Are the 501(c)(4) Rules Changing?
Rules of the Game: The Bolder Advocacy Podcast
A recent Fifth Circuit holding in Memorial Hermann has caught the attention of lawyers in our space, with some wondering if the tax law rules on how 501(c)(4)s operate may change. But what did the court really say, and how should 501(c)(4) advocacy organizations react? On this special holiday edition of the pod, we are joined by Larry Gold of Trister Ross Schadler and Gold to understand what this case says and what it means for (c)(4)s in 2025 and beyond. Attorneys for this episode Tim Mooney Susan Finkle Sourlis Larry Gold, Show notes ...
info_outline
Transition Advocacy
Rules of the Game: The Bolder Advocacy Podcast
On this episode, we discuss how nonprofits can engage in advocacy during this time of transition and prepare for 2025. Attorneys for this episode Sarah Efthymiou Víctor Rivera Labiosa Melissa Marichal Zayas Show Notes Post-Election Communications: Prohibition on Campaign Intervention · Keep in mind that 501(c)(3)s should never indicate that they support or oppose candidates for public office, whether in the past, present, or future. Permissible communications for 501(c)(3)s: Congratulating a newly elected official or thanking a former candidate...
info_outline
Giving Thanks
Rules of the Game: The Bolder Advocacy Podcast
It’s the holiday season, and we here at the Rules of the Game podcast would like to embrace the opportunity to give thanks to several amazing nonprofits, who thrived in the face of adversity, boosted civic engagement, successfully led the charge on critical advocacy initiatives, and supported their communities in times of need. From North Carolina, to Colorado, to Missouri, and beyond, nonprofit advocates boldly stood up to protect democracy, defend our rights, and secure justice for all. So, as we gather around the table with family and friends this week, we want to celebrate them and their...
info_outline
Ballot Measure Wins
Rules of the Game: The Bolder Advocacy Podcast
The people voted on Tuesday for their choice of candidates and in many states they also voted on Ballot measures or ballot initiatives. Ballot measures offer voters a way to participate in direct democracy and can be a powerful tool for change. On this episode, we will discuss some of the ballot measures that were up for a vote in 2024 and the results. As regular listeners will know ballot measures, initiatives, propositions, or bond measures are lobbying. Although they are on the ballot, they are lobbying activity and voters are the lawmakers. Many nonprofits, both c3 public...
info_outline
Individual Activity During Election Season
Rules of the Game: The Bolder Advocacy Podcast
On today’s episode, we dive into rules surrounding partisan activities for employees of 501(c)(3) organizations. With the election just around the corner, we will give you some best practices for how to keep your 501(c)(3) safe from any partisan activity while you engage in electoral work as an individual. Attorneys for this Episode Melissa Marichal Zayas Brittany Hacker Victor Rivera Labiosa Shownotes Rules for 501(c)(3) organizations Remain nonpartisan when acting on behalf of your 501(c)(3) ...
info_outline
Ask Us Anything - Electionpalooza Edition
Rules of the Game: The Bolder Advocacy Podcast
Election season is well underway and politics is everywhere. It's one of our busiest time at Bolder Advocacy. On this episode, we bring you three of your questions to answer on the pod... it’s another round of Ask Us Anything, Electionpalooza Edition! Lawyers for this episode Tim Mooney Susan Finkle Sourlis Monika Graham Shownotes - Question: Presidential campaigns working with outside groups on door-to-door canvassing for their get-out-the-vote efforts— is this illegal coordination under federal election law? - Answer: - Base coordination rules...
info_outline
Voter Assistance State Resources
Rules of the Game: The Bolder Advocacy Podcast
With only a small handful of weeks remaining until the general election, you may be wondering about how you or your nonprofit can get involved in voter assistance activities such as providing rides to the polls, registering voters, and helping voters vote by mail. Would you be surprised that these activities are often regulated by both state and federal law? On this episode, we’ll discuss our Practical Guidance Voter Assistance resources series, created in partnership with Democracy Capacity Project, and explain some of the rules you should be thinking about in the final countdown to the big...
info_outline
Election Protection and Nonpartisan Voter Assistance
Rules of the Game: The Bolder Advocacy Podcast
This is a special rebroadcast of our episode on election protection and nonpartisan voter assistance from 2022. Since the original airing, Bolder Advocacy, in partnership with The Democracy Capacity Project, has expanded our series of state law guides on nonprofit voter assistance. Most states are covered and you can find them on our resource library page. We'll be back in two weeks with a brand new episode. --- On this episode, we’ll discuss how different types of tax-exempt organizations can ensure the right to vote is protected by engaging in election protection activities and...
info_outline
AI and Election Disinformation
Rules of the Game: The Bolder Advocacy Podcast
As AI continues to advance, its potential to influence elections and democracy, both positively and negatively, has become a critical issue. In this episode, we delve into the rapidly evolving intersection of artificial intelligence and election disinformation with Jonathan Mehta Stein where he discusses how AI, particularly generative AI, can be used to create deepfakes and other misleading content that could destabilize elections, deceive voters, and potentially alter election outcomes. We also explore how nonprofits and community organizations can play a crucial role in combating this...
info_outline
Litigation
Rules of the Game: The Bolder Advocacy Podcast
As we’ve talked about on previous editions of the pod, advocacy includes a wide array of different options to help change things for the better in our communities. One of the more important, but less discussed methods, is litigation. On this episode, we dive into the role litigation plays in nonprofit advocacy, its treatment under the law, and things to think about if your nonprofit is looking to use this tool for good. Lawyers for this episode Natalie Ossenfort Tim Mooney Quyen Tu Litigation as an advocacy tool (citizen suits, appeals, amicus briefs etc.) Treatment under tax...
info_outlineOn this episode, we revisit a very specific type of lobbying that doesn’t necessarily seem like lobbying in the first place. Ballot measures can range from local bonds to state constitutional amendments, and everything in between. What can nonprofits do to support or oppose them, and how do they comply with state and federal law?
Our attorneys for this episode
- Tim Mooney
- Natalie Ossenfort
- Quyen Tu
What are Ballot Measures?
- Called different things in different states and localities
-
- Bond
- Constitutional Amendments
- Referenda
- Ballot questions / initiatives
- Propositions
- Any policy matter put to a vote of the general public
- There are no federal ballot measures, but federal law has one major thing to say aboutmeasures for 501(c)(3)s
- State and sometimes local laws cover campaign finance and reporting requirements
Can nonprofits take a stance?
- No. End of episode. (just kidding!)
- Most can. All 501(c)s that aren’t charities or foundations can (generally) do an unlimited amount of ballot measure advocacy, but must follow state and local laws for reporting their work
- Public charities can take a stance, but ballot measures are lobbying (which is why this episode is in the lobbying series!). From there, they also have to follow state and local laws for reporting their work
- Private foundations cannot take a stance on ballot measures (again...lobbying) without being hit with a big excise tax
Wait, lobbying? Tell me more.
- Boil it down? Voters are a giant legislative body
- Direct lobbying, not grassroots – and that’s good because charities can do more direct lobbying
- Doesn’t violate the prohibition on electioneering to support or oppose measures because they are not related to candidates
- Be careful to make sure your org’s advocacy isn’t seen as/tied to a candidate’s position on theballot measures
- Clock starts ticking when petitions go out to qualify for the ballot or (probably) when you’re lobbying legislative bodies when they are determining whether to refer an item to the voters
- Count all prep work, staff time, communications costs, etc.
- You non-c3s? Tax law doesn’t restrict lobbying, and this counts toward primary purpose activity... so load up on your GOTV and voter reg work on ballot measures and (strategy time!) it can offset candidate work you do.
State laws...
Every state is different, starting with the fact some states don’t have ballot measures at all. Even states without statewide ballot measures like NY have local bond measures though.
Any state or locality with ballot measures has some kind of registration and reporting laws
We have state law resources for your state! Examples:
Texas
Corporations (including nonprofits) can support or oppose ballot measures in Texas.
- Texas Election Code defines a political committee as two or more persons acting in concert with a principal purpose of accepting political contributions or making political expenditures. Since the definition of “persons” includes nonprofit corporations and expenditures and contributionsinclude those made in connection with a measure, it is possible for nonprofits to trigger PAC registration and reporting in Texas even if they don’t do any candidate-related work.
- TRANSLATION: if a group of nonprofits comes together to raise funds for the support or opposition of a measure, they may need to register and report as a PAC.
- It is also possible that if a nonprofit acts on its own to impact a ballot measure, it could trigger direct campaign expenditure (aka independent expenditure) reporting even if it doesn’t coordinate its work with other organizations or individuals. DCE reporting, as it’s sometimes referred to, kicks in when more than $100 is spent to support or oppose a measure.
- Of course, there are other scenarios as well that might not require state-level reporting in the ballot measure context in Texas (e.g. nonprofit contributions to a ballot measure only PAC), so feel free to reach out to our TX team if you have any questions about when and what you have to report when you engage in ballot measure advocacy.
Oregon
- Trivia: Oregon is one of the first states to adopt ballot measures... started them in 1902 (just behind SD and UT)
- Five forms: state statutes (legislature or citizen referred), constitutional amendments (legislature or citizen referred), and veto referenda.
- If your nonprofit’s purpose is to support/oppose a ballot measures you have to register as a political committee
- No contribution limits (those are unconstitutional per SCOTUS)
- Real time online reporting (ORESTAR!!!!)
- 3 reporting periods
- Contributions over $100 - the name/address of the donor disclosed
California
- These rules are about transparency and tracking money in CA elections.
- Most important: if you engage in certain fundraising activities or spending, you could become aballot measure committee and not even know it. That means your nonprofit would have filing and reporting obligations.
- There just isn’t enough time to do justice to the CA BM rules on this show so if you’re interestedin a whole show, please shoot us an email
- Ballot measures are treated as campaign activity
- Rules are designed so that when people or organizations accept or spend money for ballot measures, it gets reported by someone.
- When there is advocacy for a ballot measure, there will be a main ballot measure committee.Must report contributions of $100+, whether financial or in-kind, and expenditures. This usually works best as a separate entity from a 501(c)(3).
- Even if you are not the main ballot measure committee, there are ways NPs could trigger reporting with the FPPC
- receiving or spending money on ballot measure advocacy
- receive $2k+ in calendar year earmarked for ballot measures, you become a recipient committee. Recipient committees have to report their donors.
- Another way to become a recipient committee is to spend at least $50k in non-earmarked donated funds. At these higher levels of spending it gets more detailed so please check out our resources.
- Major Donor Committee: give $10k+ in calendar year to a recipient committee (staff time counts) but does not receive $ earmarked for ballot measures
- Independent Expenditure Committee: spends $1k+ in a calendar year on communications that expressly advocates for/against ballot measures and not made in coordination with a ballot measure committee
- Non reportable activities:
- 10% or less of staff time
- Paid staff time counts as an expenditure, or if it’s coordinated with a ballot measure committee, a contribution. If you have staff spending more than 10% of their time in any calendar month on ballot measures, you need to consider that expenditure towards these thresholds.
- Newsletter
- Member communications
- Contracted services to the ballot measure committee
- Certain limited fundraising expenses
- Raising money for the ballot measure committee where the contributions go directly to theballot measure committee (funds do not pass through the org)
- You can ask people to donate to the main ballot measure committee and only your fundraising costs would count as a contribution toward these thresholds, some fundraising costs are even exempt from reporting.
Final thoughts?
- Often critically important advocacy
- Private foundations! You can and should support this work, even though you cannot directly advocate or fund it. How?
-
- general support grants
- specific project grants for non-lobbying portions of the work
- educate the public about the ballot measure process
- communications that qualify as nonpartisan analysis
- communications that are neutral urging voters to study the issue
Resources