the importance of public policy & advocacy...the importance of public policy & advocacy: how...
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The Importance of
Public Policy & Advocacy:
How Foundations & Grantees
Leverage Impact with Advocacy
@AFJBeBold
Isaiah Castilla, Counsel
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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?
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501(c)(3)
Private Foundation501(c)(4)/
(5)/(6)
Examples
Tax Treatment
LobbyingActivities
ElectoralActivities
Contributions tax-deductible
Tax-Exempt Tax-Exempt
UNLIMITED
Cannot support or oppose 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 oppose a candidate
for office
LIMITED
Insubstantial Part or 501(h)
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Public Charities may LOBBY
Must stay within limits set by the IRS
Insubstantial part
test
OR
501(h) expenditure
test
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Private Foundations Tax on
Lobbying
Private foundations
pay tax on
lobbying
expenditures 20% on foundation;
5% on managers
100% on
foundation; 50% on
managers
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ADVOCACY STOPLIGHT
PRIVATEFOUNDATION
PUBLICCHARITY/COMMUNITY
FOUNDATION
prohibitedfor all c3s
prohibitedfor all c3s
lobbying subject to limits
unlimitedspecial rules for voter registration
lobbying subject to tax
partisanpolitical
lobbying
nonpartisanpolitical & other
advocacy
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Private Foundation Lobbying KEY
POINTS:
▪ ENGAGING IN LOBBYING
▪ SUPPORTING LOBBYING
▪ GIVING GENERAL SUPPORT GRANTS
▪ SPECIAL PROJECT GRANTS
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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).
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General
Support
Grants
Specific
Project
Grants
Private foundations should not
EARMARK grants for lobbying
but…
Private foundations
may FUND grantees that lobby
$$$
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A public charity or a
community/public
foundation may EARMARK a
grant for lobbying, but must count the grant
against its own LOBBYING
LIMIT
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EARMARKED for Lobbying?
Private
foundations
Public charities /
foundations
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"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.”
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GENERAL SUPPORTGrant “Safe Harbor”
Private foundation is not legally
responsible for its grantee’s
lobbying
Private foundation
does not EARMARK grant
and…
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≤
SPECIFIC PROJECT Grants
Foundation grantSpecific project’s
non-lobbying component
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How Project Grant Rule Works
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INSUBSTANTIAL PART TEST
1. Default test
2. Lobbying is “insubstantial part” of organization’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?
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DIRECT
Communication
Legislator
Expresses a view
about specific
legislation
GRASSROOTS
Communication
General public
Expresses a view
about specific
legislation
Call to action
LOBBYING for
organizations
using 501(h)
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DIRECT
communication
legislator
expresses a view
about specific
legislation
GRASSROOTS
communication
general public
expresses a view
about specific
legislation
call to action
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State Legislators
U.S. Legislators
County Board
of
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
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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
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NOT LEGISLATORS
school boards
zoning boards
housing authorities
sewer and water districts
other “special purpose bodies”
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DIRECT
communication
legislator
expresses a view about
specific legislation
GRASSROOTS
communication
general public
expresses a view about
specific legislation
call to action
SPECIAL “LEGISLATOR” RULEMembers of the general public are “legislators.”
Ballot Measures
▪ ballot initiatives
▪ referenda
▪ constitutionalamendments
▪ bond measures
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DIRECT
communication
legislator
expresses a view about
specific legislation
GRASSROOTS
communication
general public
expresses a view about
specific legislation
call to action
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DIRECT
communication
legislator
expresses a view about
specific legislation
GRASSROOTS
communication
general public
expresses a view about
specific legislation
call to action
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DIRECT
communication
legislator
expresses a view about
specific legislation
GRASSROOTS
communication
general public
expresses a view about
specific legislation
call to action
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regulations
enforcement of existing laws
NOT SPECIFIC LEGISLATION
executive orders
litigation
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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
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DIRECT
communication
legislator
expresses a view
about specific
legislation
GRASSROOTS
communication
general public
expresses a view
about specific
legislation
call to action
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DIRECT
communication
legislator
expresses a view
about specific
legislation
GRASSROOTS
communication
general public
expresses a view
about specific
legislation
call to action
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TELLING TO CONTACTlegislator(s)
PROVIDING ADDRESS,telephone number, and/or other
contact information of legislator(s)
PROVIDING MECHANISMto enable communication
with legislator(s)
IDENTIFYINGlegislator(s)
DIRECT
communication
legislator
expresses a view
about specific
legislation
GRASSROOTS
communication
general public
expresses a view
about specific
legislation
call to action
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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!”
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SPECIFIC LEGISLATION
ISSUE: ESEA Reauthorization
The August recess isn’t meant for playtime!Ask Congress to include crucial civil rights
prioritiesin the Elementary and Secondary Education Act.
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ISSUE: Civil Rights Protections in Schools
NOT SPECIFIC LEGISLATION
Ensure equal opportunity in education for all children.
Support civil rights protectionsfor underserved students.
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LOBBYING EXCEPTIONS
nonpartisan analysis, study, or research
request for technical assistance
self-defense
examinations and discussions of broad
social, economic, and similar problems
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MUST
represent full and
fair discussion
be broadly
disseminated
NONPARTISAN ANALYSIS
MAY
express a view
contain indirect
call to action
limit subsequent
grassroots
lobbying
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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
or research
materials
Future
grassroots
lobbying use
(adding a
call to action)
+
IRS
presumption:
Grassroots
lobbying
expenditure
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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
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TECHNICAL ASSISTANCE
MUST BE
invited in writing on
behalf of committee
available to all members of
committee
MAY
express a view on Specific legislation
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SELF-DEFENSE
MUST
RELATE TO
powers and duties
tax-exempt status
deductibility of contributions
SHOULD
consult with attorney
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ANALYSIS + DISCUSSIONS
NO SPECIFIC
LEGISLATION
blue ribbon panel
annual reports
early stages of policy
development
NO CALL
TO ACTION
communication does not include
call to action
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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
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NONPARTISAN
ELECTORAL ACTIVITIES
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Election-related Activity KEY POINTS:
Nonprofits can and should engage their
communities around elections
Keep activities nonpartisan: no supporting or
opposing 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
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No 501(c)(3) support for or
opposition to CANDIDATES
running for PUBLIC OFFICE
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Who is a “CANDIDATE for
PUBLIC OFFICE”?
?
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CHARACTERISTICS
Office created by
statute
On-going position
Fixed term
Requires oath of
office
Includes School
Boards
For any
public office
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Rules that apply to
print and verbal
communications also
apply to ONLINE
COMMUNICATIONS
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INDIVIDUAL
PARTISAN
ELECTORAL
ACTIVITIES
Personal
Capacity Only
Not on
Company Time
Organization
Cannot Ratify Acts
Have a Policy
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What is NON-PARTISAN?
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FACTS and CIRCUMSTANCES
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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
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LOBBYING or advocacy campaigns
ISSUE ADVOCACY
Lobbying/Advocacy
Campaigns
Criticizing Incumbents
Candidate Education
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SUPPORTING OR
CRITICIZING
INCUMBENTS
Focus on
Legislative Issues
Continue Ongoing
Support/Criticism
Don’t
Support/Criticize
Personal
Characteristics
CRITICIZING
OR SUPPORTING INCUMBENTS
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SUPPORTING OR
CRITICIZING
INCUMBENTS
Focus on
Legislative Issues
Continue Ongoing
Support/Criticism
Don’t
Support/Criticize
Personal
Characteristics
CRITICIZING
OR SUPPORTING INCUMBENTS
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SUPPORTING OR
CRITICIZING
INCUMBENTS
Focus on
Legislative Issues
Continue Ongoing
Support/Criticism
Don’t
Support/Criticize
Personal
Characteristics
CRITICIZING
OR SUPPORTING INCUMBENTS
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LEGISLATIVE SCORECARDS
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PUBLIC
publishedregularly
includes all legislators
broad range of issues
avoidscommentary
MEMBERS
publishedregularly
includes all legislators
narrow range of issues
commentaryallowed
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CANDIDATE
EDUCATION
offer to all
use only what is already
gathered
only create new information if organization
has reason to do so
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QUESTIONS
unbiased questions
open-ended questions
distribute to all candidates
broad rangeof issues
no pledges
FORMATTING
no editing
present responses
equally
disclaimers
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QUESTIONS
unbiased questions
open-ended questions
distribute to all candidates
broad rangeof issues
no pledges
FORMATTING
no editing
present responses
equally
disclaimers
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DEBATES
& FORUMS
VOTER EDUCATION
candidate questionnaires
candidate debates and
forums
candidate appearances
appearances unrelated to
candidacy
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QUESTIONS
unbiased questions
broad range of issues
FORMAT
invite all viable candidates
fair rules
impartial moderator
unbiased audience
equal opportunity
no contextual favoritism
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CANDIDATE
APPEARANCES
VOTER EDUCATION
candidate questionnaires
candidate debates & forums
candidate appearances
appearances unrelated to
candidacy
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CANDIDATE
APPEARANCES
equal opportunity
required
no contextual favoritism
invite all viable candidates
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APPEARANCE
UNRELATED
TO CANDIDACY
VOTER EDUCATION
candidate questionnaires
candidate debates and
forums
candidate appearances
appearances unrelated to
candidacy
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APPEARANCE
UNRELATED TO
CANDIDACY
awards and policy updates
no equal opportunity
required
avoid mentioning candidacy
don’t time to coincide with
election
disclaimers and letters
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no reference to party/candidate
no suggestion of who to vote for
make service available to everyone
targeting for nonpartisan reason
VOTER REGISTRATION
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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
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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
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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
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For more information
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WEST COASTOakland, CA EAST COAST
Washington, DC
866-675-6229
www.bolderadvocacy.org
@AFJBeBold | @IsaiahAFJ
www.facebook.com/BolderAdvocacy
TEXASDallas, TX
Los Angeles, CA
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Rules that apply to print and verbal
communications also apply to
ONLINE COMMUNICATIONS
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Rules that apply to print andverbal communications also apply
to online communications.
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You can – and should – use your social media sites for lobbying.
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c3s should not use social media to support or oppose candidates.
c4s can use social media toendorse or oppose candidates.
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No support for or opposition tocandidates running for public office.
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… but you can use social mediato address comments
a candidate has made.
(Remember tostay focused on the issueand not the candidacy.)
If you’re a c4 or a PAC,you can address a candidate’s
fitness for office.
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ISSUE ADVOCACY
lobbying/
advocacy
campaigns
criticizing
incumbents
candidate
education
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You can friend theofficial Facebook page
of an incumbent.
On the other hand,the campaign page…
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Keep it personal.
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INDIVIDUAL
PARTISAN
ELECTORAL
ACTIVITIES
Personal
Capacity Only
Not on
Company Time
Organization
Cannot Ratify Acts
Have a Policy
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Have a policy.
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