1. © 2013 Community Action Program Legal Services, Inc. 2013 Annual NASCSP Training Conference September 10, 2013 Advocacy vs. Lobbying Eleanor Evans CAPLAW Boston, MA (617) 357-6915 eleanor.evans@caplaw.org

2. 2 Agenda Educations vs. advocacy vs. lobbying Rules on lobbying How do we lobby? Recordkeeping and registration © 2013 Community Action Program Legal Services, Inc.

3. 3 What Is “Education?” Providing information about: –Programs –Community needs –Demographics served –Issues addressed, results achieved –Impact on local economy, employers, government To members of the public, businesses To legislators and other government officials © 2013 Community Action Program Legal Services, Inc.

4. 4 What Is “Advocacy”? Persuading others, including general public and legislators, of your position on wide variety of issues –Influencing a decision –Encouraging action to be taken –Commenting on proposed regulations © 2013 Community Action Program Legal Services, Inc.

5. 5 What Is “Lobbying”? Attempting to influence introduction, enactment, or modification of legislation, referenda and ballot initiatives Some lobbying rules also apply in much broader context, such as all contacts with government officials to influence any government action or policy, including grants and contracts © 2013 Community Action Program Legal Services, Inc.

6. 6 What Are the Basic Rules on Lobbying? Generally, must use non-federal, unrestricted funds for lobbying –General requirements of OMB cost principle circulars apply if federal grant funds used (OMB Circular A-122, 2 CFR Part 230, and A-87, 2 CFR Part 225) States and public CAAs – state or local laws/rules may apply to lobbying Lobbying cannot be a substantial part of a 501(c)(3) organization’s activities © 2013 Community Action Program Legal Services, Inc.

7. 7 Which Lobbying Rules Apply to 501(c)(3) Federal Grantees? Internal Revenue Code rules for 501(c)(3)s Federal appropriations act restrictions OMB Circular A-122 (2 CFR Part 230) Individual grant or contract terms Federal Anti-Lobbying Act Byrd Anti-Lobbying Amendment Federal and state lobbying registration rules © 2013 Community Action Program Legal Services, Inc.

8. 8 Rules for States and Local Government Grantees Same as previous, except: –IRS 501(c)(3) rules don’t apply –OMB Circular A-87 (2 CFR Part 225), not A-122 (2 CFR Part 230) Additional state or local rules may apply to government entity © 2013 Community Action Program Legal Services, Inc.

9. 9 2012 Labor, HHS, Education, CNCS Appropriations Language Funds may not be used, other than for normal and recognized executive-legislative relationships, for: –Publicity or propaganda purposes –Preparation, distribution, or use of any kit, pamphlet, booklet, publication, radio, television, or video presentation designed to support or defeat legislation pending before Congress or any State legislature Except for presentations to Congress or State legislatures (P.L. No. 112-74, Div. F, Title V, § 503) © 2013 Community Action Program Legal Services, Inc.

10. 10 2012 Labor, HHS, Education, CNCS Appropriations Language cont. Funds may not be used, other than for normal and recognized executive-legislative relationships, for: Salary or expenses of any grant or contract recipient, or agent acting for such recipient, related to any activity designed to influence legislation or appropriations pending before the Congress or any State legislature (P.L. No. 112-74, Div. F, Title V, § 503) © 2013 Community Action Program Legal Services, Inc.

11. 11 HHS CSBG Terms & Conditions CSBG funds may not be used by the grantee or any sub-grantee to: –Support lobbying activities to influence proposed or pending Federal or State legislation or appropriations. This prohibition is related to the use of Federal grant funds and is not intended to affect an individual’s right or that of any organization, to petition Congress, or any other level of Government, through the use of other resources. © 2013 Community Action Program Legal Services, Inc.

12. 12 WAP Funding Announcement for Program Year 2013 By accepting funds under this award, you agree that none of the funds obligated on the award shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress …. (DOE WAP Funding Opp. Announcement for WAP Program Year 2013, Part VIII.D., p. 18) © 2013 Community Action Program Legal Services, Inc.

13. 13 OMB Circular A-122 on Legislative Lobbying Cannot use federal funds to influence introduction, enactment, or modification of federal or state legislation through: –Communications with federal or state legislators or their staff –Influencing state or local officials to lobby –Communications with government officials or employees re signing or vetoing bill –Grassroots lobbying –Legislative liaison activities (2 CFR Part 230, App. B, ¶ 25.a) © 2013 Community Action Program Legal Services, Inc.

14. 14 Exceptions to A-122 Legislative Lobbying Rule Influencing state legislation to reduce cost, or to avoid impairment of agency’s authority to perform, grant Any activity specifically authorized by statute to be undertaken with grant funds Technical and factual presentation of information to legislators (but this is quite narrow) ( 2 CFR Part 230, App. B, ¶ 25.b) © 2013 Community Action Program Legal Services, Inc.

15. 15 OMB A-122 Executive Lobbying Restriction No federal funds for “improperly influencing” federal executive branch employee on sponsored agreement or regulatory matter “Improperly influence” means attempting to influence on basis other than merits of matter “Sponsored agreement” includes all federally funded grants and contracts (2 CFR Part 230, App. B, ¶ 25.d) © 2013 Community Action Program Legal Services, Inc.

16. 16 OMB A-87 Lobbying Rules Costs of membership in organizations substantially engaged in lobbying are unallowable Same prohibition on grant-related lobbying and executive lobbying restriction as in A-122 No other provisions re: lobbying ( 2 CFR Part 225, App. B, ¶24) © 2013 Community Action Program Legal Services, Inc.

17. 17 General Requirements for Use of Federal Funds Remember that costs may not be charged to a federal grant unless they are also, for example: –Within grant purposes, not prohibited by grant terms –Necessary and reasonable –Allocable –Treated consistently with costs for other programs –Documented –In accordance with generally accepted accounting principles (2 CFR Part 225 (OMB A-87) App. A, and 2 CFR Part 230 (OMB A-122) App. A) © 2013 Community Action Program Legal Services, Inc.

18. 18 Proposed OMB Super Circular Much broader than OMB Circular A-122 Specifies that no federal funds may be used either directly or indirectly to support the enactment, repeal, modification or adoption of any law, regulations or policy by any government without a specific determination by the federal awarding agency that such is expressly authorized by statute Minimum $10,000 fine for each time a violation occurs © 2013 Community Action Program Legal Services, Inc.

19. 19 So How Do We Lobby? Set aside unrestricted non-federal funds to pay or reimburse lobbying costs, including appropriate share of both direct and indirect salary and expenses –Unrestricted funds do not include required matching funds or program income –Amount subject to IRS limitation for 501(c)(3)s: Must not be a substantial part of organization’s activities; or Must comply with 501(h) election dollar limits © 2013 Community Action Program Legal Services, Inc.

20. 20 So How Do We Lobby? Collect data and use it to educate the community and government officials on an ongoing basis Work with grantee board members, community members, other volunteers Work with state and national associations © 2013 Community Action Program Legal Services, Inc.

21. 21 Lobbying by Employees Employees may engage in any type of lobbying on their own time without use of federally-funded facilities, equipment etc. –But can’t ask non-exempt employees to volunteer or even accept volunteer time of such employees if similar to paid duties If employee engages in a lobbying activity during work time, state (or CAA) may not pay employee with federal funds for such time –If federal funds used, state (or CAA) should reimburse federal funds for time and pay expenses out of non- federal funds © 2013 Community Action Program Legal Services, Inc.

22. 22 Lobbying by Board Members Non-employee board members or other non- employee community members/volunteers may conduct any type of lobbying, so long as federal funds are not used to support effort If board member or volunteer lobbies on behalf of a nonprofit CAA, it is counted toward IRS lobbying limitation, unless CAA makes section 501(h) election © 2013 Community Action Program Legal Services, Inc.

23. 23 Recordkeeping Keep records of lobbying expenditures to show non-federal funding source or that no funding was used If no costs incurred, be able to back that up (e.g. records reflect activity by volunteer or time card shows done on lunch hour) Records need to be kept of expenses as well as employee time (logs, time cards or activity reports) © 2013 Community Action Program Legal Services, Inc.

24. 24 Recordkeeping May not include unallowable lobbying costs in indirect costs, but must disclose separately as direct charges in indirect cost rate proposal and allocate indirect costs to those direct charges Nonprofit CAAs should keep records to answer questions on IRS Form 990 and on Form 990 Schedule C © 2013 Community Action Program Legal Services, Inc.

25. 25 Lobbying Registration Check if you or your organization must register as lobbyist under the federal Lobbying Disclosure Act (2 USC 1601 et. seq.) –For guidance on the act, see: http://lobbyingdisclosure.house.gov/ldaguidance.pdf http://lobbyingdisclosure.house.gov/ldaguidance.pdf Check if you or your organization need to register as a lobbyist under your state laws © 2013 Community Action Program Legal Services, Inc.

26. 26 Advocacy and Lobbying Resources CAPLAW articles on lobbying, www.caplaw.orgwww.caplaw.org Alliance for Justice Tools for Effective Advocacy, http://bolderadvocacy.org/tools-for-effective-advocacy http://bolderadvocacy.org/tools-for-effective-advocacy IRS lobbying information, http://www.irs.gov/Charities- &-Non-Profits/Lobbying http://www.irs.gov/Charities- &-Non-Profits/Lobbying © 2013 Community Action Program Legal Services, Inc.

27. 27