LOBBYING Q & A FOR NONPROFITS
Kirk E. Harris, J.D., Ph.D., and Ignacio Lopez
Many family support programs are restricted in their advocacy efforts
by their funding sources and by the laws governing nonprofits. A number
of restrictions rule out lobbying either in general or in certain forms.
Figuring out what is and is not allowable can seem complicated, but
below are some basic guidelines to help you play by the rules.
What is lobbying?
In general, you are lobbying if you issue any communication, written
or verbal, intended to influence specific legislation.
What is considered legislation?
Legislation is defined as action by a legislative body, including the
introduction, amendment, defeat, or repeal of Acts, bills, resolutions
or similar items. This includes:
-
Actions by Congress, state legislatures, or similar
local legislative bodies
-
Actions by the general public in the form of referendum
questions, initiative petitions, or proposed constitutional amendments
-
Senate confirmations of executive and judicial
branch nominees
-
Proposed treaties requiring Senate approval
What is not considered legislation?
Judicial, executive, and administrative bodies (such as school and
zoning boards) are not legislative bodies, and their actions are not
considered legislation.
Is all lobbying out of the question for nonprofits?
You should consult your funders to obtain written policies regarding
lobbying restrictions that apply to you. Once you know what is not
allowed, you should be able to find acceptable ways to conduct advocacy
activities that do not conflict with the rules. For example:
You are lobbying if you...
Notable exceptions to the rules regulating the lobbying
efforts of nonprofits are described below. In addition, regulations
often distinguish between different kinds of lobbying.
What is direct lobbying?
Activities are considered direct lobbying if they involve all of the
following:
-
Communicating directly to a legislator, employee
of a legislative body, or any other government employee who may
participate in the formulation of legislation
-
Referring to specific legislation (even without
including the bill's name and number)
-
Expressing a view on the legislation
In addition, direct lobbying occurs when an organization
asks its members to take part in the above-described activities. For
example:
You are engaged in direct lobbying if you...
-
Meet with a Congressperson and mention your organization's
support of pecific legislation
-
Send a letter to your organization's members urging
them to contact their legislators in support of a specific bill
What is grassroots lobbying?
You are involved in grassroots lobbying if you issue communication
that does both of the following:
Communication of this type could provide recipients
with information on how to contact legislators or employees of legislative
bodies. It could also provide a petition, postcard, or similar way
for recipients to contact legislators or their employees. For example:
You are engaged in grassroots lobbying if you...
What does not qualify as lobbying?
If your activities fall into one of the categories below, they can
be considered exceptions to the rules prohibiting lobbying by nonprofits:
Nonpartisan Analysis, Study, or Research
In order to qualify for this exception, a communication must meet
a content and distribution test. While nonpartisan analysis, study,
or research may take a particular viewpoint, the content test requires
that it also provide a sufficiently full and fair exposition of the
underlying facts to enable a member of the general public to form
an independent opinion or conclusion about the subject. Mass media
communications and fact sheets rarely present enough detail to qualify.
To satisfy the distribution test, the communication must be made available
to the general public, a segment of the general public, or governmental
bodies or employees. It is not enough to distribute a communication
to your members and other similar organizations.
Examinations and Discussions of Broad Social,
Economic, and Similar Problems
To fall within this exception, communications that address the public,
members of legislative bodies, or governmental employees on general
topics that are also the subject of specific legislation must not
refer to specific legislation or directly encourage recipients to
take action.
Requests for Technical Advice or Assistance
To qualify for this exception, a communication must be in response
to a written request by a legislative body, committee, or subcommittee
and must be made available to all members of the requesting body.
Self-Defense Communications
To be considered "self-defense," a communication must be
with a legislative body regarding possible actions of that body that
could affect the organization's existence, powers, duties, or tax-exempt
status or the deductibility of contributions to the organization.
As long as the subject matter of the communication is limited to these
specific areas, an organization may communicate with legislative bodies,
their staff, or even their individual members, and may also make expenditures
to initiate legislation dealing with these specific topics.
Finally, communications made primarily to an organization's
members that refer to and reflect a view on specific legislation,
but do not directly encourage members to engage in either direct or
grassroots lobbying, are not considered lobbying.
Kirk Harris, J.D., Ph.D., is associate executive director
and general counsel for Family Support America.
Ignacio Lopez is senior communications associate for
Family Support America.
The information in this article is drawn from Being
a Player: A Guide to the IRS Lobbying Regulations for Advocacy Charities,
by Harmon, Curran, Gallagher & Spielberg (Washington, D.C.)
|
