Public Policy & Advocacy: How Foundations & Grantees - - PowerPoint PPT Presentation

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 Foundation 501(c)(4)/ (5)/(6)

Examples Tax Treatment Lobbying Activities Electoral Activities

Contributions tax-deductible

Tax-Exempt Tax-Exempt UNLIMITED Cannot support or

• ppose 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

• ppose 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

PRIVATE FOUNDATION PUBLIC CHARITY/COMMUNITY FOUNDATION

prohibited for all c3s prohibited for all c3s lobbying subject to limits unlimited special rules for voter registration lobbying subject to tax

partisan political lobbying

nonpartisan political & 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 SUPPORT

Grant “Safe Harbor”

Private foundation is not legally responsible for its grantee’s lobbying Private foundation does not EARMARK grant

and…

≤ SPECIFIC PROJECT Grants

Foundation grant

Specific project’s non-lobbying component

How Project Grant Rule Works

INSUBSTANTIAL PART TEST 1. Default test 2. Lobbying is “insubstantial part” of

• rganization’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

• rganizations

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

• f

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

• ther “special purpose bodies”

DIRECT communication legislator expresses a view about specific legislation GRASSROOTS communication general public expresses a view about specific legislation call to action

SPECIAL “LEGISLATOR” RULE

Members of the general public are “legislators.”

Ballot Measures

▪

ballot initiatives

▪

referenda

▪

constitutional amendments

▪

bond measures

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

DIRECT communication legislator expresses a view about specific legislation GRASSROOTS communication general public expresses a view about specific legislation 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

DIRECT communication legislator expresses a view about specific legislation GRASSROOTS communication general public expresses a view about specific legislation call to action

TELLING TO CONTACT legislator(s) PROVIDING ADDRESS, telephone number, and/or other contact information of legislator(s) PROVIDING MECHANISM to enable communication with legislator(s) IDENTIFYING legislator(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 priorities in 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 protections for 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

• r 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

• n 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

• f 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

• pposing 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

• pposition 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

• ffice

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

• r 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

SUPPORTING OR CRITICIZING INCUMBENTS Focus on Legislative Issues Continue Ongoing Support/Criticism Don’t Support/Criticize Personal Characteristics

CRITICIZING OR SUPPORTING INCUMBENTS

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

published regularly includes all legislators broad range

• f issues

avoids commentary

MEMBERS

published regularly includes all legislators narrow range

• f issues

commentary allowed

CANDIDATE EDUCATION

• ffer to all

use only what is already gathered

• nly create new

information if

• rganization

has reason to do so

QUESTIONS unbiased questions

• pen-ended

questions distribute to all candidates broad range

• f issues

no pledges FORMATTING no editing present responses equally disclaimers

QUESTIONS unbiased questions

• pen-ended

questions distribute to all candidates broad range

• f 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 questionnaires candidate debates & forums candidate appearances appearances unrelated to candidacy

CANDIDATE APPEARANCES equal

• pportunity

required no contextual favoritism invite all viable candidates

APPEARANCE UNRELATED TO CANDIDACY

VOTER EDUCATION candidate questionnaires candidate debates and forums candidate appearances appearances unrelated to candidacy

APPEARANCE UNRELATED TO CANDIDACY awards and policy updates no equal

• pportunity

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 COAST Oakland, CA EAST COAST Washington, DC

866-675-6229 isaiah@afj.org www.bolderadvocacy.org @AFJBeBold | @IsaiahAFJ www.facebook.com/BolderAdvocacy

TEXAS Dallas, TX Los Angeles, CA

Rules that apply to print and verbal communications also apply to

ONLINE COMMUNICATIONS

Rules that apply to print and verbal 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 to endorse or oppose candidates.

No support for or opposition to candidates running for public office.

… but you can use social media to address comments a candidate has made. (Remember to stay focused on the issue and 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 the

• fficial Facebook page
• f 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.