Transcript Introduction to Advocacy Course
Introduction to Advocacy and Public Policy
Presenter INSERT NAME INSERT ORGANIZATION NAME
Agenda for Session
Setting the stage for nonprofit advocacy as a best practice in the Standards for Excellence: An Ethics and Accountability Code for the Nonprofit Sector® Lobbying vs. advocacy Developing an advocacy policy Allowable lobbying activity Federal, state, and local rules Remaining nonpartisan Accurate reporting on state disclosure reports and Form 990
The Standards for Excellence® Code
8 Principles & 55 Standards Mission and Program Governing Body Conflict of Interest Human Resources Financial & Legal Openness Fundraising Public Policy & Public Affairs
The Standards for Excellence® Code
A blueprint for well managed and responsibly governed nonprofit organizations
The Standards for Excellence® Code
Educational resources to help you build a stronger, more attractive and sustainable nonprofit institution.
Is lobbying even permitted for nonprofits?
There is a myth out there that nonprofit organizations are prohibited from lobbying elected officials. This is simply not true.
Nonprofit organizations often exist to serve the underserved. Nonprofits provide a voice and can truly help educate and advocate for those they serve.
Lobbying vs. Advocacy
What is the difference between advocacy and lobbying?
Nonprofit leaders often confuse these terms.
Advocacy
is defined as active support for a cause, idea or policy.
Lobbying
generally consists of communications that are intended to influence specific legislation
Advocacy vs. Lobbying
Public Education Media and Messaging Campaigns Litigation Organizing Activities Protests & Marches Normally Defined by Statute State and Local Laws May Vary From IRC Provisions Usual Key Elements: Communication, Subject Matter & Money
Developing an Advocacy Policy
Planning considerations: 1 - What are the criteria or factors that determine the broad interest/ issue areas where your organization may become involved in policy advocacy? 2 – Who needs to be involved in making these decisions? 3 – How will this process be accountable to the Board?
4- How often do you need to consider positions on issues?
Developing an Advocacy Policy
Additional considerations:
1 – Mission:
Is the issue related to the organization’s ability to meet its mission?
2 – Impact:
Are there aspects of the issue that affect the interests of the nonprofit organization (and/or its clients) in a significantly different way than the interests of the community at large?
Developing an Advocacy Policy
Additional considerations:
3 – Consensus:
Is there, or do you reasonably anticipate that there will be, at least a general consensus among the members or constituents of the organizations on the position to be taken?
4 – Credibility:
Would your organization be perceived as a legitimately concerned and appropriate advocate for the position to be taken?
Developing an Advocacy Policy
Additional considerations: 5
– Flexibility:
Will the policy provide flexibility for a subset of the government relations or public policy committee to make decisions and/or speak on behalf of the whole group when time or circumstances do not permit additional process.
Sample Advocacy Policy #1
1 - Each year (Every two years, every five years), the ABC Nonprofit Public Policy Committee will survey the membership of the organization to develop a list of suggested public policy priorities for the upcoming year. Based on this input and input from ABC’s Board of Directors, the Public Policy Committee decides priority issues, and ranks such issues in order of importance.
Sample Advocacy Policy #1
2 - The priority issues serve to establish the public policy framework. The board of directors must approve the public policy framework.
3 - All advocacy activities for [the selected time frame] should fall under the current priority issues.
Sample Advocacy Policy #1
4 - In circumstances where immediate public policy attention is required, the chair of the public policy committee, and the Executive Committee may make decisions on behalf of the entire Public Policy Committee for ABC Nonprofit on specific bills and issues.
5 - Only the board president, the executive director, and the chair of the public policy or government relations committee may speak on behalf of ABC Nonprofit or take action on local, state, or federal public policy issues.
Sample Advocacy Policy #1
6 - ABC Nonprofit is a nonprofit organization. As such, ABC Nonprofit does not support or oppose candidates for public office or political parties and only acts on issues related to the organization’s mission and its current public policy framework.
Sample Advocacy Policy #2
I. General statement
In order to work toward making systematic change necessary to achieving our mission, ABC Nonprofit engages in advocacy activity or
active support for a cause, idea, or policy.
It is the policy of ABC Nonprofit to advocate on public policy issues that support the mission of the organization, such as: x, y, and z.
Sample Advocacy Policy #2
II. Criteria for Public Policy Positions
ABC Nonprofit may take positions on public policy issues, which fulfill three basic criteria: Affects ABC Nonprofits’ ability to work toward its mission
OR
Affects ABC Nonprofits’ clients or program participants
OR
Affects the nonprofit status or operations of ABC Nonprofit
Sample Advocacy Policy #2
III. Process for determining positions
CHOOSE ONE:
(1) Advocacy positions on specific issues will be determined on a case by case basis by consensus of the (executive committee of the) board.
OR
(2) Advocacy positions on specific issues related to the mission of ABC Nonprofit will be determined by the executive director, and in his/her absence, may be determined by the deputy director.
OR
Sample Advocacy Policy #2
(3) As delegated by the ABC Board of Directors, ABC Nonprofit’s Public Policy Committee assesses issues of potential interest and concern to determine if such issues should become subjects for advocacy for the organization. The Public Policy Committee may delegate its decision-making authority to a designated staff person
. OR
(4) Each year, ABC Nonprofit surveys its members and clients on a series of potential public policy issues for which it may become involved. Based on results of surveys, related research and comments from members, clients, and staff, ABC’s Board/Staff/Public Policy Committee determine advocacy positions for the year.
Sample Advocacy Policy #2
.
IV. Concerning participation on coalitions
(1) In ABC Nonprofit’s work with coalitions and associations, ABC Nonprofit may take part in the advocacy work of a group provided the work is not in conflict with ABC Nonprofit’s mission.
(2) ABC Nonprofit conducts its advocacy work through coalitions and networks such as: X, Y, and Z.
Sample Advocacy Policy #2
V. ABC Nonprofit is nonpartisan in its activities.
Clients of ABC Nonprofit represent a broad cross-section of the political spectrum. ABC Nonprofit does not support one candidate over another candidate; and does not support any political parties. Maryland Nonprofits works with both political parties in legislative efforts. If we ask one candidate for office to speak at events or conferences, an invitation is extended to any opposing candidates as well.
Limited Advocacy Policy
ABC Nonprofit does not pursue public policy advocacy as part of its regular program activities. We recognize, however, that as a leader in our field, we are occasionally (regularly) called upon by government officials, members of the media and others to offer positions on policy issues affecting the recipients of our services or to share knowledge and expertise relevant to ongoing policy deliberations. ABC Nonprofit is also called upon to sign on to formal and informal coalitions that advocate for the interests of our clients.
The Executive Director may authorize participation in such activities when s/he determines such participation is consistent with the mission of ABC Nonprofit and that the interests of the clients are sufficiently clear. Where participation is warranted, the Executive Director shall be responsible to determine the nature and extent of participation, including the positions to be stated or information to be shared.
Allowable Lobbying Activity
What is allowed under the law?
Federal State Local
Allowable Lobbying Activity Federal Lobbying Limits
2 options Insubstantial Part Test 501(h) Election Expenditure Test
Allowable Lobbying Activity Federal Lobbying Limits
Insubstantial Part Test
26 U.S.C. § 501(c)(3); 26 C.F.R. § 1.501(c)(3)-1(b)(3)(i) Default Test Lobbying must be an “insubstantial part” of overall activities Include cost-free activities when determining if substantial
Allowable Lobbying Activity Federal Lobbying Limits
501(h) Expenditure Test
26 U.S.C. § 501(h); 26 C.F.R. §1.501(h) Elect by one-time filing of Form 5768 Clear dollar-based limits Only expenditures count towards limits Clear definition of lobbying
Allowable Lobbying Activity Federal Lobbying Limits
501(h) Expenditure Test
26 U.S.C. § 501(h); 26 C.F.R. §1.501(h) This step allows 501(c)(3) organizations take advantage of the clear definitions and generous limits on lobbying that were added to the Internal Revenue Code in 1976. These rules are sometimes called “the expenditure test” Only expenditures count towards limits Eligible organizations that make the election do so without changing their 501(c)(3) status
Allowable Lobbying Activity Federal Lobbying Limits
501(h) Expenditure Test
Making the election simply requires filing Form 5768, “Election/Revocation of Election by an Eligible 501(c)(3) . Organizations to Make Expenditures to Influence Legislation” Available at www.irs.gov
Allowable Lobbying Activity Federal Lobbying Limits
501(h) Expenditure Test
The single-page form calls for the organization’s name, address, and first tax year to which it wants the election to apply. It requires only the signature of the authorized officer, usually the president or treasurer.
Allowable Lobbying Activity Federal Lobbying Limits -501(h)
1) 2) 3) Calculate organization’s “Exempt Purpose Expenditures” BUDGET for most groups Overall lobbying limit is: 20% of first $500,000 plus 15% of next $500,000 plus 10% of next $500,000 plus 5% of the remaining expenditures Grassroots lobbying limit is 25% of overall limit
$1 million cap on total lobbying expenditures
Allowable Lobbying Activity Elements of Direct and Grassroots Lobbying
Direct Lobbying Grassroots Lobbying
Communication Communication Legislator Expressing a View Specific Legislation
General Public
Expressing a View Specific Legislation
Call to Action
26 C.F.R. § 56.4911-2(b)(2)
Total Lobbying Limits for Sample 501(c)(3) making (h) election with $2 million. budget Direct Lobbying Maximum Total Lobbying: Education & Non Lobbying Advocacy
Total Lobbying Amount: $250,000 Grassroots Lobbying Amount: $62,500
Grassroots (max. ¼ of total lobbying) Grassroots + Direct 12.5%
Allowable Lobbying Activity Definitions of Legislators
Members of special purpose boards are NOT legislators
Planning Commissions
Zoning Commissions
School Boards
26 C.F.R. § 56.4911-2(d)(4)
Allowable Lobbying Activity Ex. of Lobbying Communications
More than just conversations, letters, email….
Effects of 501(h) Election LIMITS
501(h) Electing
Sliding scale of limits on exempt purpose expenditure: 20% of 1 st $500,000 plus 15% of next $500,000 plus 10% of next $500,000 plus 5% of remaining expenditure $1 million limit
Not Electing 501(h)
Substantial lobbying using a subjective balancing test, including: Importance of lobbying to organization’s circumstances Actual lobbying expenditures and activities, including volunteer Overall spending and activity level
Effects of 501(h) Election LIMITS
501(h) Electing
No limit on volunteer activity
Not Electing 501(h)
Volunteer activities are included in determination of activities Source: Worry Free Lobbying for Nonprofits, Alliance for Justice, Charity Lobbying in the Public Interest
Effects of 501(h) Election EXCLUSIONS FROM LOBBYING
501(h) Electing
Responses to legislative bodies requesting information Nonpartisan analysis that presents all sides of an issue Defending against direct challenges to organization’s existence Broad examination of social issues
Not Electing 501(h)
No specific exclusions Source: Worry Free Lobbying for Nonprofits, Alliance for Justice, Charity Lobbying in the Public Interest
Effects of 501(h) Election RECORD KEEPING
501(h) Electing
Documentation of all expenses, grassroots and direct
Not Electing 501(h)
Documentation of all expenses and activities that could be considered lobbying, including volunteer activities, it is advisable to document non-lobbying volunteer activities for comparison Source: Worry Free Lobbying for Nonprofits, Alliance for Justice, Charity Lobbying in the Public Interest
Effects of 501(h) Election REPORTING
501(h) Electing Not Electing 501(h)
Report on IRS Form 990 Schedule C Part II-A Report on IRS Form 990 Schedule C Part II-B Lobbying Expenditures Detailed description of Percentage of total legislative activities, expenditures including volunteer And related calculations on activities ceilings, maximum Classified schedule of thresholds expenses, paid and incurred Source: Worry Free Lobbying for Nonprofits, Alliance for Justice, Charity Lobbying in the Public Interest
Effects of 501(h) Election REVOCATION OF TAX STATUS Standard
501(h) Electing
Exceeding 150% of limits based on a 4-year moving average
Not Electing 501(h)
Substantial lobbying in any one year Source: Worry Free Lobbying for Nonprofits, Alliance for Justice, Charity Lobbying in the Public Interest
Effects of 501(h) Election PENALTY FOR EXCESSIVE LOBBYING
501(h) Electing
25 % of excess lobbying expenditure
Not Electing 501(h)
5% of total lobbying expenditure if exemption is revoked Directors and officers have no exposure Directors and officers fined penalty of 5% lobbying expenditures if lobbying is found to be willful or unreasonable.
Source: Worry Free Lobbying for Nonprofits, Alliance for Justice, Charity Lobbying in the Public Interest
Effects of 501(h) Election AUDIT
501(h) Electing
The IRS Manual specifically informs examiners that making the election will not be a basis for making an examination
Not Electing 501(h)
No specific guidelines Source: Worry Free Lobbying for Nonprofits, Alliance for Justice, Charity Lobbying in the Public Interest
Allowable Lobbying Activity Federal Lobbying Limits
Who Might Not Want to Elect
Large nonprofits with budgets over $17 million
Allowable Lobbying Activity State Lobbying Limits
See National Conference of State Legislators Catalogue of State Lobbying and Ethics Laws
http://www.ncsl.org/Default.aspx?TabId=1 5352
Allowable Lobbying Activity State Lobbying Limits
Pay particular attention to:
Ethics Regulations
Lobbyist Regulations
Gifts/conflict of interest provisions
Reporting of lobbyists and organizations
Disclosure of activities, finances
State Lobbying Limits Example: Maryland
Legislative
: Registration required if the person communicates in the presence of an official or employee in the legislative or executive branch for the purpose of influencing legislative action and Incurs
expenses of $500
or more
Earns $2,500
or more as compensation from all lobbying employers; or The person is
not in the presence
of an official, but communicates to influence legislation and earns at least $5,000 for all such communication activities during the reporting period
State Lobbying Limits Example: Maryland
Grassroots
: Registration required for any person, group, organization or business that expends
$2,000
to influence legislation (including salaries, contractual employees, postage, etc.) during reporting period
http://ethics.gov.state.md.us
State Lobbying Limits Example: Maryland
Executive Action Lobbying:
Registration Required
IF: The person communicates with any official or employee in the executive branch for the purpose of influencing executive action during the reporting period and the person
expends a cumulative amount of $100 or more
during the reporting period on one or more officials or employees of the executive branch for meals, beverages, special events or
gifts in connection with or for the purpose of influencing executive action.
Any executive action activity is covered by this provision.
State Lobbying Limits Example: Maryland
Executive Action Lobbying:
The person is
compensated $2,500 or more
in a reporting period, from all lobbying employers
cumulatively
, for all such communication and activities relating to the communication or
incurs expenses of $500, per lobbying employer
, or more (other than for personal travel or subsistence) and gets
in the presence
of an official or employee for the purpose of
influencing
executive action relating to the
development or adoption of regulations or the development or issuance of an executive order; OR Earns at least $5,000, from all lobbying employers cumulatively
, as compensation
for all such communication and activities relating to the communication
period, even if
not in-the-actual-presence
during the reporting of officials or employees for these purposes.
State Lobbying Limits Example: Maryland
Maryland Lobbyist Registration:
Reporting Periods
The Lobbying registration year begins November 1 and ends October 31.
The year is divided into two reporting periods – November 1 thru April 30 & May 1 thru October 31.
Reports are required within 30 days of the end of each reporting period.
Training available from the Ethics Commission – posted on their web site.
State Lobbying Limits Example: Delaware
"Lobbyist"
means any individual who acts to promote, advocate, influence or oppose any matter pending before the General Assembly by direct communication with the General Assembly or any matter pending before a state agency by direct communication with that state agency,
and who in connection therewith either:
a. Has received or is to receive compensation in whole or in part from any person; or b. Is authorized to act as a representative of any person who has as a substantial purpose the influencing of legislative or administrative action; or c. Expends any funds during the calendar year for the type of expenditures listed in § 5835(b) of this title.
State Lobbying Limits Example: Delaware
Reportable Expenditures:
(b) A lobbyist shall file separate reports for each employer which the lobbyist represents. Each report shall contain the total expenditures during the reporting period for all direct expenditures, costs or values, whichever is greater, provided for members of the General Assembly or for employees or members of any state agency for the following: (1) Food and refreshment; (2) Entertainment, including the cost of maintaining a hospitality room; (3) Lodging expenses away from home; (4) Fair value of travel if the trip exceeds 100 miles; (5) Recreation expenses; and (6) Gifts or contributions, excluding political contributions as defined in Chapter 80 of Title 15 provided to members of the General Assembly.
- Section 5835 (b) -
State Lobbying Limits Example: Delaware
Exceptions Not Lobbying: If no reportable lobbying is made:
(1) Persons performing professional services in drafting bills or regulations or in advising and rendering opinions to clients as to the construction or effect of proposed, pending or enacted legislation or regulations who do not otherwise act as lobbyists; (2) Persons appearing pursuant to their official duties as employees or elected officials of the State, or any political subdivision thereof, or of the United States, and not as representatives of any other person; moreover, expenditures listed in § 5835 of this title made by such persons or their employers in connection with these official duties shall not qualify such persons as lobbyists under subsection (a)(5)c. of this section; (3) Persons who, in relation to the duties or interests of their employment or at the request or suggestion of their employer, communicate with the General Assembly or a state agency concerning any legislation, regulation or other matter before the General Assembly or such state agency, if such communication is an isolated, exceptional or infrequent activity in relation to the usual duties of their employment
State Lobbying Limits Example: Delaware
More Lobbying Exceptions:
(4) Persons communicating with the General Assembly or a state agency if such communication is undertaken by them as a personal expression and not as an agent of their employers as to matters of interest to a person by whom or by which they are employed and if they receive no additional compensation or reward, in money or otherwise, for or as a result of such communication; (5) Persons testifying at public hearings conducted by the General Assembly or a state agency who do not otherwise act as lobbyists; (6) Persons appearing on behalf of any religious organization with respect to subjects of legislation or regulation that directly relate to the religious beliefs and practices of that organization who do not otherwise act as lobbyists; (7) Attorneys representing clients in administrative adjudications governed by the provisions of subchapter III of Chapter 101 of this title, representing clients before the Tax Appeals Board, or in other administrative procedures where ex parte communications with the state agency with authority over the matter are prohibited; (8) Attorneys representing clients with regard to criminal or civil law enforcement proceedings, or in any judicial proceedings
.
State Lobbying Limits Example: Delaware
Key Points
Compensation is not required – volunteers may be “Lobbyists” “Direct Communication” required to trigger the statute – organizing ‘grassroots’ lobbying doesn’t count “Reportable Expenditures” void the statutory exceptions For volunteers or organization members, the “authorization” and “substantial purpose” elements in the statute are critical Statute not limited to legislative “matters” – scope is broader than Internal Revenue Code regulations
Allowable Lobbying Activity Local Regulations
If you are conducting public policy and lobbying efforts at the local level, you will also want to research relevant local rules and regulations for lobbyists Again, pay particular attention to: Ethics Regulations Lobbyist Regulations Gifts/conflict of interest provisions Reporting of lobbyists and organizations Disclosure of activities, finances
Allowable Lobbying Activity Remaining Nonpartisan
While nonprofit organizations have an opportunity to educate the public and engage in public participation, organizations need to ensure that all participation in community affairs shall be strictly nonpartisan.
Allowable Lobbying Activity Remaining Nonpartisan
What can a 501(c)(3) do?
Issue advocacy Conduct candidate forums/meet the candidate nights with all candidates Send questionnaires to each candidate Voter education Voter registration & get-out-the-vote activities Candidate education
Remaining Nonpartisan Is the activity nonpartisan?
Facts and Circumstances Test Does it look like you are supporting or opposing a candidate for public office?
Remaining Nonpartisan Is the activity nonpartisan?
High Risk Some Risk Low Risk
Remaining Nonpartisan Is the individual’s activity nonpartisan?
Individuals acting in their own capacity can engage in electoral activity
Must be off the clock or on personal leave
Organizations cannot ratify the individual’s acts expressly or by implication
Questions and Answers
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