Rules of the Game: The Bolder Advocacy Podcast

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

Gu...

On this episode, our second in our ongoing lobbying series, we’ll focus on direct lobbying for public charities that have taken the 501(h) election.

For an introduction to lobbying and more on the 501(h) election for public charities, see part 1 of the series.

Attorney Co-hosts

• Jen
• Shyaam
• Leslie

Not all advocacy counts as lobbying

• Communications aimed at executive orders or special purpose bodies like school boards (even though they are elected, those school boards don’t make new laws!).
• Example: asking the incoming Biden Administration to rejoin the Paris climate agreement or ban fossil fuel production on federal lands through Executive Order.
• Example: The incoming Biden Administration might be able to take executive action to dramatically expand the number of gun sellers required to do background checks.

What counts as direct lobbying under 501(h)

• Remember that 501(h) is an expenditure test so it only counts what the organization spends on the communication that is lobbying (including staff time and overhead).
• If you are an all volunteer organization, you should keep track of your time for your own purpose but unpaid volunteer time wouldn’t be counted on the 990 at the end of the year. However, any expenses to facilitate volunteer lobbying (e.g., reimbursements for meals or travel associated with lobbying) would need to be tracked and reported.
• Typically, the types of expenses you need to track are direct costs (e.g., travel costs), staff time, and overhead expenses.

The three-prong defintion of direct lobbying

• A communication
• To someone who formulates legislation (like a legislator, or city council member) or their staff or committee staff
• Expresses a view about a specific piece of legislation

Communication

• Tweets, emails, letters. Preparation for those communications too.
• One on One meetings (when we can do those!)
• Or good old fashioned phone calls?
• What does the communication say?

Legislators (and their staff)

• The legislator that can make the decision needs to be the target of the communication. And it’s at any level of government – city, county, tribal govt., state, federal, even international.
• It can be broader though to include his or her staff because those staff (like the policy director, or the chief of staff) are normally authorized to represent the views of their boss (the elected official).
• What about staff of the Committee on Appropriations when the nonprofit public charity seeks to ensure a line item in the budget to buy new land for a new state park?
• What about public testimony at the committee hearing when a bill is being considered and the nonprofit says “we support this bill in its entirety?” In a later episode we will talk about some exceptions, including being invited to give testimony.
• Executive officials in certain situations, too.
• Are members of the public ever considered “legislators”? Yes when voting on public questions, referenda, constitutional amendments, bond measures. Anytime voters are asked to vote “yes” or “no” in an election, may constitute “legislators” for the IRS for your organization’s advocacy work.

Specific legislation

• The easy case is when the bill has a number, like HB 270.
• How about a piece of model legislation that your nonprofit public charity is trying to get adopted in your state? Or asking for a law to be enacted that was recently enacted in a neighboring state?
• Harder is when you’re working with a champion, an elected official that supports your mission, for example, to end homelessness. Is working with that officials’ office to highlight policy changes, perhaps discussing opportunities to revise statutes, or look for additional funding, is that lobbying? In some cases, you might just be educating legislators and not expressing a view on any specific legislation.
• What about just an idea? The We Want World Peace bill where we’ll teach about peace instead of war? We want you to address climate change. We want you to prioritize arts in the budget. The context is important.

Examples Southerners on New Ground (SONG) a 501(c)(3) .

The Montgomery County Public School Board is holding a public hearing to discuss renaming Lee High School and the issue of Confederate statues. SONG shared this Instagram post. Does the post constitute Lobbying, what if SONG’s followers took these signs to the school board meeting?

An example from the state of Texas. In Texas, the legislature meets ever...

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

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

• ...

On this episode, we’ll take time to reflect on what was a very exciting year for nonprofit advocates. Across the United States, nonprofits organized, formed coalitions, and mobilized communities to advance the goals of equity, justice, and equal rights for all. This episode will highlight some of their success stories and set a celebratory stage for the new year to come.

Our Attorneys for this Episode

Natalie Ossenfort Quyen Tu Tim Mooney

Show Notes

• CALIFORNIA
• • In 2021, nonprofit members of California’s Health4All Coalition successfully shepherded in the passage of “Health for All Seniors.”
  • In September, a nonprofit coalition and several community activists convinced the Los Angeles County Board of Supervisors to begin the process of phasing out oil drilling in unincorporated L.A. County.
  • AFJ/BA helped NPs pass a bill to prevent police from blocking journalists covering protests and demonstrations.
• TEXAS
• • Nonprofits across the state joined forces to successfully advocate for legislation that expands postpartum Medicaid coverage to six months (instead of two). The organizations plan to continue the fight in 2022 expand the law even further.
• NEW YORK
• • Advocates at the New York Transgender Advocacy Group and their coalition partners scored a big win by convincing lawmakers to repeal a law that prohibited loitering for the purpose of engaging in prostitution.
  • Just a few days ago, the New York City Council approved a massive expansion of voting rights, which will allow non-citizen residents to vote in municipal elections.
• OTHER ADVOCACY SUCCESSES
• • In June, nonprofit advocates in Vermont celebrated when the Governor signed into law a bill that expands voting rights by requiring that all registered voters in the state receive mail-in ballots. That same month saw a similar win in Nevada.
  • The Women’s Foundation of Colorado threw its support behind several successful bills.
  • Record number of federal judges have been confirmed,rebalancing the judiciary to more properly reflect the diversity of our country.

Resources

Public Charities Can Lobby Being a Player: A Guide to the IRS Lobbying Regulations for Advocacy Charities