Rules of the Game: The Bolder Advocacy Podcast

On this edition of the pod, we conclude our three-part series on election advocacy by nonprofits with a focus on post-election advocacy. This isn’t very common, but we’ve seen it in 2000 and there are potential signals we could see it in 2020. What can nonprofits do if there’s a contested election?

 

Our attorneys for this episode

Leslie Barnes

Tim Mooney

Quyen Tu

 

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: 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
  • Common Cause’s work in the Georgia gubernatorial election in 2018
  • Minnesota nonprofits’ work in the US Senate race in 2008
• What kinds of advocacy are available to nonprofits in a contested election?
  • Administrative advocacy, including advocacy around secretary of state certifications of the winners, and the process of counting of ballots. 
  • 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.), nonprofits can contact those voters and help them fix the problem within the time limits set by state law.
  • Litigation, including requests for emergency injunctive relief on and after Election Day, and submitting friend-of-the-court briefs before state and federal appellate courts.
  • 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, calls for oversight, or weighing in on a state legislature’s efforts to directly submit a slate of presidential electors in the event of perceived voting irregularities or a natural disaster.

•  

• 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
• Presidential election dates to know
  • December 8 - Safe Harbor
  • December 14 - Electoral College votes
  • January 6 - Joint session of the new Congress meets to certify the Electoral College vote
  • January 20 - POTUS term ends at noon ET, and the winner as certified by Congress, or as chosen by Congress in a contingent election, or person designated by the Presidential Succession Act to be acting President takes the oath of office as POTUS.

 

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 
• Bolder Advocacy’s TA hotline: 866-NP-LOBBY
• Email us at [email protected]
• Our website is bolderadvocacy.org

On this episode, we look at how nonprofits can continue to advocate for a fair and safe election during election days. We intentionally say “days” because many states are offering vote-by-mail (“VBM”, also known as “absentee voting”) or offer early in-person voting well before Nov 3rd, 2020. States took these measures to mitigate some of the challenges presented by the COVID pandemic that we talked about in Part 1 of this series.  

 

Our attorneys for this episode 

 Leslie Barnes 

Tim Mooney 

Quyen Tu 

 

Shownotes 

Because voting doesn’t just happen one day this year, here are things that 501(c)(3)s, as trusted messengers, can do during the voting days to support a free and fair election. 

 

• Encourage people who are not at high-risk to COVID-19 to step up and work as poll worker and early voting officials More Than a Vote - https://www.facebook.com/watch/?v=322130045738998 

• Educate your community and constituents about their different voting options. It is important to note that these rules will vary by states and sometimes even by counties! 

• • Preparing for in-person voting 
  • Vote-by-mail rules and deadlines 
  • Provisional ballots and what that means 

 

• Facilitate voting by offering rides to polls, childcare services, translation services, pay off fines. 

• Promote election protection: be a poll monitor or staff voter protection hotline. 

• Have a game plan to address voter intimidation. 

• Help people understand that we likely won’t have definitive elections results the night of Nov. 3rd, especially in close races. 

• Litigation 

• Mobilize public support for safe and fair election (including protests) when anything happens that will prevent voting or the administration of voting. 

 A special note for private foundations: 

It’s not too late, you can fund all nonpartisan efforts except for voter registration drives. This is the rainy day that you’ve been saving for! 

 A special note for 501(c)(4)s: 

501(c)(4)s can do everything we’ve covered in this episode and you could do one of these activities in a partisan manner as long as it is your secondary activity. 

  

Resources 

•  Appendix B of Rules of the Game: Permissible Nonpartisan 501(c)(3) and Partisan Campaign Contact on Voter Engagement and Protection Efforts 
• Election Protection by c3s 
• 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/ 
• Bolder Advocacy’s TA hotline: 866-NP-LOBBY 
• Email us at [email protected] 
• Our website is bolderadvocacy.org 

   

 Non-Bolder Advocacy Resources: 

• 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/ 
• Check out how a 501(c)(4) is feeding people waiting in line to vote! https://polls.pizza/ 
• Election Protection: https://866ourvote.org/ 
• Paying off fines: https://wegotthevote.org/finesandfees/ and article on Mike Bloomberg paying off fines for former felons in Florida so they can vote 
• Art pieces around voting: https://www.planyourvote.org/artist-works 

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 the first of a three-part series. Part 2 on Election Day(s) Advocacy. Part 3 on Post-Election Advocacy. 

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/ 

 

 

With national attention on the Presidential and Vice-Presidential debates, it’s a good time to cover the rules for how nonprofits can convene and comment on debates. 

 Our attorneys for this episode 

Tim Mooney 

Jen Powis 

Quyen Tu 

 

Shownotes 

 Public charity 501(c)(3)s can educate candidates and voters. 

• Many debates are run by 501(c)(3)s. 
• Example: Commission on Presidential Debates is a 501(c)(3) public charity 
• Remember 501(c)(3)s cannot support or oppose candidates. 

• See the Facts and Circumstances analysis from our first episode. 

 

• Nonprofits can host debates as an opportunity to educate voters 
• Candidate education 
• Host a debate with a coalition 

• Example from The Coalition for Environment, Equity & Resilience (CEER), a program of Healthy Gulf (c3) & BakerRipley (c3) in Houston 

 

• Invite all viable candidates (what is viable) 
• Prepare questions prior, and ensure an adequate moderator 
• No candidate pledges 

• Nonprofits can respond to things said in debates 
• Fact checking is ok, but not support/opposition to candidates 
• Be consistent in your language. 
• Example: Sierra Club, c4? 

 

• Consistency and a track record are key. 
• Best practices: 
• Think through why responding now helps its advocacy program, 
• Determine who is permitted to “speak on behalf of the organization,” 
• Focus on what is said (the issue) and not the candidates themselves, and 

• Ensure that the facts provided meet the above objectives. 
• Example: Southern Poverty Law Center (c3) responding to President Trump’s comment about the “Proud Boys” 

 

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 

Can 501(c)(3)s use social media to praise or criticize the policy actions of elected officials during an election year? It depends! Tim, Leslie and Quyen break down two examples of nonprofits that show you can safely and legally criticize elected officials even if they are up for re-election.

 

Our attorneys for this episode

Tim Mooney

Leslie Barnes

Quyen Tu

 

Shownotes

• 501(c)(3)s cannot support or oppose candidates for public office – see ROTG episode 1. But they can criticize or support the policy actions of incumbents, so long as it doesn’t appear as a proxy for a stance on the re-election of that official.
• Example 1 - Ali Noorani is President & Chief Executive Officer of the National Immigration Forum, a 501(c)(3) advocacy organization to promote the value of immigrants and immigration. Ali is responding to President Trump’s Executive Order banning certain types of visas. 
  • Green light – this does not pose a risk
  • Criticism is focused on the actions, not theindividual 
  • Track record of criticism prior to the lections
  • Timing is well before the election
  • Trigger is a non-election event (the EO)
• Example 2 - Marisa Ordoniais a Senior Associate Attorney at Earthjustice’s regional office in Seattle. In this clip, Marissa speaks about a case against the Trump administration. 
  • Green light – this does not pose a risk
  • Track record: 115 cases against the administration
  • No references to voters or election
  • Timing is well before the election
  • Non-electoral trigger

 

Resources

• Praising and Criticizing Incumbents
• Rules of the Game
• Bolder Advocacy’s TA hotline: 866-NP-LOBBY
• Email us at [email protected]
• Our website is bolderadvocacy.org  

We are deeply saddened by the loss of one of the greatest jurists of our lifetime. Ruth Bader Ginsburg was a champion for a just and free society, as an advocate, an attorney and a Supreme Court Justice. She is irreplaceable, but someone will be nominated to take her seat on the Court.

For over 4 decades, Alliance for Justice has been a leader on Supreme Court nominations, galvanizing a large and diverse coalition of progressive advocates. Now we are faced with the biggest fight yet. If you and your nonprofit care about the cause of equal justice, and the future of our country—now is the time. Not only can your nonprofit take a stand. It must.

Read Alliance for Justice’s full statement on the passing of Justice Ginsburg.

On this episode we're covering what your nonprofit can do to advocate on Supreme Court or other judicial nominations. 

 

Our attorneys for this episode

Tim Mooney

Leslie Barnes

Quyen Tu

 

Shownotes

Work supporting or opposing a judicial nomination like the Supreme Court counts as lobbying.

For 501(c)(3) public charities, it’s legal to lobby but tax law limits how much you can do.

There are two ways for (c)(3)s to measure their lobbying limits. If you’re going to be active in this area of judicial nominations, you should make the 501(h) election, which we’ll cover in more detail in a future episode.

The benefits of making the 501(h) election:

• Clear dollar based lobbying limits
• Clear definitions of lobbying.
• It’s retroactive to the beginning of your tax year
• Although there is a limit, the consequence of going over the limit is an excise tax and going over in one year doesn’t jeopardize your exempt tax status.

Other 501(c)s can lobby an unlimited amount, but they can also tie their issue advocacy to electoral outcomes. For example, they can tie judicial nomination advocacy to their candidate endorsements.

 

Pre-nomination advocacy

Trying to influence the President on specific nominees is lobbying

Speaking to Senators before the nomination – unlikely to be lobbying.

Talking about the process — for instance waiting until after the election to proceed with filling the vacancy — probably not lobbying activity before or after a nomination.

 

Post-nomination advocacy

Direct lobbying - Senators and sometimes the President

Grassroots lobbying – the general public, when there’s a call to action

 

How does the election factor in?

For 501(c)(3)s that focus on the nomination itself, it is safe lobbying territory.

501(c)(3)s should not stray from the nomination process and tie their advocacy into whether the President or Senators should be reelected. That gets into partisan territory.

Listen to the first episode of Rules of the Game more on advocating in an election season.

 

Best Practices

Do’s

• Talk about the importance of the Supreme Court and the lower courts in protecting people’s rights. Do talk about RBG’s legacy and her decisions. Do talk about the 5-4 votes and how the balance could be tipped.
• Talk about any nominee’s record on the issues, with a particular focus on the potential impact on issues on which the organization has a record of working and speaking
• Talk about the nominee’s experience (or lack thereof).
• Tie a Senator’s public position on the issues to the nominee’s known record, or President’s statement on qualities he wants in nominees.
• Engage in grassroots mobilization. If your efforts include a call to action, for example, “Tell your Senator to Vote No,” track activities as grassroots lobbying. If advocacy concerns the process, that will generally not be counted as lobbying. For example, “No vote until after inauguration day,” or “A lame duck Senate should not be voting on a lifetime Supreme Court seat,” will likely not count as lobbying.
• Fund this work if you are a private foundation

 

Activities for 501(c)(3)s to avoid

• Don’t say a Senator should be defeated or re-elected because of their actions on this vacancy.
• Don’t praise or criticize statements of the people who are running against sitting Senators or the President on the nomination.
• Don’t share social media posts from candidate accounts—check before you tweet. Sitting Senators will have a campaign account and an account for their Senate role—check to ensure you are sharing from a non-campaign account. Be careful with c4 and PAC accounts—many will be posting content a c3 should not share.

 

Resources

Bolder Advocacy’s TA hotline: 866-NP-LOBBY

Email us at [email protected] 

Our website is bolderadvocacy.org  

Resources on judicial nominations, including the process and the potential Supreme Court nominees

501(h) Factsheet

Foundation Support for Public Charities that Influence Judicial and Executive Branch Confirmation Votes

Staff, volunteers and board members of 501(c)(3)s have to make sure they avoid supporting or opposing candidates on behalf of their organization when they’re on the clock. But, those rules only apply to the organization. People that work or volunteer for a 501(c)(3) can – on their own time, and in their  individual  capacity - support or oppose candidates of their choice. But, as always, the devil’s in the details.  On this episode, Tim, Leslie and Quyen cover best practices to keep your personal partisan support separate from your 501(c)(3) work. 

 

Our attorneys for this episode 

Tim Mooney 

Leslie Barnes 

Quyen Tu 

 

Shownotes 

• 501(c)(3)s cannot support or oppose candidates for public office – see ROTG episode 01.  But those rules do not apply to individuals on their own time in their own capacity. 
• Important to show separation  
•  IRS Guidance is old 

• Key is to ensure (c)(3) funds are not subsidizing personal partisan work  
• Tips for showing separation on social media  

• Multiple accounts I 
• Disclaimers   

• Can a (c)(3) employee go to the DNC? 

• Yes, in personal capacity 
• Employer may have policies that have added restrictions 

• Best practices 

• Acting in good faith  
• Don’t be cute  

• Do any partisan things on your own time  
• Be clear that it's you and not the organization – know what hat you’re wearing 

 Resources 

• Board Members and Election Year Activities  
• Election Activities for Individuals Associated with 501(c)(3)s  

• Sample 501(c)(3) Organizational Policy for Election Season  
• Bolder Advocacy’s TA hotline: 866-NP-LOBBY 
• Email us at [email protected]  
• Our website is bolderadvocacy.org   

501(c)(3)s can’t support or oppose candidates, but that doesn’t mean they can’t hold elected officials accountable for their policy decisions. Tim, Leslie and Quyen break down an interaction in Minneapolis following the police killing of George Floyd to talk about the ways individuals and nonprofits can engage elected officials. 

 

Our attorneys for this episode

• Tim Mooney
• Leslie Barnes
• Quyen Tu

 

Shownotes

• 501(c)(3)s cannot support or oppose candidates for public office – see ROTG episode 1. But they can hold elected officials accountable for their policy actions or inactions.
• Our example comes from a public discussion between Minneapolis activist Kandace Montgomery and Mayor Jacob Frey.
• Individuals have more ability to draw connections to future elections than 501(c)(3)s
• Non 501(c)(3) organizations aren’t as restricted in connecting to elections, but may need to follow relevant election laws
• Strategies
  • “Bird dog” elected officials by showing up at their offices, town halls, or events to respond to their positions and to make the public aware of stances
  • Representatives of organizations may also ask questions of officials at public events or when they are in public places and then publicize the official’s answer. 
  • Stage public demonstrations, rallies, or marches to highlight support for or opposition to a policy or action by an elected official.
  • Call for town hall meetings 
  • Hold your own town hall meeting 
  • Call for oversight hearings. 
  • Use social media. 
  • Creatively highlight the impact of a policy

 

Resources

• Election Checklist for 501(c)(3) Public Charities: Ensuring Election Year Advocacy Efforts Remain Nonpartisan
• Election Year Activities for 501(c)(4) Social Welfare Organizations
• Accountability Advocacy for 501(c)(3)s
• Bolder Advocacy’s TA hotline: 866-NP-LOBBY
• Email us at [email protected]
• Our website is bolderadvocacy.org. 

The 2020 election is right around the corner. Your nonprofit may have mastered how to talk to candidates – but the rules change as successful candidates make the transition to elected officials. Join us for our next Live with Bolder Advocacy: How Nonprofits Can Assist in Transition Advocacy.

Senior Counsel Tim Mooney answers all your questions in how nonprofits can take advantage of this period of transition to educate a new administration and staff on the issues your organization cares about.

Originally broadcast on Facebook Live on August 26, 2020. 

Can 501(c)(3)s advocate to advance their mission while remaining nonpartisan during an election year? Tim, Leslie and Quyen explain the factors that the IRS looks at, and use a recent example to show how small changes in the content or context of a communication can change things. 

 

Our attorneys for this episode

Tim Mooney

Leslie Barnes

Quyen Tu

 

Shownotes

• The one rule 501(c)(3)s need to know during election year — 501(c)(3)s cannot support or oppose candidates for public office.
• An election year is a great opportunity to elevate the issues your nonprofit works on every day. There are so many ways nonprofits can engage with voters, candidates and elected officials. 
•  Think of your advocacy like a road – there's plenty of room to maneuver but this rule sets up guardrails you can’t cross.  
•  But the guardrails define the legal advocacy that can happen on the metaphorical road, so we start there. 501(c)(3)s cannot support or oppose candidates for public office, which means their activities must be nonpartisan. 
•  To determine whether or not a 501(c)(3) is nonpartisan, the IRS looks at all of the facts and circumstances. This is a subjective, risk analysis that takes into accounts everything the organization is saying and the context in which it’s saying that. 
• Six things the IRS looks at in the facts & circumstances analysis:

1. Track record of advocacy 
2. Timing relative to election 
3. Electoral or non-electoral factor driving the activity/communication 
4. References to candidate/election or comparing candidate positions. 
5. Is your message targeting for electoral or non-electoral reasons
6. Wedge issues

• Context matters, but intent does not. This is an exercise in risk analysis, so we use a stop light analogy – red light is risky, green light low or no risk, and yellow light somewhere in between.  

 

Example

Source: Earthjustice tweet of July 2, 2020.

 

• Our analysis: this was low-to-no risk tweet. Let’s go through a facts & circumstances analysis to understand why. 
• 1. Earthjustice’s track record of advocacy 
  2. Mentioning a candidate, but out of context of the election
  3. Timing of the communication is far away enough from the election
  4. Communication based on non-election trigger (ongoing litigation)

• How do changes in timing and language affect the analysis?
• • The same communication in late October may be higher risk unless the timing were linked to something independent of the election (such as a court opinion right then) 
  • But replace the reference to the Trump administration with the named defendant Army Corps of Engineers and the risk lowers again.
  • Some additional language may make things much riskier, like adding a hashtag #RememberInNovember or some other implicit or explicit link to the election.

 

Resources

• Election Checklist for 501(c)(3) Public Charities: Ensuring Election Year Advocacy Efforts Remain Nonpartisan 
• Election Year Activities for 501(c)(4) Social Welfare Organizations 
• Bolder Advocacy’s technical assistance: 866-NP-LOBBY
• Email us at [email protected] 
• Our website is bolderadvocacy.org