the podcast, please check out Clarissa Pinkola Estes' We Were Made for These Times.

The endgame of presidential elections used to be pretty straightforward. Congress plays a more-ceremonial-than-substantive role counting each state's certified electoral college delegates. The candidate who won more than 270 electoral votes officially wins and the new President gets sworn in on January 20th. But January 6, 2021 was, of course, very different. The false rhetoric claiming the historically well-run election was "stolen," led to the failed, but nonetheless deadly, January 6th insurrection. This month, a select committee of the House of Representatives is poised to lay out its findings on why this happened and who was behind the effort. On this episode, we talk about how nonprofits have a role to play in the investigation and the response to the revelations.

Our Attorneys for this Episode

Natalie Ossenfort, Tim Mooney, Quyen Tu

Shownotes

• The Select Committee explained
• Live Tweeting the hearings - responding to revelations, fact checking, etc

• Lobbying for specific responses

• Referral to DOJ for criminal investigation/prosecution
• New laws – amending Electoral Count Act, DC Statehood
• Disqualifying those that took part in the insurrection from running for federal office (14th Amendment plus new laws)

• Educating your constituencies (about what process is / what it isn't...)
• Electoral work (nonpartisan voter education, or partisan c4 efforts)

• (c)(3): praising and criticizing incumbents, best practices
• (c)(4): can be more electorally-focused

Resources

• Nonprofits' Role in January 6th Investigations and Response
• Praising & Criticizing Incumbents
• The Rules of the Game
• The Connection

On this episode, our third in our 2022 Election series, we thought we'd look at how nonprofits can further democracy through candidate debates. Since the pandemic, we've seen organizations get seriously creative in using technology to engage and keep us safe and socially distanced. If you're a long-time listener, you might recall that we also hosted an episode on Candidate Debates in 2020, back when we launched during the shutdown.

Link:

Attorneys for this episode

Leslie Barnes, Tim Mooney, Quyen Tu

Shownotes

• Public charities can convene candidate debates and forums
• The safe harbor for (c)(3)s hosting candidate debates

• Narrowing invitees based on nonpartisan criteria
• Publicize widely and invite public

• Neutral moderator
• Questions: broad and wide-ranging topics
• Equal treatment of each candidate
• No pledges
• Best practices

• Hosting a debate watch party and commenting on debates
• Fact checking is ok, supporting/opposing candidates is not

• Forums

• Facts & Circumstances analysis
• Federal university rule

• Candidate meet and greets

Resources

• Hosting Candidate Debates: Public Charities Can Educate the Community Through Candidate Debates
• Commenting on Candidates and Campaigns: How 501(c)(3)s Can Respond During an Election Year
• Responding During Election Season and Debates
• Sample 501(c)(3) Organizational Policy for Election Season
• Rev. Rul. 2007-41

On this special edition of the podcast, we respond to the release of the draft decision that suggests the Supreme Court is poised to overturn Roe v. Wade, removing the federal constitutional protection to choose an abortion. While Roe and the fundamental right to reproductive autonomy remains as we speak, nonprofits across the country are poised to act, should this draft become reality. Today we'll cover just some of the things you and your organization can do.

Our Attorneys for this Episode

• Leslie Barnes
• Tim Mooney
• Quyen Tu

Resources

Reproductive Rights, Health, and Justice Resource Guide

5 Ways Nonprofits Can Respond to Dobbs v. JWHO

Quick Overview

• The Dobbs opinion is only a draft – it is not law now. Roe is.
• People who seek an abortion now have a fundamental constitutional right to those medical services
• That said, should this draft become the majority opinion, Roe will be overturned ending federal protections, returning the question to the states
• Many states have ghost bans on the books, others have trigger laws that will end abortion rights when Roe is overturned (or the decision is issued). Other states have constitutional or other legal protections for the right to reproductive autonomy.
• It's likely that state courts and legislatures will become a major focus
• There are efforts to legalize abortion and ban it nationally in Congress.
• Some states are looking to do much more than ban abortion. The draft is breathtaking in its scope, putting marriage equality, the right to contraception, and much more at risk of losing protection under the US Constitution.

What nonprofits can do

• Organize and protest
• Provide services to people seeking reproductive healthcare
• Lobby Congress to pass the Women's Health Protection Act
• Lobby your state legislature to protect the right to choose
• Consider ballot measure options
• Accountability advocacy
• Support litigation to block bans
• Elections – 501(c)(4)s can make this an issue in their support/opposition of candidates
• Nonpartisan voter education – 501(c)(3)s need to tread carefully as we get closer to primaries and the general election. Reproductive health advocacy can continue, but be mindful that it cannot look like support or opposition to candidates or parties
• Individuals – you have more flexibility in what you can do. Protesting, organizing, donating, volunteering, voting for the candidates of your choice and more.

Bolder Advocacy is here to help your organization in its efforts.

Contact us: 866-NP-LOBBY or [email protected]

On this episode we'll continue our election series and answer the question: "Now that you've registered your community members to vote, how can you convince them to turn out at the polls?" Today, we'll dissect tax code rules for 501(c)(3)s and 501(c)(4)s so that you can confidently hit the streets and get out that vote (GOTV).

Our Attorneys for this Episode

• Tim Mooney
• Natalie Ossenfort
• Quyen Tu

Show Notes

• Why do GOTV? Nonprofits can strengthen our democracy and racial equality by encouraging their communities to go vote.
• GOTV for 501(c)(3)s

• Must be nonpartisan
• Can be targeted

• Okay to express a broad range of issues
• Avoid mixing issue advocacy with GOTV

• GOTV for 501(c)(4)s

• Nonpartisan GOTV is pretty common. This counts as primary purpose activity.
• Partisan GOTV is allowed but is limited to overall secondary activity.

• If you use express advocacy, your GOTV might be an independent expenditure and reportable to state or federal agencies.

• If not, some states regulate partisan activity without express advocacy.

• GOTV doesn't have to be hard or take a lot of resources. Every nonprofit should do it.

Resources

• The Rules of the Game: A Guide to Election-Related Activities for 501(c)(3) Organizations
• Election Checklist for 501(c)(3)s: Ensuring Election Year Advocacy Efforts Remain Nonpartisan
• Nonprofits Get Out the Vote: Strategies and Messaging (Nonprofit Vote presentation, 2018)
• America's Nonprofits Get Out the Vote" report

On this episode, we'll start taking a closer look at one activity that your organization may be interested in engaging in during this midterm election season: voter registration! Since voter registration activities take place in an election context, you'll want to be thinking about multiple areas of the law when designing and implementing voter registration campaigns and drives. That's why we'll spend this episode talking about what you need to consider when it comes to nonprofit tax law, federal election law, and of course… state law.

Our attorneys for this episode

Leslie Barnes

Tim Mooney

Natalie Ossenfort

Tax Law

• 501(c)(3) Public Charities: Must keep voter registration activities nonpartisan
• Activities designed to encourage voting by all those eligible
• Targeting must be for neutral nonpartisan reason
• Offer services to everyone
• Be careful when tying issue advocacy to voter registration

Federal Election Law

• FEC regulations prohibit coordination of VR activities with candidates and parties (no candidate contributions by corporations)
• Post-Citizens United, independent expenditures as voter registration and partisan targeting are legal for (c)(4)s – not (c)(3)s.
• No payments or anything of value (even pizza) to people in exchange for registering to vote

State Laws

• Many states permit use of state and federal voter registration form (National Mail Voter Registration Form)
• Texas: Only Volunteer Deputy Registrars can register voters
  • These individuals must meet certain eligibility requirements
  • Must be trained by the county in which they conduct VR activities
  • Rules related to assisting applicants, etc.
• Recent trend in some states to make it harder to assist voter registration - Florida passed limits on nonprofits engaging in voter registration, but a federal district court recently blocked the law (NBC News)

Foundations

• Public and private foundations can support (c)(3) grantees that engage in voter registration drives
• Rules prohibit private foundations earmarking grants for nonprofits working on voter registration drives in less than 5 states and in a single election cycle
• Grantees need to meet the detailed requirements of 26 CFR 4945(f)

Voter Mobilization, Voter Protection, Candidate Engagement – coming up on other episodes

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

As the world absorbs the news out of Ukraine, Syria, Afghanistan, Myanmar, & the world over, we wanted to devote this episode to the actions nonprofits can take to support international relief efforts and international advocacy. This episode is for foundations and nonprofits working domestically and abroad to deliver equitable relief and advocacy.

It's our 50th episode! Thanks for listening and keep sharing with your colleagues that might be interested in what we do around here.

• Lobbying definitions include international bodies

• International advocacy that doesn't (usually) count
• International lobbying registration and solicitation registration may be necessary
• Foreign Agents Registration Act (FARA)

Resources

• International Advocacy: What Nonprofits Need to Know - Alliance for Justice
• Responding to the Ukraine Crisis: What Nonprofits and Foundations Need to Know
• International Center for Not-for-Profit Law