On this episode, we discuss how nonprofits can engage in advocacy during this time of transition and prepare for 2025.

Attorneys for this episode

Sarah Efthymiou

Víctor Rivera Labiosa

Melissa Marichal Zayas

Show Notes

 

Post-Election Communications: Prohibition on Campaign Intervention

·       Keep in mind that 501(c)(3)s should never indicate that they support or oppose candidates for public office, whether in the past, present, or future.

• Permissible communications for 501(c)(3)s:
• Congratulating a newly elected official or thanking a former candidate for their hard work during the election.
• Discussing the organization’s nonpartisan voter engagement.
• Commenting on the demographics of who voted or didn’t vote.
• Encouraging a peaceful continuation or transfer of office.

·       Impermissible communications for 501(c)(3)s include:

o   Suggesting that the organization attempted to influence the outcome of an election.

o   Supporting efforts to draft a named person to run for office in a future election.

o   Declaring that the organization or voters will hold an elected official accountable in the next election.

 

Transition Advocacy: Is it Lobbying?

·       Transition advocacy is a hot topic, especially after elections, and one of the most common questions we get from 501(c)(3) public charities is whether it counts as lobbying. The short answer? Sometimes, yes—but often not.

·       In general, lobbying involves efforts to influence specific legislation. For 501(c)(3) organizations operating under the insubstantial part test, advocacy for or against legislation qualifies may count as lobbying.

·       If an organization has made the 501(h) election—which allows nonprofits to maximize and clarify their lobbying limits—the IRS uses a different definition. Under the 501(h) expenditure test, lobbying breaks down into two categories:

o   Direct lobbying: Speaking to a legislator and expressing a view about specific legislation.

o   Grassroots lobbying: Communicating with the general public to express a view on specific legislation andincluding a call to action.

·       Under the 501(h) expenditure test, two key factors determine whether your activity qualifies as direct lobbying:

o   Are you speaking to a legislator?

o   Is the topic you’re discussing considered specific legislation?

If the answer to both is "yes," it likely counts as lobbying.

·       Examples of lobbying activities during transition period:

o   Advocating about spending priorities

o   Supporting/opposing nominations of new exec cabinet officials or judiciary

o   Advocating for changes in laws or amending current laws

o   Advocating for a new program – if would require new legislation

·       Important to assess what you’re saying, who you’re saying it to, and whether any exceptions apply.

 

Transition Advocacy: When is it Not Lobbying?

·       Some organizations may try to avoid engaging in lobbying activities so it’s important to understand what their non-lobbying options are during this transition

·       During this period, organizations can try to get to know their newly elected officials. Meeting with these officials, without trying to influence any nomination process or any piece of legislation (including the budget process), does not count as a lobbying activity.

·       On top of that, nonprofit organizations can do the following:

o   Recommend transition team members

o   Get involved in the executive order process

o   Develop relationships with these newly elected officials

o   Talk about nominations that do not require the advice and consent of a legislative body (or a legislative vote)

o   Actively participate in the rulemaking process

§  Beware: it may count as a lobbying activity at the state/local level

o   Take advantage of the 501(h) lobbying exceptions!

 

Resources

Can We Say That? Post-Election Advocacy for 501(c)(3) Organizations

Preparing for Change: How Nonprofits Can Shape Policy By Engaging Transition Teams

Transition Advocacy: Is it Lobbying?

The Advocacy Playbook Series