Campaigning, Advocacy and Lobbying by Public Charities

© 2012 Coblentz, Patch, Duffy & Bass LLP 1

Roundtable Series May 17, 2012

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

Campaigning, Advocacy & Lobbying by

Public CharitiesA Look at Some

“Do”s and “Don’t”sPresented by:

Cynthia R. Rowland


Permitted Activities

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.

Campaigning, Advocacy & Lobbying by Public Charities

A Public Charity may do all of the following:


Permitted Activities with Restrictions

Prepare candidate questionnaires

Publish candidate qualifications

Sponsor candidate debates

Conduct voter registration drives


A Public Charity may do the following with restrictions:



What are Prohibited Political Campaign Activities?

Endorsing a candidate for public office

Urging the public to vote for or against a specificcandidate

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?

Websites, Social Media

Letterhead

Servers and Computing Capacity,

Including Email Addresses

Release Time

And, obviously, cash


Receipt of Educational Materials in

Furtherance of Job Duties

No:

Yes:


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


© 2012 Coblentz, Patch, Duffy & Bass LLP

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)


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.

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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

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Covered City Officials: Any elected official that

Must approve the Contract

Candidate for that office Candidate's

committees.

Covered Contributions: Broadly defined; Includes

Meetings/Fundraising events at home or office of covered party Contracting entity.

Notice: Entity must notify

officers and directors of prohibition prior to commencement of negotiations.

Time Periods: Upon commencement

of negotiations Until termination or 6

months from approval.


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



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


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Roundtable Series May 17, 2012

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

Campaigning, Advocacy & Lobbying by

Public CharitiesA Look at Some

“Do”s and “Don’t”sPresented by:

Cynthia R. Rowland

Campaigning, Advocacy and Lobbying by Public Charities

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