Rules of the Game: The Bolder Advocacy Podcast

On this episode, continuing our celebration of yesterday's national voter registration day we're revisiting a segment of our foundation myth busting episode all about funding nonpartisan voter registration drives.

Lawyers for this episode

Tim Mooney

Natalie Ossenfort

Jen Powis

Shownotes

MISCONCEPTION: Foundations can't fund public charity voter registration drives

· Both private and public foundations can fund the NONPARTISAN voter registration activities of public charities, but the rules for private foundations can be a bit complicated...

· VR Drive must be nonpartisan, over multiple election cycles, in five or more states and cannot be subject to conditions requiring use of the funding in a specific state or election cycle.

· There are also requirements related to the grantee's finances (e.g. at least 85% of organization's income must be spent on activities relating to the purposes for which it was organized)

· Public charities can receive an advanced ruling from IRS certifying their ability to receive private foundation voter registration grants (confirms that organization meets the requirements of sec. 4945(f) of tax code)

Resources

Foundation Advocacy Grants: What Grantees Need to Know

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

This segment was originally podcast June 23, 2021.

Did you know that 60% of eligible voters are never asked to register to vote? Couple this startling fact with many new voter registration rules that have been introduced since the 2020 election—in many instances, to make it harder to register or stay on the voter rolls—we thought it was time to revisit this topic. This year, National Voter Registration Day is September 19 so there's no time like the present for nonprofits to develop a plan to engage in voter registration!

Attorneys for this episode:

• Monika Graham
• Natalie Ossenfort
• Quyen Tu

Voter Registration Rules for 501(c)(3) Nonprofit Organizations (according to the Tax Code)

Yes, your nonprofit can engage in voter registration activities! When doing so, public charities must ensure they are conducted in a nonpartisan manner and in compliance with all applicable federal and state laws.

DO:

• Keep voter registration work nonpartisan

• Focus voter registration activities on community members with whom the organization serves or hopes to serve

• Focus on historically underrepresented populations (youth, low-income, etc.)

• Make their voter registration services available to everyone

DO NOT:

• Attempt to influence which parties or candidates get elected to public office

• Coordinate activities with candidates or parties

• Prioritize outreach to populations because they are more likely to vote for certain types of candidates

• Reference candidates or parties

• Provide incentives and/or knowingly and willfully pay, offer to pay, or accept payment either for registering to vote or voting (payment includes anything having monetary value including pizza or prizes given out for voting).

Relevant Voter Registration Federal Election Laws for 501(c)(3) Nonprofit Organizations

When federal candidates are on the ballot certain FEC rules may apply, including:

• Organizations should not provide incentives and/or knowingly and willfully pay, offer to pay, or accept payment either for registering to vote or voting (payment includes anything having monetary value including pizza or prizes given out for voting).

• Organizations should not coordinate voter registration activities with candidates or political parties.

Know Your State Laws on Voter Registration

State laws can be very specific. For example:

• Texas requires any person who collects and returns completed voter registration forms to be appointed a Volunteer Deputy Registrar (VDR) by each county in which they will be acting.

• Minnesota allows individuals to register to vote online. Third parties (like nonprofit staff) may not electronically submit a voter registration application on a voter's behalf, but may help the voter submit the application, with the voter's consent and in the voter's presence.

• Many states also have restrictions on providing incentives for voter registration (like FEC regulations), so check your state's laws for more.

• In California, if you request more than 50 voter registration cards, you must submit a distribution form that (among other things) requires you to summarize your distribution plan.

Check out our Practical Guidance-Nonprofit Voter Assistance series. We currently have 19 states available, but more coming soon!

Foundations CAN Support Voter Registration

Foundations can provide grants for nonpartisan voter registration activities only! Public Foundations can fund voter registration directly or indirectly by making general support grants. While the rules for Private Foundations are more restrictive, 501(c)(3) organizations can potentially use their general support grants to support voter registration drives (if not prohibited in grant agreement). In addition, Private Foundations can make specific project grants for voter registration drives in limited circumstances.

Make a Plan for 2024 Now!

• Check out Nonprofit Vote's National Voter Registration Day website for tips and shareable posts.

• Train your staff and volunteers are on the rules!

• Make your own plan to vote!

Resources

• Practical Guidance – Nonprofit Voter Assistance

• 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

• Combatting Voter Suppression and Election Subversion: What Your Nonprofit Can Do

On this episode we chat with Shannon Williams, Director of Boulder Advocacy's Operations and Evaluation to learn more about the use of evaluation tools to make our organizations better advocates. Measuring success is much more than identifying wins and losses, it includes improving capacity and other incremental steps to achieving policy goals.

Voices on this episode

Tim Mooney

Shannon Williams

Shownotes

• Understanding Evaluation
• Differences between advocacy and program evaluation.
• Beyond Wins & Losses
  • Importance of considering interim milestones and not just the end goals.
  • The "attribution conundrum."
  • Embracing complexity, focusing on contribution rather than attribution.
  • Building power and capacity as evaluation metrics.
  • Importance of sustainability and setting up for long-term success.
  • Understanding the vision of an organization and using the Theory of Change to achieve it.

Resources

· A User's Guide to Advocacy Evaluation Planning (Harvard Family Research Project)*

· The Advocacy Strategy Framework (Center for Evaluation Innovation)*

· Data Playbook (Schusterman Philanthropies)*

· Getting Started: A Self-Directed Guide to Outcome Map Development (ORS Impact)*

· When the Best Offense is a Good Defense: Understanding and Measuring Advocacy on the Defense (ORS Impact)*

· Advocacy Capacity Tool (ACT!) and ACT! Quick*

· Amplifying Nonprofit Voices: Bridging the Advocacy Evaluation Gap

· Advocacy That Builds Power: Transforming Policies and Systems for Health and Racial Equity (Center for Evaluation Innovation)

· Gigi Barsom, "A New Framework for Understanding Power Building," Stanford Social Innovation Review, July 17, 2023

On this episode, we are joined by special guest, Molly Coleman, the co-founder and executive director of People's Parity Project (PPP), a 501(c)(3) organization dedicated to harnessing the organizing power of lawyers and law students to create a legal system that prioritizes the people over corporate profits. Molly shares the inspiring journey of PPP, starting as a grassroots law student organizing effort to its current nationwide presence, fighting for a better legal profession and a justice-centered legal system. We explore the challenges and learning curves faced by PPP as a coalition of law students and new attorneys, the need for reform in legal education, and the importance of public engagement to effect change. Join us as we uncover the bold projects and imaginative strategies PPP is employing to shape a future where justice prevails.

Attorneys for this episode: Quyen Tu, Tim Mooney

Guest: Molly Coleman, Co-Founder and Executive Director of People's Parity Project

Questions

What is People's Parity Project, and how did you get started?

Where does PPP draw its inspiration from?

As law students and new attorneys, what are the learning curves you face in this work and are there balancing advantages to the perspectives you bring?

What are your thoughts on law school reform?

What are things we need to fix the legal system?

How does the structure of being a (c)(3) organization help and hinder what you want to accomplish?

How can people get involved, including students looking to starting a a chapter at their law school or graduates starting one at their alma mater?

Resources:

People's Parity Project

It's our first-ever #sportsball edition of the pod! Dig into the tax code a bit, and you'll discover that tax-exemption and sports fit together like a sports reference and a podcast that doesn't really cover sports. In other words... perfectly. From amateur athletics, to professional sports leagues, to this newish thing called NIL that allows collegiate athletes to get paid for the billions they earn other people, the IRS and tax law has something to say about all of it. And most importantly, after this episode you will too at your next summer cocktail outing...

Attorneys for this episode: Natalie Ossenfort, Tim Mooney, Victor Rivera

What are tax-exempt organizations?

Amateur athletics as 501(c)(3)s

Major pro leagues had 501(c)(6)s and then dropped them

· Advocacy angle... weighing in on oversight is not lobbying, so many tax-exempt advocacy groups like Human Rights Watch have weighed in against the move.

· Or, advocacy in support of (or opposition to) the "No Corporate Tax Exemption for Professional Sports Act", legislation introduced in Congress in June of this year that, if passed, would strip the Tour of its tax-exempt status. ---> Lobbying

Case study: NIL Collectives as 501(c)(3)s

· NCAA v Alston

· NIL collectives were set up as 501(c)(3) organizations, making tax-deductible.

· 2023 IRS GLAM letter concluded that an organization that develops paid NIL opportunities for student-athletes will, in many cases, be operating for a substantial nonexempt purpose (ie, serving the private interests of the student-athletes, instead of providing a real charitable purpose).

Resources:

· 501(c)(3) exemption requirements by the IRS

· Establishing your organization toolkit

· GLAM letter on NIL Collectives

· NCAA's response to GLAM letter

So let's say you have a really good idea for a tax-exempt organization, and hooray it's charitable activities so you're all set to ask the IRS for recognition! You even have some potential funding sources, and you're ready to go. But oh that pesky IRS recognition process – until recently Form 1023s could take up to a year or more to process! Sure you can wait, but you can also find an existing (c)(3) to be your fiscal sponsor and get going much more quickly. On this episode, we chat about how fiscal sponsorships work.

Attorneys for this episodeLeslie Barnes Tim Mooney Quyen Tu

1. What is a Fiscal Sponsorship?

Orgs that let you borrow their nonprofit designation. Mostly (c)(3), but (c)(4) can be a fiscal sponsor. File Notice of Intent to Operate as (c)(4) with IRS Form 8768

Their nonprofit rules = your nonprofit rules.

Employment policies (compensation, benefits, hiring/firing, anti-discrimination, etc)

Benefits = operational support for your project – HR, Legal, Accounting, Tax – allowing you to focus on your programs.

2. Types of Fiscal Sponsorships

Two different ways this is done. IRS has various models. Money does to the FS, there's an agreement between the parties (sponsor and project)

Examples: Tides Center sponsors Lift Louisiana, a project focused on improving health outcomes for Louisiana women, families, and their communities

Examples: Burning Man Project own Black Rock City, LLC (a single member limited liability company) under a Model L sponsorship, BRC hosts an annual art and culture event, based on self-reliance.

3. To Fiscal Sponsorship or not?

Project Perspective: Quickest way to "get up and running" for funders. Provides many of the traditional markers of established orgs.

Is your org staffed to meet admin and compliance independently?

Do you want to seek GOS grants

Their rules = your rules: Will your project involve lobbying, voter registration drives, or other types of

nonpartisan civic engagement?

Fiscal sponsor perspective

Fiscal sponsor must maintain control over project, assets, and liabilities

4. Spinning Off or Exiting the Fiscal Sponsorship

Sponsorship agreement should include an off ramp

Provisions for transferring assets, including IP

Example from Tim – X-PAC fiscally sponsored by Portland League of Women Voters

5. Seek Legal Advice

Resources

Bolder Advocacy's Project Grant Rule Hub – complete with explainer videos, sample budgets, and factsheets for funders and projects. Private foundations that award grants to sponsored projects must do so using a specific project grant

The Ultimate Resource List for Fiscal Sponsorship Seekers - most comprehensive list of resources on the web for understanding what fiscal sponsorship is, if it's right for your charitable project and how to go about finding and vetting potential fiscal sponsors. Need we say more??

Fiscal Sponsorship: 6 Ways To Do It Right by Gregory Colvin

Fiscal Sponsor Conversations - weekly conversation focused on the needs, challenges and goals of fiscal sponsors.

Cooperative Impact Lab – running the Fiscal Sponsorship Cooperative to provide support and capacity for fiscally sponsored projects to form and run their own nonprofits

From Fiscal Sponsorship to Autonomous Operation – an interview with Mariana Ruiz Firmat

On this episode, we turn to your questions on nonprofit advocacy with another edition of Ask Us Anything. We'll discuss how nonprofits can speak up about the actions of elected officials, conduct voter engagement activities, and secure funding for lobbying. We'll also consider the power of the purse strings, policy advocacy and much, much more.

Attorneys for this episode

Natalie Ossenfort Victor Rivera Quyen Tu

Questions:

1. What can nonprofits do about elected officials sending migrants to another state?

2. Is it a good idea to boycott travel to/doing business in State X because of their anti-LBGTQIA legislative actions?

3. What rules do we need to be thinking about if our 501(c)(3) wants to conduct voter engagement activities?

4. Can the 501(h) election apply retroactively to another fiscal year?

5. Public Charities are allowed to lobby, but should they ask donors to donate specifically for the purpose of influencing legislation (e.g. the budget, nominations requiring legislative confirmation, bills, etc.)?

6. Our public charity was invited to apply for a project grant from a private foundation, but they are asking us for an allocated budget... what does that mean?

Resources:

· Project Grant Rule Hub

· Practical Guidance – Nonprofit Voter Assistance Series

· Factsheet: Praising and Criticizing Incumbents: How 501(c)(3)s Can Hold Elected Officials Accountable for Official Actions

· Technical Assistance Form & 866-NP-LOBBY

With elections always around the corner, many listeners may wonder whether their advocacy organization needs a PAC. In this first episode of an ongoing series this year, we'll introduce you to PACs, including pros and cons plus how to fund and run them. We'll look at factors to consider when forming a PAC & what activities PACs can engage in.

Attorneys for this episode

Leslie Barnes Susan Finkle-Sourlis Tim Mooney

Shownotes

• What are PACs?

• • Should your 501(c)(4) form a PAC?

• • • If not % partisan/exempt activity – may incur excise tax

    • Exempt purpose for PACs = partisan activity, whereas exempt purpose for 501(c)(3) = charitable and exempt purpose for 501(c)(4) = social welfare

• • Are you maximizing your 501(c)(4) organization's advocacy?

• • • Do you want to do MORE IEs?

    • Do you want to use a stronger voice different from the 501(c)(4)?

• 3 Examples

• • • A 501(c)(4) realizes they can do everything they want to out of their 501(c)(4)

    • You're on a board of a 501(c)(4), you see elected officials blocking progress but rest of board declines to start a PAC

    • A 501(c)(4) determines they want to extend and amplify their 501(c)(4) work, so they decide to form a connected PAC

• Preview future episodes in the series on PACs

• • Types of PACs

  • Funding of PACs

  • Operating PACs

Resources

The Connection: Strategies for Creating & Operating 501(c)(3)s, 501(c)(4), and PACs

Independent Expenditures – What are They and What are the Rules

Forming a Corporate Political Action Committee by our partners at the law firm of Venable, LLP

FEC – for guides, advisory opinions, and more (test)

Sometimes, public officials don't behave the way we hope they will. Whether it's a conflict of interest, outright corruption, or even a criminal offense we have seen examples of government officials that break the trust of the people they serve. While some may find their way out of office at the next election or through impeachment, those options may not be available. On this episode, we tackle advocating for resignation when a problematic public official needs to step down now.

Attorneys for this episode

Natalie Ossenfort

Tim Mooney

Why would one advocate for resignation over something else?

Lifetime tenures with no end of terms

Impeachment processes aren't politically feasible

Elections for the term are years away and the conduct is too egregious to wait out

For 501(c)(3)s: Prohibitions on supporting or opposing candidates for public office

Can my nonprofit call for the resignation of appointed or elected officials?

The IRS has given no guidance on this, but we can make some informed calls based on parallel guidance

Answer: Yes, almost without limit unless the call for resignation touches on limited or restricted activity

Isn't this the same as supporting or opposing candidates?

Not usually - no elections involved in a call to resign. Calls for resignation could be an election issue, however (tread carefully if a (c)(3))

Special caution should be exercised if advocating for resignation of an elected official (e.g. don't want to suggest who should (or should not) be elected to fill the position if resignation happens)

Note this is very different than supporting a recall vote, which is an election and would therefore be prohibited activity for a 501(c)(3)

Could this be lobbying?

Only if there is a process where there is a vote of a legislative body and you advocate for a vote

i.e. An oversight committee considers the conduct of a member and votes on a resolution call for expulsion, impeachment or resignation.

Examples

Calls in years past for President Trump to resign (sorry you'll have to be more specific) before and during impeachment(s) that did not support/oppose any votes on impeachment in the House or the Senate trial

Calls for Justice Thomas to resign in light of discovery of unreported financial conflicts of interest. Sweetheart real estate deals, private school tuition, and lavish vacations. Oh my!

Calls for Rep. Santos to resign after indictment on multiple federal criminal charges

Resources

Raising the Bar: Nonprofits and the Fight for Judicial Integrity

Ballot Measures and Recalls: Basic Rules for 501(c)(3) Public Charities, 501(c)(4)s, and Unions

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

AFJ's call for Justice Thomas to resign

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