Campaigning, Advocacy and Lobbying by Public Charities

able Series May 17, 2012

Campaigning,
Advocacy &
Lobbying by
Public Charities
A Look at Some
“Do”s and “Don’t”s
Presented by:
Cynthia R. Rowland

Coblentz, Patch, Duffy & Bass LLP www.coblentzlaw.com
© 2012 Coblentz, Patch, Duffy & Bass LLP 1

Campaigning, Advocacy & Lobbying by Public Charities

Permitted Activities

A Public Charity may
do all of the following:
 Engage in limited lobbying, including
ballot measure advocacy.
 Conduct public education and training
about participation in campaigns.
 Educate candidates.
 Canvass or poll the public on issues.



Permitted Activities with Restrictions

A Public Charity may
do the following
with restrictions:
 Prepare candidate questionnaires
 Publish candidate qualifications
 Sponsor candidate debates
 Conduct voter registration drives



What are Prohibited Political Campaign
Activities?
 Endorsing a candidate for public office
 Urging the public to vote for or against a specific
candidate
 Contributing money to an election campaign
 Forming or supporting a political action
committee (PAC)
 Providing mailing lists to candidates
 “Scoring” or “Grading” candidates
 Providing campaign workers to campaigns
for public office
 Supporting political party platforms
 Linking to candidate or PAC website



Special Issues

 Policy Advocacy vs. Campaign
Intervention
 Communications
 Personal Actions of Directors, Officers
and Employees
 Use of Charity Resources
 Federal Election Campaign Rules,
State and Local Laws
 San Francisco – Contributions from
Officers and Directors



What Types of Communications Do I Need
to Worry About?

 All Communications, Including
Advocacy, Fundraising and
Educational
 Credible Disclaimer
 Watch Out For
Distorted Facts
Code Words
Emotional Appeals
Unsupported by
Reasoned Analysis



Do I Have The Personal Right to Campaign
for a Candidate?
 Official Functions
 No Campaign Activity Allowed
 Other Functions
 Identification Only

“Organization shown for identification
purposes only; no endorsement by
the Organization is implied.”



What Charity Resources May I Use for
Campaign Activity?
No:
 Websites, Social Media
 Letterhead
 Servers and Computing Capacity,
Including Email Addresses
 Release Time
 And, obviously, cash
Yes:
 Receipt of Educational Materials in
Furtherance of Job Duties


Candidate Questionnaires/Voter Guides

All Facts and Circumstances
 Clear and unbiased in structure and
content
 Questions to candidates identical to
questions in guide
 Candidate explanations included; yes/no
not favored by IRS
 Unedited responses
 All candidates for office included
 Appropriate scope


Candidate Appearances

If Candidate invited to speak as a
Candidate:
 Equal opportunity to all
 No indication of support or opposition
If Forum or Debate, no bias and
 Questions prepared and presented by
independent nonpartisan panel
 Broad range of topics
 Equal opportunity to express views
 No challenge to agree or disagree with
organization’s views
 No moderator comments for/against


Candidate Appearance as Noncandidate
 Speaks solely for reasons other than
candidacy
 Speaks only in noncandidate capacity
 Neither candidate nor any representative
of the organization mentions candidacy
 No campaign activity in connection with
event, before or during
 Maintain nonpartisan atmosphere



Voter Registration and Get Out The Vote

 Must be Nonpartisan
 Facts and Circumstances Test
 Either no candidate or all candidates for a
particular office named without favoring any
candidate over any other
 Name no political party except for identifying the
political party affiliation of all candidates names
 Communications must be limited to urging
voting, registering and describing hours and
places of registration and voting
 All voter registration and get-out-the-vote drive
services are made available without regard to
the voter’s political preference
 Activity actually conducted without favoritism



Voter Registration Drives –Foundations
 Code § 4942(f):
 not confined to one specific election period
 carried on in five or more states
 substantially all income is spent directly for the active
conduct of the activities constituting the exempt
purpose
 substantially all of the support from the public, not more
than twenty five percent (25%) of such support is
received from any one exempt organization, and not
more than half of the support of which is received from
gross investment income
 contributions to which for voter registration drives are
not subject to conditions that they may be used only in
specified States, or that they may be used in only one
specific election period



What Policy Advocacy is OK?

 Within Job Description
 Broad Social, Economic and Similar
Issues
 Not Propaganda
 Not Coded to Oppose or Support a
Candidate



Grant Proposals: Red Flags

 Proposals that are
“nonpartisan”
 Proposals that cover permitted
and impermissible activities:
One bad apple?
 Proposals to influence public
policy (acceptable) by
influencing candidates (not)

© 2012 Coblentz, Patch, Duffy & Bass LLP


Special Case: San Francisco Political
Contribution Prohibition
 For certain contracts with the City, the contracting party is
prohibited from making contributions to officials approving the
contract.
Types of Contracts:
 $50,000 or greater annually;
 the sale or lease of any land or building; or
 a grant, loan or loan guarantee, among others.

Contracting Party:
 Contracting entity;
 Entity’s Officers;
 Entity’s Directors.



Special Case: San Francisco Political
Contribution Prohibition
Covered City Officials: Covered Contributions:
 Any elected official that  Broadly defined;
Must approve the  Includes
Contract Meetings/Fundraising
 Candidate for that office events at home or office
 Candidate's of covered party
committees. Contracting entity.
Time Periods: Notice:
 Upon commencement  Entity must notify
of negotiations officers and
 Until termination or 6 directors of
months from prohibition prior to
approval. commencement
of negotiations.



Introduction to Legislative Lobbying

 IRC 501(h) Election
 No “Substantial Part” of Activities
 Objective Test If Election Made

 What is Legislation?
 Grass Roots vs. Direct
 Exempt Purpose Expenditures



The “No Substantial Part” Test

 Entirely Subjective
 No bright lines, no safe harbor
 Case law suggests 5%
 Not measured by expenditures

© 2012 Coblentz, Patch, Duffy & Bass LLP


Disclosure



What is “Direct Lobbying”?

 Directed to a Legislator or
Government Official
 Refers to Specific Legislation
 Reflects a View on Such Legislation
 Note: Ballot Initiative “Legislator” is
The Public



What is “Grass Roots Lobbying”?

 Refers to Specific Legislation
 Reflects a View on Such Legislation
 Encourages the Recipient of the
Communication to Take Action
With Respect to the Legislation



What is NOT Lobbying?

 Nonpartisan Analysis, Study and
Research
 Broad Social, Economic and Similar
Problems
 Requests for Technical Advice
 Self-Defense
 Administrative Rules and Regulations
 Advocacy Communications



What is an Example of an Advocacy
Communication?



What is an Example of a Grass Roots
Lobbying Communication?



Resources for More Information

 Internal Revenue Service www.irs.gov/charities
 Alliance for Justice www.afj.org

476532


ble Series May 17, 2012

Campaigning,
Advocacy &
Lobbying by
Public Charities
A Look at Some
“Do”s and “Don’t”s
Presented by:
Cynthia R. Rowland

Coblentz, Patch, Duffy & Bass LLP www.coblentzlaw.com

Campaigning, Advocacy and Lobbying by Public Charities

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