TAKE A STAND Ballots Measure Advocacy for Nonprofits Presented by &

ABOUT NONPROFIT VOTE Founded in 2005, Nonprofit VOTE partners with America's nonprofits to help the people they serve participate and vote. We are the leading source of nonpartisan resources to help nonprofits integrate voter engagement into their ongoing activities and services. Visit our website for more on our mission and partners: www.nonprofitvote.org About 2

Today’s presenters Ronnie Pawelko Elections Council Alliance for Justice Who

Bolder Advocacy promotes active engagement in democratic processes and institutions by giving nonprofits and foundations the confidence to advocate effectively and by protecting their right to do so. Our goal is to demystify and decode advocacy by equipping organizations with knowledge and tools. We help organizations fully understand the rules and become assertive in their right to pursue their policy goals. Bolder Advocacy is an initiative of the Alliance for Justice – a national association of more than 100 organizations that are united by a commitment to a fair, just, and free America where everyone has equal access to justice and can fully participate in our democracy. To learn more about our work on justice issues, visit AFJ.org. 4

Agenda How much lobbying can we do? What is the definition of lobbying and how does it apply to ballot measures? Are there any lobbying exceptions for ballot measures? How can we ensure our ballot measure advocacy is nonpartisan? Agenda

Federal and state law Federal Law State law Limits lobbying (including ballot measures advocacy) at all levels of government. State law May require disclosure of state ballot measure advocacy. Today I will be talking about two distinct laws: Federal Tax Law and California Political Reform Act, a sunshine law. First, federal tax law (governed by the IRS), provides that 501©(3) organizations can support or oppose ballot measures and treats this activity as lobbying. Basically, the IRS says “You can Do IT!” Second, you must also comply with state law, the Political Reform Act, which is governed by the Fair Political Practices Commission. State law requires the disclosure of your ballot measure activity. So, you can do it; but you have to report it. Federal/ State

Range of activities Drafting Gathering signatures for petitions Supporting / opposing ballot measure Voter registration and GOTV “Full and fair” discussion of the issue No direct call to action Broad dissemination Ok to express a view and list the members voting Watch out for subsequent use rule—subsequently use for GR lobbying, presumption is initial reason is GR lobbying. Overcome by: Initial distribution greater then anything that is done with it for lobbying Older then 6 months old No coordinating with other NP Activities

Comparing nonprofits Comparing Nonprofits “Full and fair” discussion of the issue No direct call to action Broad dissemination Ok to express a view and list the members voting Watch out for subsequent use rule—subsequently use for GR lobbying, presumption is initial reason is GR lobbying. Overcome by: Initial distribution greater then anything that is done with it for lobbying Older then 6 months old No coordinating with other NP Comparing Nonprofits

Donation Tax-Deductible Private Foundation Grants Political Orgs Examples Alliance for Justice LCV Education Fund AFJ Action Campaign LCV Connected/SSF: LCV PAC Independent: Emily’s List Tax Treatment Tax-Exempt Donation Tax-Deductible Private Foundation Grants Lobbying Activities Unlimited Rare and usually taxable Electoral Activities Secondary Activity, Follow Federal and State Law Usually Sole Activity Limited Collabor-ating Cannot Support or Oppose a Candidate for Office

How much lobbying? How Much Lobbying? “Full and fair” discussion of the issue No direct call to action Broad dissemination Ok to express a view and list the members voting Watch out for subsequent use rule—subsequently use for GR lobbying, presumption is initial reason is GR lobbying. Overcome by: Initial distribution greater then anything that is done with it for lobbying Older then 6 months old No coordinating with other NP How Much Lobbying?

The “insubstantial part” test What is “insubstantial”? Default test Activities-based Lobbying not defined Penalty How Much Lobbying?

The 501(h) Expenditure test Dollar-based limits One-time election – IRS Form 5768 Expenditures only Definition of lobbying Penalty less severe How Much Lobbying?

Calculating a limit under 501(h) Calculate organization’s “exempt purpose expenditures” (usually annual expenditures) Overall lobbying limit Grassroots lobbying limit is 25% of overall limit IPT-work with attorney on internal cap 501h-use simple formula How Much Lobbying?

$175,000 +10% of excess over $1 million ANNUAL EXPENDITURES OVERALL LOBBYING LIMIT $500,000 or less 20% $500,000 to $1 million $100,000 +15% of excess over $500,000 $1 million to $1.5 million $175,000 +10% of excess over $1 million $1.5 million to $17 million $225,000 + 5% of excess over $1.5 million Over $17 million $1,000,000 How Much Lobbying?

Example Total lobbying limits for 501(c)(3)s making the 501(h) election with annual expenditures of $500,000 IPT-work with attorney on internal cap 501h-use simple formula How Much Lobbying? Overall Lobbying Limit Grassroots Lobbying Limit $100,000 $25,000

What is Lobbying? What is lobbying? “Full and fair” discussion of the issue No direct call to action Broad dissemination Ok to express a view and list the members voting Watch out for subsequent use rule—subsequently use for GR lobbying, presumption is initial reason is GR lobbying. Overcome by: Initial distribution greater then anything that is done with it for lobbying Older then 6 months old No coordinating with other NP What is lobbying?

Direct lobbying Communication The Special Legislator rule Members of the public are legislators Expressing a view about specific legislation For purposes of ballot initiatives, bond measures, referenda, constitutional amendments—the general public are unpaid legislators. What is lobbying?

Grassroots lobbying Communication General Public Expressing a view about specific legislation Call to Action Does not apply to ballot measures As I stated earlier, ballot measures are legislative proposals that are submitted to the voters for approval. For that reason, ballot measure activity is treated as lobbying under federal tax law. Ballot measures include both initiatives (which are qualified for the ballot by petition) and legislative measures placed on the ballot by either a state or local legislature. Initiatives become “measures” that count against an organizations lobbying limit as soon as you start circulation of the measure. Organizing staff to gather signatures for the initiative/referendum petition Gathering signatures Support/ Opposing the qualification of a measure – including decline to sign efforts Voter Registration and GOTV For measures placed on the ballot by legislators, you count your efforts to draft or negotiate the language with a legislator. Some expenses before petitions start circulating may also count as lobbying if the organization makes the expenditure in order to help qualify the measure if the primary purpose for the activity is to engage in lobbying. See page 26 of Seize the Initiative for more information on this. What is lobbying?

Lobbying exceptions Nonpartisan analysis, study, or research Request for technical assistance Self defense Examinations and discussions of broad social, economic, and similar problems “Full and fair” discussion of the issue No direct call to action Broad dissemination Ok to express a view and list the members voting Watch out for subsequent use rule—subsequently use for GR lobbying, presumption is initial reason is GR lobbying. Overcome by: Initial distribution greater then anything that is done with it for lobbying Older then 6 months old No coordinating with other NP Exceptions

Nonpartisan analysis MUST SHOULD Full and Fair Discussion Broadly Disseminated SHOULD Avoid directly encouraging recipients to vote for or against measure The Facts: Californians have a lot of important decisions to make on election day, November 8. Before you vote, be sure you get the facts. Proposition 188 is a good example. Do you know what will happen if it passes? Do you know who’s behind it? Who opposes it? Who the major contributors are on each side? You have the right to know about Proposition 188. Read your official voter handbook before you decide. This is a communication Greg Colvin concluded met the definition of a nonpartisan analysis report. Took the voter guide and annotated it with additional information, included top donors to each side, included this paragraph. Will depend upon facts and circumstances and should consult with attorney. Exceptions

Technical assistance MUST MAY Invitation in writing on behalf of Body or Committee Available to all members of Body or Committee MAY Express a view on specific legislation If the legislature is placing the measure on the ballot. Exceptions

Nonpartisan advocacy Advocacy “Full and fair” discussion of the issue No direct call to action Broad dissemination Ok to express a view and list the members voting Watch out for subsequent use rule—subsequently use for GR lobbying, presumption is initial reason is GR lobbying. Overcome by: Initial distribution greater then anything that is done with it for lobbying Older then 6 months old No coordinating with other NP Advocacy

No support or opposition for candidates running for public office Nonpartisan Advocacy No support or opposition for candidates running for public office Do not ALIGN stance with candidate/parties Be cautious in joining COALITIONS doing non-(c)(3) permissible work Advocacy

Nonpartisan electoral activities Supporting/opposing Ballot Measures Issue Advocacy Advocating for organizations issues during election year Voter Education Educating voters in a nonpartisan way about candidates If the legislature is placing the measure on the ballot. Nonpartisan Activities

Nonpartisan activities (cont) Voter Registration Registering historically under-represented groups May register to vote for or against a ballot measure Individual & Business Activities Ensuring partisan activities are not attributed to the organization Advocacy Capacity Increase the organization’s capacity by opening affiliated organization If the legislature is placing the measure on the ballot. Nonpartisan Activities

Additional examples,

coordination Contribute Provide mailing list Host a fundraising event (must inform donors that contributions are not tax deductible) “Full and fair” discussion of the issue No direct call to action Broad dissemination Ok to express a view and list the members voting Watch out for subsequent use rule—subsequently use for GR lobbying, presumption is initial reason is GR lobbying. Overcome by: Initial distribution greater then anything that is done with it for lobbying Older then 6 months old No coordinating with other NP Nonpartisan Activities

Campaign disclosure Disclosure “Full and fair” discussion of the issue No direct call to action Broad dissemination Ok to express a view and list the members voting Watch out for subsequent use rule—subsequently use for GR lobbying, presumption is initial reason is GR lobbying. Overcome by: Initial distribution greater then anything that is done with it for lobbying Older then 6 months old No coordinating with other NP Disclosure

“Full and fair” discussion of the issue No direct call to action Broad dissemination Ok to express a view and list the members voting Watch out for subsequent use rule—subsequently use for GR lobbying, presumption is initial reason is GR lobbying. Overcome by: Initial distribution greater then anything that is done with it for lobbying Older then 6 months old No coordinating with other NP Disclosure http://bolderadvocacy.org/navigate-the-rules/state-resources

BA guide to state lobbying thresholds Disclosure

CA example Disclosure

Questions? ?????? “Full and fair” discussion of the issue No direct call to action Broad dissemination Ok to express a view and list the members voting Watch out for subsequent use rule—subsequently use for GR lobbying, presumption is initial reason is GR lobbying. Overcome by: Initial distribution greater then anything that is done with it for lobbying Older then 6 months old No coordinating with other NP ??????

resources Factsheets and Guides available from www.bolderadvocacy.org www.nonprofitvote.org “Full and fair” discussion of the issue No direct call to action Broad dissemination Ok to express a view and list the members voting Watch out for subsequent use rule—subsequently use for GR lobbying, presumption is initial reason is GR lobbying. Overcome by: Initial distribution greater then anything that is done with it for lobbying Older then 6 months old No coordinating with other NP Resources

AFJ Northern California Office: info@nonprofitvote.org 617.357.8683 www.nonprofitvote.org Nonprofit Vote 2464 Massachusetts Ave Suite 210 Cambridge, MA 02140 advocacy@afj.org 866.675.6229 www.bolderadvocacy.org AFJ Washington DC HQ: 11 Dupont Circle NW, 2nd Floor Washington, DC 20036 Phone: (202) 822-6070 Fax: (202) 822-6068 AFJ Northern California Office: 436 14th Street, Suite 425 Oakland, CA 94612 Phone: (510) 444-6070 Fax: (510) 444-6078 AFJ Southern California Office: 1000 N. Alameda Street, Suite 340 Los Angeles, CA 90012 Phone: (213) 346-3288 Fax: (213) 808-1009 AFJ Texas Office: Alliance for Justice @ The Grove 501 Elm Street, Suite 450 Dallas, Texas 75202 Phone: (214) 530-9144 35