Campaigning, Advocacy and Lobbying by Public Charities

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These slides cover the Internal Revenue Code rules applicable to policy, advocacy, candidate campaigning and legislative lobbying by public charities

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Campaigning, Advocacy and Lobbying by Public Charities

  1. 1. able Series May 17, 2012 Campaigning, Advocacy & Lobbying by Public Charities A Look at Some “Do”s and “Don’t”s Presented by: Cynthia R. Rowland Coblentz, Patch, Duffy & Bass LLP www.coblentzlaw.com © 2012 Coblentz, Patch, Duffy & Bass LLP 1
  2. 2. Campaigning, Advocacy & Lobbying by Public CharitiesPermitted Activities A Public Charity may do all of the following:  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. © 2012 Coblentz, Patch, Duffy & Bass LLP 2
  3. 3. Campaigning, Advocacy & Lobbying by Public CharitiesPermitted Activities with Restrictions A Public Charity may do the following with restrictions:  Prepare candidate questionnaires  Publish candidate qualifications  Sponsor candidate debates  Conduct voter registration drives © 2012 Coblentz, Patch, Duffy & Bass LLP 3
  4. 4. Campaigning, Advocacy & Lobbying by Public CharitiesWhat are Prohibited Political CampaignActivities?  Endorsing a candidate for public office  Urging the public to vote for or against a specific candidate  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 © 2012 Coblentz, Patch, Duffy & Bass LLP 4
  5. 5. Campaigning, Advocacy & Lobbying by Public CharitiesSpecial 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 © 2012 Coblentz, Patch, Duffy & Bass LLP 5
  6. 6. Campaigning, Advocacy & Lobbying by Public CharitiesWhat Types of Communications Do I Needto Worry About?  All Communications, Including Advocacy, Fundraising and Educational  Credible Disclaimer  Watch Out For Distorted Facts Code Words Emotional Appeals Unsupported by Reasoned Analysis © 2012 Coblentz, Patch, Duffy & Bass LLP 6
  7. 7. Campaigning, Advocacy & Lobbying by Public CharitiesDo I Have The Personal Right to Campaignfor 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.” © 2012 Coblentz, Patch, Duffy & Bass LLP 7
  8. 8. Campaigning, Advocacy & Lobbying by Public CharitiesWhat Charity Resources May I Use forCampaign Activity? No:  Websites, Social Media  Letterhead  Servers and Computing Capacity, Including Email Addresses  Release Time  And, obviously, cash Yes:  Receipt of Educational Materials in Furtherance of Job Duties © 2012 Coblentz, Patch, Duffy & Bass LLP 8
  9. 9. Campaigning, Advocacy & Lobbying by Public CharitiesCandidate 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 © 2012 Coblentz, Patch, Duffy & Bass LLP 9
  10. 10. Campaigning, Advocacy & Lobbying by Public CharitiesCandidate 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 © 2012 Coblentz, Patch, Duffy & Bass LLP 10
  11. 11. Campaigning, Advocacy & Lobbying by Public CharitiesCandidate 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 © 2012 Coblentz, Patch, Duffy & Bass LLP 11
  12. 12. Campaigning, Advocacy & Lobbying by Public CharitiesVoter 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 © 2012 Coblentz, Patch, Duffy & Bass LLP 12
  13. 13. Campaigning, Advocacy & Lobbying by Public CharitiesVoter 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 © 2012 Coblentz, Patch, Duffy & Bass LLP 13
  14. 14. Campaigning, Advocacy & Lobbying by Public CharitiesWhat 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 14
  15. 15. Campaigning, Advocacy & Lobbying by Public Charities 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) © 2012 Coblentz, Patch, Duffy & Bass LLP
  16. 16. Campaigning, Advocacy & Lobbying by Public Charities 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. 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. © 2012 Coblentz, Patch, Duffy & Bass LLP 16
  17. 17. Campaigning, Advocacy & Lobbying by Public Charities Special Case: San Francisco Political Contribution Prohibition Covered City Officials: Covered Contributions:  Any elected official that  Broadly defined; Must approve the  Includes Contract Meetings/Fundraising  Candidate for that office events at home or office  Candidates of covered party committees. Contracting entity. Time Periods: Notice:  Upon commencement  Entity must notify of negotiations officers and  Until termination or 6 directors of months from prohibition prior to approval. commencement of negotiations. © 2012 Coblentz, Patch, Duffy & Bass LLP 17
  18. 18. Campaigning, Advocacy & Lobbying by Public CharitiesIntroduction 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 © 2012 Coblentz, Patch, Duffy & Bass LLP 18
  19. 19. Campaigning, Advocacy & Lobbying by Public Charities The “No Substantial Part” Test  Entirely Subjective  No bright lines, no safe harbor  Case law suggests 5%  Not measured by expenditures © 2012 Coblentz, Patch, Duffy & Bass LLP
  20. 20. Campaigning, Advocacy & Lobbying by Public CharitiesDisclosure © 2012 Coblentz, Patch, Duffy & Bass LLP 20
  21. 21. Campaigning, Advocacy & Lobbying by Public CharitiesWhat 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 © 2012 Coblentz, Patch, Duffy & Bass LLP 21
  22. 22. Campaigning, Advocacy & Lobbying by Public CharitiesWhat 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 © 2012 Coblentz, Patch, Duffy & Bass LLP 22
  23. 23. Campaigning, Advocacy & Lobbying by Public CharitiesWhat 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 © 2012 Coblentz, Patch, Duffy & Bass LLP 23
  24. 24. Campaigning, Advocacy & Lobbying by Public CharitiesWhat is an Example of an AdvocacyCommunication? © 2012 Coblentz, Patch, Duffy & Bass LLP 24
  25. 25. Campaigning, Advocacy & Lobbying by Public CharitiesWhat is an Example of a Grass RootsLobbying Communication? © 2012 Coblentz, Patch, Duffy & Bass LLP 25
  26. 26. Campaigning, Advocacy & Lobbying by Public CharitiesResources for More Information  Internal Revenue Service www.irs.gov/charities  Alliance for Justice www.afj.org 476532 © 2012 Coblentz, Patch, Duffy & Bass LLP 26
  27. 27. ble Series May 17, 2012 Campaigning, Advocacy & Lobbying by Public Charities A Look at Some “Do”s and “Don’t”s Presented by: Cynthia R. Rowland Coblentz, Patch, Duffy & Bass LLP www.coblentzlaw.com © 2012 Coblentz, Patch, Duffy & Bass LLP 27

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