Ballot Measure Advocacy

With direct democracy becoming more important than ever in this political climate, we thought it was a good time to revisit ballot measures. From local park bonds to important state constitutional amendments, ballot measures have become important tools for policymaking, and nonprofits often play a huge role in supporting and opposing them. On this episode we do a deep dive on the details and how you can get involved.

 

Attorneys for this episode

Susan Finkle Sourlis
Tim Mooney
Natalie Ossenfort       

 

Shownotes

What Are Ballot Measures, and Why Are They Important?

·      According to Ballotpedia, as of April 5, 2026, 87 statewide ballot measures have been certified for the ballot in 35 states for elections in 2026.

·      These initiatives will ask voters to weigh in on topics like redistricting, campaign finance, state budgets, school funding, the state judiciary, and more.

·      Ballot measures are important advocacy tool to create policy change. They are a form of direct democracy.

 

The Law: Internal Revenue Code

·      Ballot measures = pieces of legislation. If they pass, they become law.

·      As a result, advocacy for or against the passage of a measure = lobbying (more specifically, direct lobbying since the public serves as a legislative body during the ballot measure process).

·      Reminder: public charities can lobby, but they need to stay within Internal Revenue Code set lobbying limits.

o   Default test: Insubstantial Part Test

o   Optional test for most public charities: 501(h) Expenditure Test

·      Under either test, one must express a view on legislation for a communication to be considered lobbying.

·      Here are some ballot measure activities that would be considered lobbying:

o   Asking voters to vote yes or no on a measure

o   Posting social media messages either supporting or opposing a measure

o   Raising money earmarked to defeat or win a measure

o   Preparing materials that support or oppose a measure

o   Targeting outreach to voters that are likely to support or oppose a measure in alignment with your organization’s position

 

The Law: State / Local-Level Campaign Finance Considerations

·      The ballot measure process varies by state.

o   Some states only allow legislatively referred measures.

o   Others (like OH, MI, AZ, and CA) allow citizens to initiate statewide ballot measures.

·      It is essential that if your organization is planning to conduct activity surrounding a ballot measure, you abide by state law.

·      Unlike the IRS, most states do not regulate ballot measure advocacy as lobbying, but rather this type of advocacy falls under state campaign finance law.

o   Some states require reporting if an individual (or nonprofit) hits a certain spending threshold related to their ballot measure advocacy (hello, Texas!). Others require committee formation and registration if certain thresholds are met or if organizations join forces to advocate in support or opposition of a measure.

o   States also often require specifically worded ‘paid for by’ and other disclaimers when advocating on a measure.

o   Many states have already passed or are considering legislation related to ballot measure fundraising and who can contribute to ballot measure campaigns. Check your state's laws for details.

·      IMPORTANT: Consult with counsel before embarking on a ballot measure campaign, so they can determine if your organization might need to register and report with state officials (or potentially form a committee).

·      If a committee already exists and is in alignment with your organization on a measure, it may be possible to join forces and minimize the reporting burdens on your nonprofit.

Life of a ballot Initiative – signature gathering to passage to enforcement

·      Before a ballot measure ever appears on the ballot, there’s a long runway of activity—and for nonprofits, many of these activities count as lobbying for 501(c)(3) public charities and need to be counted against an organization’s lobbying limits.

Citizen-Led Initiatives

1.    Pre-signature organizing

2.    Drafting the measure language

3.    Signature gathering

4.    Qualification for the ballot

5.    Campaign phase

6.    Election

7.    Post-election enforcement & implementation

Legislature-Referred Measures

1.    Legislature drafts and passes referral

2.    Measure placed on the ballot

3.    Campaign phase

4.    Election

5.    Post-election enforcement & implementation

Key Compliance Notes

• When does lobbying start?
• For citizen initiatives: typically, when signatures are circulated
• For referrals: at the legislative consideration stage and when the measure is submitted to voters

 

• Pre-signature activity
• Research
• Coalition-building
• Issue education

 

• Drafting language
• Usually preparation for lobbying
• Becomes lobbying if tied closely to an active campaign effort

 

• “Specific legislation” trigger
• Once a measure is clearly defined and advancing, it’s treated like legislation for IRS lobbying purposes

 

• State law overlay
• Petition rules, disclaimers, reporting, and pay-per-signature bans vary widely
• Federal tax law ≠ state election law (you have to comply with both)

 

After the Election

• Implementation & rulemaking
• Agencies interpret and apply the law
• Nonprofits can engage in administrative advocacy (not lobbying for tax code purposes, but could trigger state registration and reporting)

 

• Public education
• Explaining what passed (or failed) and what it means
• Must remain nonpartisan if done by a 501(c)(3)

 

• Litigation
• Defending or challenging the validity of a passed measure in court
• Not lobbying
• Permissible for 501(c)(3) organizations

 

 

Working Together

·      Many ballot measure activities happen in coalitions.

·      These coalitions could include different types of nonprofit organizations. Some may be 501(c)(3) public charities, while others could have 501(c)(4), 501(c)(5), or other tax-exempt status.

o   Remember, 501(c)(4)s and 501(c)(5)s have unlimited lobbying limits—this makes them a great ally in ballot measure work.

·      A 501(c)(3), when engaging in ballot measure work, must do so in a nonpartisan way.

o   Some examples of nonpartisan ballot measure work can include: circulating petitions, endorsing measures, registering voters, and more.

o   It’s important not to align your 501(c)(3)s position on a ballot measure with a candidate or political party.

o   They should also avoid targeting voters based on how they think the voters will vote for candidates on the ballot.

·      All joint lobbying activities, conducted with 501(c)(3)s and other types of organizations, should remain NONPARTISAN and not include suggestions of whom to vote for in candidate elections.

Ballot Measure Advocacy Funding

·      Because ballot measure advocacy is often considered lobbying, private foundations cannot earmark funds for this activity, but public (community foundations) can.

·      Consider approaching community foundations and individual donors to support your work.

o   BE AWARE: Some states are considering or have already passed legislation that prohibits foreign national contributions to ballot measure campaigns (could kick in if your organization receives donations from foreign sources).

o   Any donations earmarked for lobbying are not tax-deductible to the donor.

 

Resources

·      Seize the initiative

·      Ballot Measures and Public Charities: Yes, You Can Influence That Vote!

·      Ballot Initiative Strategy Center (BISC) Trends Watcher

·      BISC: 2026 Ballot Measures