The Importance of Public Policy & Advocacy...The Importance of Public Policy & Advocacy: How...

The Importance of

Public Policy & Advocacy:

How Foundations & Grantees

Leverage Impact with Advocacy

@AFJBeBold

Isaiah Castilla, Counsel

Organize Communities

Educate Public

Educate Legislators

Nonpartisan Voter Ed.

PARTISAN POLITICAL

LOBBYING

Encourage Voting

Educational Conferences

Research

IRS Lobbying Exceptions

Change Corporate Behavior

Skills Training

Regulatory Efforts

Litigation

What is ADVOCACY?

501(c)(3)

Private Foundation501(c)(4)/

(5)/(6)

Examples

Tax Treatment

LobbyingActivities

ElectoralActivities

Contributions tax-deductible

Tax-Exempt Tax-Exempt

UNLIMITED

Cannot support or oppose a candidate

for office

Secondary activity

Follow federal and state election law

PROHIBITED

Tax on foundation & managers

501(c)(3)

Public Charity

Contributions tax-deductible

Tax-Exempt

Cannot support or oppose a candidate

for office

LIMITED

Insubstantial Part or 501(h)

Public Charities may LOBBY

Must stay within limits set by the IRS

Insubstantial part

test

OR

501(h) expenditure

test

Private Foundations Tax on

Lobbying

Private foundations

pay tax on

lobbying

expenditures 20% on foundation;

5% on managers

100% on

foundation; 50% on

managers

ADVOCACY STOPLIGHT

PRIVATEFOUNDATION

PUBLICCHARITY/COMMUNITY

FOUNDATION

prohibitedfor all c3s

prohibitedfor all c3s

lobbying subject to limits

unlimitedspecial rules for voter registration

lobbying subject to tax

partisanpolitical

lobbying

nonpartisanpolitical & other

advocacy

Private Foundation Lobbying KEY

POINTS:

▪ ENGAGING IN LOBBYING

▪ SUPPORTING LOBBYING

▪ GIVING GENERAL SUPPORT GRANTS

▪ SPECIAL PROJECT GRANTS

Public Foundation Lobbying KEY

POINTS:

▪ ENGAGING IN LOBBYING: Can engage in

most nonpartisan advocacy activities,

including lobbying up to IRS limits.

▪ SUPPORTING LOBBYING: Can make general

support grants and specific project grants

with which the grantee can lobby. Counts

against foundation’s own lobbying limits, but

can also count against grantee’s limit (if

earmarked).

General

Support

Grants

Specific

Project

Grants

Private foundations should not

EARMARK grants for lobbying

but…

Private foundations

may FUND grantees that lobby

$$$

A public charity or a

community/public

foundation may EARMARK a

grant for lobbying, but must count the grant

against its own LOBBYING

LIMIT

EARMARKED for Lobbying?

Private

foundations

Public charities /

foundations

"EARMARKED" DEFINED

“A grant by a private foundation is

earmarked if the grant is given pursuant to

an agreement, oral or written, that the

grant will be used for specific purposes.”

GENERAL SUPPORTGrant “Safe Harbor”

Private foundation is not legally

responsible for its grantee’s

lobbying

Private foundation

does not EARMARK grant

and…

≤

SPECIFIC PROJECT Grants

Foundation grantSpecific project’s

non-lobbying component

How Project Grant Rule Works

INSUBSTANTIAL PART TEST

1. Default test

2. Lobbying is “insubstantial part” of organization’s activities, but what is “insubstantial”?

3. No clear definition of lobbying or lobbying limits

4. Based on paid and unpaid activities

5. Severe penalties

501(h) EXPENDITURE TEST

1. One-time election – IRS Form 5768

2. Definition of lobbying

3. Dollar-based lobbying limits

4. Only expenditures count

5. Less severe penalties

HOW MUCH LOBBYING FOR

PUBLIC CHARITIES/FOUNDATIONS?

DIRECT

Communication

Legislator

Expresses a view

about specific

legislation

GRASSROOTS

Communication

General public

Expresses a view

about specific

legislation

Call to action

LOBBYING for

organizations

using 501(h)

DIRECT

communication

legislator

expresses a view

about specific

legislation

GRASSROOTS

communication

general public

expresses a view

about specific

legislation

call to action

State Legislators

U.S. Legislators

County Board

of

Supervisors,

City Council

And…

DIRECT

Communication

Legislator

Expresses a view

about specific

legislation

GRASSROOTS

Communication

General public

Expresses a view

about specific

legislation

Call to action

President, governor, mayor, or other executive official who

participates in the formulation of legislation.

DIRECT

communication

legislator

expresses a view

about specific

legislation

GRASSROOTS

communication

general public

expresses a view

about specific

legislation

call to action

NOT LEGISLATORS

school boards

zoning boards

housing authorities

sewer and water districts

other “special purpose bodies”

DIRECT

communication

legislator

expresses a view about

specific legislation

GRASSROOTS

communication

general public



call to action

SPECIAL “LEGISLATOR” RULEMembers of the general public are “legislators.”

Ballot Measures

▪ ballot initiatives

▪ referenda

▪ constitutionalamendments

▪ bond measures

DIRECT

communication

legislator



GRASSROOTS

communication

general public



call to action

regulations

enforcement of existing laws

NOT SPECIFIC LEGISLATION

executive orders

litigation

CALL TO ACTION

DIRECT

communication

legislator

expresses a view

about specific

legislation

GRASSROOTS

communication

general public

expresses a view

about specific

legislation

call to action

DIRECT

communication

legislator

expresses a view

about specific

legislation

GRASSROOTS

communication

general public

expresses a view

about specific

legislation

call to action

TELLING TO CONTACTlegislator(s)

PROVIDING ADDRESS,telephone number, and/or other

contact information of legislator(s)

PROVIDING MECHANISMto enable communication

with legislator(s)

IDENTIFYINGlegislator(s)

DIRECT

communication

legislator

expresses a view

about specific

legislation

GRASSROOTS

communication

general public

expresses a view

about specific

legislation

call to action

NOT LOBBYING

DIRECT

communication

legislator

expresses a view

about specific

legislation

GRASSROOTS

communication

general public

expresses a view

about specific

legislation

call to action

NOT calls to action:

“Learn more!”

“Take action!”

“Support our efforts!”

“Get involved!”

SPECIFIC LEGISLATION

ISSUE: ESEA Reauthorization

The August recess isn’t meant for playtime!Ask Congress to include crucial civil rights

prioritiesin the Elementary and Secondary Education Act.

ISSUE: Civil Rights Protections in Schools

NOT SPECIFIC LEGISLATION

Ensure equal opportunity in education for all children.

Support civil rights protectionsfor underserved students.

LOBBYING EXCEPTIONS

nonpartisan analysis, study, or research

request for technical assistance

self-defense

examinations and discussions of broad

social, economic, and similar problems

MUST

represent full and

fair discussion

be broadly

disseminated

NONPARTISAN ANALYSIS

MAY

express a view

contain indirect

call to action

limit subsequent

grassroots

lobbying

MUST

Full and Fair

Discussion

Broadly

Disseminated

MAY

Express a View

Indirect Call to

Action

Subsequent

Grassroots

Lobbying

Presumed to be GRASSROOTS Lobbying

Non-lobbying

advocacy

communications

or research

materials

Future

grassroots

lobbying use

(adding a

call to action)

+

IRS

presumption:

Grassroots

lobbying

expenditure

MUST

Full and Fair

Discussion

Broadly

Disseminated

MAY

Express a View

Indirect Call to

Action

Subsequent

Grassroots

Lobbying

SAFE Harbors

Non-lobbying distribution

greater than

lobbying distribution

OR

Grassroots use is six-

months after expenditure

was made

TECHNICAL ASSISTANCE

MUST BE

invited in writing on

behalf of committee

available to all members of

committee

MAY

express a view on Specific legislation

SELF-DEFENSE

MUST

RELATE TO

powers and duties

tax-exempt status

deductibility of contributions

SHOULD

consult with attorney

ANALYSIS + DISCUSSIONS

NO SPECIFIC

LEGISLATION

blue ribbon panel

annual reports

early stages of policy

development

NO CALL

TO ACTION

communication does not include

call to action

Restricting public charity

grantees from lobbying is not

necessary

Grant AGREEMENTS

State whether specific

project grant or general

support grant

State that the grant is

not earmarked for

lobbying

NONPARTISAN

ELECTORAL ACTIVITIES

Election-related Activity KEY POINTS:

Nonprofits can and should engage their

communities around elections

Keep activities nonpartisan: no supporting or

opposing candidates

Can educate voters and encourage voting, but

should not say who to vote for. See special rules

for private foundations on voter reg.

Public foundations can support or oppose ballot

measures within lobbying limits; Private

foundations create taxable expenditure when

funding ballot measure work

No 501(c)(3) support for or

opposition to CANDIDATES

running for PUBLIC OFFICE

Who is a “CANDIDATE for

PUBLIC OFFICE”?

?

CHARACTERISTICS

Office created by

statute

On-going position

Fixed term

Requires oath of

office

Includes School

Boards

For any

public office

Rules that apply to

print and verbal

communications also

apply to ONLINE

COMMUNICATIONS

INDIVIDUAL

PARTISAN

ELECTORAL

ACTIVITIES

Personal

Capacity Only

Not on

Company Time

Organization

Cannot Ratify Acts

Have a Policy

What is NON-PARTISAN?

FACTS and CIRCUMSTANCES

Election Year Activities

Issue Advocacy

Advocating for organization’s issues during election year

Voter Education

Educating voters in a nonpartisan way about candidates

Candidate Education

Helping candidates understand the importance of your issues

Voter Outreach

Registering voters, getting out the vote

Ballot Measures

Support or oppose state or local ballot measures

LOBBYING or advocacy campaigns

ISSUE ADVOCACY

Lobbying/Advocacy

Campaigns

Criticizing Incumbents

Candidate Education

SUPPORTING OR

CRITICIZING

INCUMBENTS

Focus on

Legislative Issues

Continue Ongoing

Support/Criticism

Don’t

Support/Criticize

Personal

Characteristics

CRITICIZING

OR SUPPORTING INCUMBENTS

LEGISLATIVE SCORECARDS

PUBLIC

publishedregularly

includes all legislators

broad range of issues

avoidscommentary

MEMBERS

publishedregularly

includes all legislators

narrow range of issues

commentaryallowed

CANDIDATE

EDUCATION

offer to all

use only what is already

gathered

only create new information if organization

has reason to do so

QUESTIONS

unbiased questions

open-ended questions

distribute to all candidates

broad rangeof issues

no pledges

FORMATTING

no editing

present responses

equally

disclaimers

DEBATES

& FORUMS

VOTER EDUCATION

candidate questionnaires

candidate debates and

forums

candidate appearances

appearances unrelated to

candidacy

QUESTIONS

unbiased questions

broad range of issues

FORMAT

invite all viable candidates

fair rules

impartial moderator

unbiased audience

equal opportunity

no contextual favoritism

CANDIDATE

APPEARANCES

VOTER EDUCATION


candidate debates & forums



candidacy

CANDIDATE

APPEARANCES

equal opportunity

required

no contextual favoritism

invite all viable candidates

APPEARANCE

UNRELATED

TO CANDIDACY

VOTER EDUCATION


candidate debates and

forums



candidacy

APPEARANCE

UNRELATED TO

CANDIDACY

awards and policy updates

no equal opportunity

required

avoid mentioning candidacy

don’t time to coincide with

election

disclaimers and letters

no reference to party/candidate

no suggestion of who to vote for

make service available to everyone

targeting for nonpartisan reason

VOTER REGISTRATION

PUBLIC

FOUNDATIONS

May conduct and

fund nonpartisan

voter registration

drives

PRIVATE

FOUNDATIONS

May NOT fund

voter registration

drives, unless they

do so in five or

more states, in

multiple election

cycles VOTER REGISTRATION

Funding VOTER REGISTRATION

DRIVES

Project funded must be:

Sponsored by a 501(c)(3) organization

Nonpartisan

Not confined to one specific election

cycle

Conducted in 5 or more states

Run by a group that meets additional

rules related to the diversity of its funding

NOT 501(c)(3) Permissible

Endorse Candidates

explicitly or implicitly favor or oppose a candidate

Candidate Pledges

ask candidates to sign pledges to support your issue

Contribute to Candidates

donate money, goods, or services to candidates

Expressly Advocate

distribute communications that urge a vote for/against candidate

Partisan Voter

Registration & GOTV

registration and GOTV targeting based upon party affiliation

Criticize Candidates

Around Election

increase criticism of candidate in proximity of election

For more information

WEST COASTOakland, CA EAST COAST

Washington, DC

866-675-6229

[email protected]

www.bolderadvocacy.org

@AFJBeBold | @IsaiahAFJ

www.facebook.com/BolderAdvocacy

TEXASDallas, TX

Los Angeles, CA

Rules that apply to print and verbal

communications also apply to

ONLINE COMMUNICATIONS

Rules that apply to print andverbal communications also apply

to online communications.

You can – and should – use your social media sites for lobbying.

c3s should not use social media to support or oppose candidates.

c4s can use social media toendorse or oppose candidates.

No support for or opposition tocandidates running for public office.

… but you can use social mediato address comments

a candidate has made.

(Remember tostay focused on the issueand not the candidacy.)

If you’re a c4 or a PAC,you can address a candidate’s

fitness for office.

ISSUE ADVOCACY

lobbying/

advocacy

campaigns

criticizing

incumbents

candidate

education

You can friend theofficial Facebook page

of an incumbent.

On the other hand,the campaign page…

Keep it personal.

INDIVIDUAL

PARTISAN

ELECTORAL

ACTIVITIES

Personal

Capacity Only

Not on

Company Time

Organization

Cannot Ratify Acts

Have a Policy

Have a policy.

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