Rules of the Game: The Bolder Advocacy Podcast

Nonprofits are important advocates on issues critical to every community, but sometimes the rules and regulations of advocacy can be barriers to entry. In Rules of the Game, Bolder Advocacy attorneys at Alliance for Justice use real examples to demystify these laws to help 501(c)(3) and 501(c)(4) nonprofits be bolder advocates, whether holding elected officials accountable, educating candidates, engaging voters, or lobbying for policy change.

Are the 501(c)(4) Rules Changing? 12/25/2024

Are the 501(c)(4) Rules Changing? 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 What is Memorial Hermann? Very basics of the case Basics of the holding Where does this court’s ruling apply? 501(c)(4) organizations must exclusively operate for the social welfare, how is that interpreted to mean primarily, and the limit on items that do not as social welfare as secondary activity. We frequently talk about one of those secondary activities a lot – partisan political work. But this case focuses on another thing – can you explain why commercial activity does not promote social welfare? The concern raised by some is the court’s move to a smaller insubstantial standard for commercial activity may also apply to political activity, limiting the amount advocacy groups can engage in. How does the law treat commercial activity and political activity differently, and does that distinction matter here for other courts that may be addressing this? Do (c)(4)s in the Fifth Circuit that engage in partisan political advocacy need to change what they’re doing or how much they’re doing? What about (c)(4)s outside of the Fifth Circuit? There’s another layer to all of this with (c)(4)s that have filed Form 1024s accepted by the IRS – can you explain what that is and why filing a 1024 now may be a good idea for some (c)(4)s that haven’t yet? What’s happening next with this case? What’s your take on how various media outlets have presented this case – do you think they’ve helped or muddied the waters? On a scale of 1 to 10 where 1 is a yawn and 10 is metaphysical crisis, where are we now with Memorial Hermann for (c)(4)s? Resources - Tim /episode/index/show/rulesofthegame/id/34355085

Transition Advocacy 12/11/2024

Transition Advocacy 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 for their hard work during the election. Discussing the organization’s nonpartisan voter engagement. Commenting on the demographics of who voted or didn’t vote. Encouraging a peaceful continuation or transfer of office. · Impermissible communications for 501(c)(3)s include: o Suggesting that the organization attempted to influence the outcome of an election. o Supporting efforts to draft a named person to run for office in a future election. o Declaring that the organization or voters will hold an elected official accountable in the next election. Transition Advocacy: Is it Lobbying? · Transition advocacy is a hot topic, especially after elections, and one of the most common questions we get from 501(c)(3) public charities is whether it counts as lobbying. The short answer? Sometimes, yes—but often not. · In general, lobbying involves efforts to influence specific legislation. For 501(c)(3) organizations operating under the insubstantial part test, advocacy for or against legislation qualifies may count as lobbying. · If an organization has made the 501(h) election—which allows nonprofits to maximize and clarify their lobbying limits—the IRS uses a different definition. Under the 501(h) expenditure test, lobbying breaks down into two categories: o Direct lobbying: Speaking to a legislator and expressing a view about specific legislation. o Grassroots lobbying: Communicating with the general public to express a view on specific legislation andincluding a call to action. · Under the 501(h) expenditure test, two key factors determine whether your activity qualifies as direct lobbying: o Are you speaking to a legislator? o Is the topic you’re discussing considered specific legislation? If the answer to both is "yes," it likely counts as lobbying. · Examples of lobbying activities during transition period: o Advocating about spending priorities o Supporting/opposing nominations of new exec cabinet officials or judiciary o Advocating for changes in laws or amending current laws o Advocating for a new program – if would require new legislation · Important to assess what you’re saying, who you’re saying it to, and whether any exceptions apply. Transition Advocacy: When is it Not Lobbying? · Some organizations may try to avoid engaging in lobbying activities so it’s important to understand what their non-lobbying options are during this transition · During this period, organizations can try to get to know their newly elected officials. Meeting with these officials, without trying to influence any nomination process or any piece of legislation (including the budget process), does not count as a lobbying activity. · On top of that, nonprofit organizations can do the following: o Recommend transition team members o Get involved in the executive order process o Develop relationships with these newly elected officials o Talk about nominations that do not require the advice and consent of a legislative body (or a legislative vote) o Actively participate in the rulemaking process § Beware: it may count as a lobbying activity at the state/local level o Take advantage of the 501(h) lobbying exceptions! Resources /episode/index/show/rulesofthegame/id/34354865

Giving Thanks 11/27/2024

Giving Thanks 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 incredible contributions to our communities this year. Natalie Ossenfort: Thank you to all of the amazing advocates who worked so diligently on ballot measures across the country to guarantee access to abortion, expand workers’ rights, and ensure the freedom to marry in state constitutions. By creating robust coalitions of nonprofit organizations with shared policy goals, these advocates secured several major wins. From a successful constitutional amendment in Arizona spearheaded by a group of nonprofits organized as “Arizona for Abortion Access” to the “Freedom to Marry” coalition in Colorado, nonprofits across the country organized for success this year and for the protection of our rights. We thank you for your amazing contributions. Monika Graham: Thank you to the Innocence Project, a member of the Alliance for Justice, for their groundbreaking work in the pursuit of justice and advocacy on behalf of the wrongfully convicted. Thank you, in particular, for your advocacy on the Marcellus Williams case. To Mr. Williams: our hearts are with you and your loved ones. To the Innocence Project: Thank you. Tim Mooney: Thank you for the resiliency of the nonprofit community in western North Carolina in the wake of Hurricane Helene. The North Carolina Rescue Collective delivered water, food, and supplies to local residents. Brother Wolf Animal Rescue also stepped up to ensure their animals were safe before the storm, and they continue their important work today despite extensive damage to their facilities. Brittany Hacker: Thank you to In Our Own Voice National Black Women’s Reproductive Justice Agenda. The organization educates the public and advocates for reproductive justice, while lifting up the voices of black women. They also actively engage in critical voter education and GOTV activities. Sarah Efthymiou: Thank you to the private and public foundations who support nonprofit advocacy efforts. In particular, the Gill Foundation funds charities that engage in LGBTQ+ advocacy to pave the way for a more inclusive future. In doing so, it empowers foundation grantees to tackle difficult policy challenges. Susan Finkle-Sourlis: Thank you to the nonprofits that worked so hard this election to educate voters and get out the vote. Shout out to the Interfaith Alliance for their “The Vote is Sacred Bus Tour,” a nonpartisan effort to boost civic engagement across the country. Victor Rivera: Thank you to the Health Forward Foundation, which endorsed Missouri's “Yes on 3” campaign to end Missouri’s abortion ban and the Missourians for Healthy Families and Fair Wages campaign. Their advocacy led to the protection of abortion access in the state, raised the state’s minimum wage, and secured paid sick leave guarantees. Melissa Marichal Zayas: Thank you to the Organization of Exonerees for your commitment to the fight for justice, your care for the recently freed, and for standing in solidarity with others who are still waiting for their voices to be heard. /episode/index/show/rulesofthegame/id/34140541

Ballot Measure Wins 11/13/2024

Ballot Measure Wins 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 charities and c4 social welfare organizations participate in ballot measure advocacy within their lobbying limits. Today we are going to discuss what happened – what did voters decide when it came to the issues of choice, democracy, LGBTQ rights, and worker protections. We are traveling across this nation from ME to OH – to FL, then head west AZ and CA, CO, and HI, and finally NE, to learn what voters decided. Lawyers for this episode Sarah Melissa Susan Show notes LGBTQ Ballot Measures Thanks! I would like to start us off by lifting up a number of ballot measure victories in the LGBTQ space. We frequently talk about litigation as an impactful, non-lobbying, form of advocacy. In fact, we had a recent pod episode on that very topic. Well, there were several ballot measures that were introduced to get ahead of potential litigation – specifically cases that might threaten the right to marry. Here, I want to highlight how voters in CA, CO, and HI used their ballots to approve constitutional amendments that will enshrine the Freedom to Marry into their state constitutions. Although the 2015 Obergefell decision has made state laws banning same sex marriage moot, lessons learned from the Dobbs decision overturning abortion rights; the proactive, legislatively referred measures are intended to safeguard their states’ freedom to marry if a conservative-majority U.S. Supreme Court were to overturn existing protections likely that these 3 ballot measures are the first in a wave of proactive measures to fend off (or respond to) any such attacks by a conservative-majority court Reproductive Rights Ballot Measures Voters in seven states approved ballot measures to enshrine reproductive rights in their state constitutions, including in two states with abortion bans. Missouri Amendment 3 establishes a constitutional right to reproductive freedom, which is defined as "the right to make and carry out decisions about all matters relating to reproductive health care,” including but not limited to childbirth, birth control, and abortion care. The amendment also provides that the state may only enact laws regulating abortion after the point of fetal viability. Similar abortion rights measures failed in , , and . 57% of Floridian voters supported their state’s right to abortion measure, but Florida requires at least of voters to support a constitutional amendment for it to succeed, which is a uniquely high bar. Arizona Proposition 139 amends the state constitution to guarantee a right to abortion and prohibits the state from restricting this right before fetal viability. San Francisco Proposition O establishes several local requirements that help to protect access to abortion and other forms of reproductive health care. Amarillo, Texas Proposition A, a so-called “abortion travel ban” initiative, was rejected by the city’s voters. Local businesses, organizations, and residents formed the Amarillo Reproductive Freedom Alliance to oppose the measure and protect reproductive freedom in the Texas Panhandle. Thanks Melissa, I can. In many states there were issues on the ballot that concerned democracy and constitutional rights. First stop - Ohio, Issue 1, its aim was to create a 15 member redistricting commission, made up of citizens across the political parties and ensuring representation from different areas of the state. Unfortunately this initiative failed. There was a lot of confusion surrounding this ballot measure. Many believed that the ballot language, which the Republican controlled ballot board wrote – was misleading and biased. Conservatives in the state are opposed to redistricting reform. The campaign for Issue 1, called Citizens not Politicians, took the issue to State supreme court, which sided with the Ballot board. The actual proposal by Citizens not Politicians was to ban partisan gerrymandering - and the ballot board’s language stated it would require gerrymandering. So much so that Both sides, pro and con – were using the same slogan to get out the vote. I was in Ohio, my home state, before the election and I saw yard signs that said - stop gerrymandering by voting yes and I saw signs that said - stop gerrymandering by voting no. Let’s go to Arizona where voters defeated three measures that would have taken away their voice in the democratic process. One on the election of judges and two on the ballot initiative process. First, voters weighed in on Proposition 137. This Ballot measure concerned the election of state court judges, a yes vote would end term limits for judges. A judge would have a permanent appointment until age 70. judges permanent appointments. Currently, State supreme court justices are limited to six-year terms and superior court judges are subject to 4 year terms. They must run for reelection. This proposition was rejected by voters – they voted to keep term limits for their justices. So, these judges will be accountable to voters when they run for reelection. Prop 134, which would changed the signature requirement in order for a measure to qualify for the ballot. It would essentially make it more difficult. Currently, the Arizona state constitution requires 15% of the number of voters in the last election. So if 1 million people voted in the last governors race, a ballot measure would need at least 150,000 signatures in order to qualify. There is no restrictions or requirements on where in the state the signer lives. Prop 134 would made it more difficult by requiring so many signatures to come from each legislative district in the state. Prop 136 – would have allowed opponents to a ballot measure to challenge any ballot measure before it went to the voters. Opponents could have engaged in costly legal battles, perhaps killing it before voters even got a chance to decide. Fortunately, both these measures were rejected by the voters. Did you know that slavery in some form is still part of some state constitutions? Both California and Nevada proposed ballot measures to remove language in their state constitutions permitting involuntary servitude as punishment for a crime. Voters in Nevada passed , joining eight other states that have passed ballot measures to abolish slavery in prisons in recent years. A similar proposal in California,  at the time of this recording has not yet been called. If it passes, it would prohibit prisons from punishing incarcerated people through involuntary servitude.   Lastly in Maine Question 5 – asked the question should Maine change its current state flag back to an historical version known as the Pine Tree flag, a simple pine tree with one star in the corner. Voters said no. Finally, we’d be remiss if we didn’t mention the ballot measure victory in Nebraska that will provide workers with paid sick leave. NE voters overwhelmingly passed Initiative 436, which will require employers to provide 1 hour of paid sick leave for every hour worked According to the initiative’s campaign, over 250K Nebraskans currently lack paid sick leave. More than 1/3 full time and more than ¾ part-time employees Initiative was supported by business community – recognizing that providing paid sick leave increases productivity, recruitment and lowers turnover Example of organizations that supports workers' rights joining forces with members of the business community to effect positive policy change Important to note here that Nebraska was joined by voters in Alaska and Missouri (all traditionally solid Republican states) in passing these progressive pro-worker policies. This is proof that there are so many issues, legislative ideas and progress that can be made through initiative process, from equality to repro rights to democracy to flag choice. Reminders and Resources Ballot measure advocacy is a great way to support your organization’s mission by educating the public on the issues, building coalitions with other community groups, and making change. The IRS considers supporting or opposing ballot measures a form of lobbying. Most states and some localities regulate ballot measure activities under their campaign finance law. Campaign finance rules may require registration and/or reporting if certain triggers or thresholds are met. We have several ballot measure resources you can check out at afj.org, including our full-length guide, Seize the Initiative, and a number of state-specific resources, too. We also have resources to help you navigate the laws related to other forms of advocacy, such as post-election and transition advocacy, and assess your advocacy capacity as you make your action plan for next year. Check out our recently released advocacy playbook series for more information about the many types of c3-safe advocacy and examples that are specifically tailored for different issues. Resources /episode/index/show/rulesofthegame/id/33887392

Individual Activity During Election Season 10/30/2024

Ask Us Anything - Electionpalooza Edition 10/16/2024

Ask Us Anything - Electionpalooza Edition 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 - Exception to coordination rule: FEC AO 2024-01 states that scripts and canvassing literature are NOT public communications, and therefore consulting with candidates and parties is not illegal coordination. - Both presidential campaigns are doing this, with one reportedly relying on it more than the other. - This practice is likely happening in many federal races (Senate and House). - Important: This is NOT available for 501(c)(3)s or for state/local candidates - Question: Can 501(c)(3) organizations comment on candidates or political parties in the context of an election? - Answer: - Yes, but tread carefully. - 501(c)(3) organizations must remain nonpartisan. - Comments should have an independent, nonpartisan, non-election-related reason. - Focus on the issue, not the candidate (e.g., correcting factual errors without discussing the candidate's attributes). - Before responding, consider: 1. Decide who speaks on behalf of the organization. 2. Script responses to stay on message and avoid crossing any lines. 3. Avoid discussing qualifications or endorsing/opposing candidates. - Example: Instead of “Voters should reject this misinformation,” say “Americans won’t stand for misinformation on public health issues.” - Criticizing or praising incumbents is less risky, but avoid implying support or opposition for re-election. - Question: Can nonprofit staff support candidates and express their opinion? - Answer: - Individuals have the right to participate and voice their own opinions when acting in their individual capacity. - 501(c)(3) organizations must remain nonpartisan. This applies to staff, board members, and volunteers when acting on behalf of the organization. - In official organizational events, staff should not engage in partisan activities (e.g., wearing a pro-candidate t-shirt). - In their personal time, employees can: - Participate in partisan election activity at home, online, or at rallies. - Use their own resources (email, social media) and must act outside work hours. - Put up lawn signs but not use them as Zoom backgrounds for organizational calls. - Canvas for candidates on the weekends but not encourage others during the workweek. - Every nonprofit needs a policy outlining the prohibition of using organizational resources for political activities. - Alliance for Justice has an example of such a policy. Resources /episode/index/show/rulesofthegame/id/33420942

Voter Assistance State Resources 10/02/2024

Voter Assistance State Resources 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 day. Attorneys for this episode: Tim Mooney Natalie Ossenfort Victor Rivera General Overview of Relevant Law · When engaging in any election-related activities there are several areas of law that your nonprofit should think about: o Internal Revenue Code: explains the types of activities your nonprofit is allowed to engage in accordance with the tax code § 501(c)(3)s: Keep it nonpartisan. No support or opposition of candidates. Allowed to engage in campaigns for or against ballot initiatives, constitutional amendments, bond measures, city charter amendments. Just remember that this activity may count as lobbying at the federal level. § 501(c)(4)s; (c)(5)s, (c)(6)s: Partisan political activities as secondary activities of org § PACs: Regulated by Section 527 of tax code. Partisan political work as focus, but different types of PACs may be restricted in terms of whether they can engage in coordinated vs. independent expenditures o Other federal laws, including the Federal Election Campaign Act: always going to be relevant in elections with federal candidates on the ballot § Provisional ballots available even if they aren’t under state election laws (i.e. can vote provisionally for POTUS if there’s a dispute as to registration status and resolve that later) § Accessible ballots required under the Help America Vote Act (HAVA). § Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) requires states to provide absentee ballots for military personnel, their families, and U.S. citizens overseas in federal elections. § Voting Rights Act (VRA) · requires jurisdictions with significant populations of non-English-speaking citizens to provide bilingual election materials and assistance, ensuring all voters can understand and participate in the process. · allows observers from the Department of Justice or the U.S. Commission on Civil Rights to monitor elections to ensure compliance with voting rights laws, especially in areas with a history of discrimination. o State law: Often regulates § Who, when, how you can register voters § Who is eligible to vote-by-mail (and when) § Line-warming activities designed to encourage voters to stay in line § Rules for poll watchers § Voter ID required in some states § And more! Practical Guidance Voter Assistance Series o Focuses on state law, but also includes some federal law tips throughout o (Questions answered include: o How can our organization help people vote by mail? o Can we help with a rides to the polls program? o How can we help voters already at the polls? o When might our work also trigger campaign finance laws? o Can we advocate for a new polling place? o Current states: o Alaska, Arizona, California, Colorado, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maine, Minnesota, Michigan, Mississippi, Nevada, New Hampshire, New Mexico, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Virginia, Wisconsin o Texas line-warming example o Reminder that many states don’t have polling places (in traditional sense) since they’ve shifted focus to vote-by-mail. Resources: · Practical Guidance Voter Assistance Series: · Rules of the Game: Guide to Election-Related Activities for 501(c)(3)s: · The Connection: /episode/index/show/rulesofthegame/id/33237392

Election Protection and Nonpartisan Voter Assistance 09/18/2024

Election Protection and Nonpartisan Voter Assistance 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 assistingvoters at the polls. and potentially afterwards. Whether it’s poll monitoring, ballot curing, staffing an election protection hotline, or providing rides to the polls, we'll discuss the rules that apply to 501(c)(3)s and 501(c)(4)s so that your organization can ensure that all eligible voices are heard this election season. Attorneys for this episode  Tim Mooney  Natalie Ossenfort Quyen Tu Shownotes Poll watching / observing Litigation Rides to Polls Ballot chasing and curing Poll monitoring Count monitoring Voting education Nonpartisan activity No support or opposition of candidates Facts and Circumstances Follow FEC rules if federal candidates on ballots (no incentives for voting or registering to vote) State law often adds layers of complexity here – be sure to know what is allowed in your state Ohio: must stay outside 100ft no-solicitation permitter when line warming Michigan: strict rules related to hiring a car to provide rides to the polls (effectively prohibited unless voter unable to walk) CO / TX: strict rules that apply when you want to hand out and collect voter registration applications Voter Assistance Series (AZ, CA, CO, FL, GA, IL, Maine, Michigan, Minnesota, Nevada, New Hampshire, New Mexico, NY, North Carolina, Ohio, Pennsylvania, TX, Virginia, Wisconsin) Voter Registration Rules Vote by Mail Rules Correcting errors on absentee ballots (ballot curing) Rides to Polls Rules Line Warming Activities Poll Watching What about selfies? Partisan Voter Protection Ballot Chasing and Curing can be done with a partisan focus (for instance, only trying to cure votes of one party, litigating on behalf of a candidate) Off limits for c3s, which must engage in nonpartisan advocacy ONLY Ok for c4s but counts as secondary activity Resources , released in partnership with the /episode/index/show/rulesofthegame/id/33071047

AI and Election Disinformation 09/04/2024

AI and Election Disinformation 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 emerging threat. Attorneys for this episode Quyen Tu, Melissa Marichal Zayas Guest: Jonathan Mehta Stein, Executive Director of California Common Cause and the California Initiative for Technology and Democracy (CITED) 1. Introduction to AI and Election Disinformation: - Jonathan Mehta Stein introduces the concept of AI and its implications for democracy. - Overview of CITED (California Initiative for Technology and Democracy) and its mission to protect democracy from AI-powered disinformation. 2. Understanding AI and Generative AI: - Explanation of artificial intelligence, generative AI, and their applications in everyday life. - Discussion of the potential dangers of AI when it comes to sensitive areas like crime prediction and loan approvals. 3. Deepfakes and Their Impact on Elections: - Definition and examples of deepfakes—AI-generated videos or audio that portray people doing or saying things they never did. - The global rise of deepfakes in elections, with examples from Taiwan, Slovakia, and the United States. 4. Local Elections and the Threat of Deepfakes: - Jonathan shares concerns about deepfakes being used at the local level, where they may go unnoticed and could significantly impact election outcomes. - The particular risks faced by communities of color, immigrant communities, and non-English speakers. 5. What Can Nonprofits and Community Members Do? - Practical steps for verifying information and combating disinformation in your community. - The importance of being a trusted messenger and educating your community about digital threats. 6. The Role of Tech Companies: - How major tech companies are responding (or not) to the challenges posed by AI and disinformation. - Discussion on the first U.S. presidential election where AI is playing a significant role. 7. Policy Solutions and Legislative Efforts: - Overview of the legislation being proposed to regulate AI and disinformation in the election context. - CITED’s policy framework for requiring digital watermarks and labeling AI-generated content. 8. Parting Thoughts: - Jonathan's optimism about the nonprofit sector’s ability to rise to this new challenge, and the urgency of addressing these threats in the short term. Resources - www.cited.tech - AI Threats in the Election - Commenting on Candidates in Campaigns - UC Berkeley IGS Poll on Digital Threats /episode/index/show/rulesofthegame/id/32812937

Litigation 08/21/2024

Litigation 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 law Relation to charitable purpose Not lobbying under 501(h) or insubstantial part definitions Not limited by IRS / Tax Code Spectrum of engagement Example: signed by over 225 organizations in support of the Fearless Foundation (currently under legal attack for a program that supports the funding of black female entrepreneurs) Example: In 2018, Alliance for Justice and Council on Foundations filed a joint in the case of Parks Foundation vs. Commissioner of Internal Revenue arguing for a narrow interpretation of what it means to “express a view on specific legislation” when determining whether a nonprofit’s activities constitute lobbying. Example: Lambda Legal focuses on litigation in support of LGBTQ+ rights and individuals living with HIV/AIDS. They represent clients in cases involving discrimination, marriage equality, and transgender rights, participating in all stages of litigation. . Example: Clean Water Act citizen suits suing polluters for discharges without a permit – we’ll talk more about this specifically later Standing: must show harm to the organization or members of the organization Publicly supporting (or opposing) another organization’s litigation Amicus briefs Representing clients Litigating as a plaintiff (citizen suits, standing) Things to think about The law (who are the experts in relevant area of law?) The courts (judges matter!) - For more check out AFJ’s federal and state court resources on our website. Capacity (internal or external) Staff and resources (funding and time) Reputation with funders, members, public In-house or outside counsel Media impact and PR Insurance (not sure if this is too deep in the weeds?) Examples Lawsuits typically target government agencies, industrial polluters, and corporations to enforce existing environmental laws Clean Water, Clean Air Act, National Environmental Policy Act (NEPA), Endangered Species Act, Resource Conservation and Recovery Act (RCRA), Safe Drinking Water Act Litigates claims of actual innocence made by individuals convicted of serious crimes in Texas. Example: Former client, Johnny Pinchback, wrongfully convicted of sexual assault of two teenage girls in Dallas (proven innocent via DIA testing) and formally exonerated via post-conviction habeas corpus litigation Stories of clients like Johnny led to increased public awareness of wrongful convictions and even legislative reforms Earthjustice (AFJ member) + Waterkeeper Alliance Legal Services Corporation & regional public interest law; Legal Aid at Work, Legal Aid Association of CA, CA Women’s Law Center, Tzedek Innocence Project of Texas (member of Innocence Network, which is also home to AFJ Member, Innocence Project) Resources Issue Advocacy: State Courts Hub AFJ Database of reports on federal judges and judicial nominees /episode/index/show/rulesofthegame/id/32594197

Student Advocacy 08/07/2024

Ask Us Anything 07/24/2024

Politically Motivated Attacks 07/10/2024

Politically Motivated Attacks Political attacks on nonprofit organizations can come in many forms, including legal challenges or public smear campaigns. Given the current political climate, organizations that engage in policy reform and election season advocacy are coming under increased scrutiny. As a result, it is crucial to be proactive and develop a comprehensive strategy to safeguard your organization’s reputation and operations. On this episode, we will discuss how your organization can ready itself in advance of potential politically motivated attacks. Lawyers for this Episode Monika Graham Susan Finkel-Sourlis Natalie Ossenfort Threats Directed at Nonprofit Organizations: Attempting to Criminalize Social Services launched investigation of an organization that provides services to the immigrant community were arrested after their organization’s charitable bail fund posted bond for individuals who protested against Atlanta’s “Cop City.” Congress Conducting Increased Investigations of Nonprofit Organizations issued Request for Information (RFI) asking responders to identify groups they believe are using voter registration and education to sway the outcome of candidate elections In May 2024, House Oversight and Accountability Committee Chairman James Comer and Chairwoman Virginia Foxx launched an investigation into the funding sources of about 20 organizations that have funded recent anti-Israel demonstrations across U.S. college campuses Using Repressive Tactics to Discourage Public Participation with a misdemeanor obstruction of highway or other passageway after the peacefully marched in protest of a confederate monument arrested and charged with criminal trespass for participating in a protest at the University of Texas Incorrect or purposely distributing misinformation around elections. Other threats include organizations being covertly contacted by those who want to catch them “red-handed” in an illegal act, doxxing, and more! Tips for Preparation: Adopt Clear Organizational Policies: Organizations should adopt policies regarding nonprofit activities, communications, and responses to political issues. Ensure that all staff and board members are trained and aware of these policies, and maintain copies of signed policies for your records. It is a best practice to include these policies in your employee handbook and to require signature during employee onboarding. If you don’t already have policies in place, consider their adoption. to establish expectations for staff when acting on behalf of the organization vs. in their individual capacity Social Media Policy, including information on how to maintain boundaries between work-related and personal use of social media Prepare Staff and Volunteers: Review and understand the rules for engaging in advocacy, including lobbying and election season advocacy. This should include a review of local, state, and federal laws that may apply to your organization’s activities. for your team so that everyone is on the same page and understands how to properly track, report, and engage in important public policy and election-related activities. If training is not an option, encourage your staff to review nonprofit advocacy rules on their own time (see resource suggestions below). Train staff on how to deal with questions. Don’t let anyone pressure you to say something you don’t want to state. Let your staff know that it is always better to report any suspicious activity, and identify who staff should notify if they suspect that something is awry. Have a legal response plan in place that designates legal counsel to address potential challenges swiftly and an organizational leader, who is authorized to respond to accusations made against your nonprofit. Consider requiring staff to participate in IT trainings designed to increase their awareness of potential online threats. Keep Good Records & Remember to Report: Keep accurate and complete records, and ensure your filings are in order. Nonprofits should carefully track their lobbying, ballot measure advocacy, and other projects to comply with lobbying limits and ensure accurate reporting to the IRS and relevant state and local authorities. Remember to timely and accurately file any required lobbying disclosure reports, campaign finance (e.g. ballot measure) reports, and your organization’s annual exempt organization return (990). Check out our resource entitled “Keeping Track" to make sure staff are trained to properly track their time. If you are attacked, stay calm. Reassure board members, staff, volunteers, and supporters that you are diligently gathering the facts. Share information with your coalition partners and allies so they are not caught off-guard and can prepare for questions that may arise. Go back to your response plan, and put it into action. Resources /episode/index/show/rulesofthegame/id/32054687

Election Detective 06/26/2024

Tax Law and Elections with Erin Bradrick 06/12/2024

Federal Elections 101 05/29/2024

Nonpartisan Voter Engagement with Nonprofit Vote's Brian Miller 05/15/2024

Nonpartisan Voter Engagement with Nonprofit Vote's Brian Miller On this edition we chat with Nonprofit Vote Executive Director Brian Miller about the organization’s efforts to expand nonpartisan voter engagement, the fascinating findings in its latest , and the challenges and strategies for a successful nonpartisan campaign. On this episode Tim Mooney Quyen Tu Special Guest - Brian Miller, Executive Director, · Introduction · About Nonprofit Vote · National organization providing resources and training to help nonprofits engage communities in voting and elections. · Resources include guides on staying nonpartisan, running voter registration drives, and understanding relevant regulations. · Why Nonprofit Voter Engagement Matters · Fosters an inclusive democracy by narrowing gaps in voter participation along lines of race, income, and age. · Nonprofits serve as secondary actors with motivations to ensure their communities have a voice in democracy, unlike political campaigns that focus on likely voters. · The Nonprofit Power Report · analyzed voter data from nonprofits in eight states during the last midterm election. · Key Findings: · Nonprofit-engaged voters were more likely to be low income, younger, and voters of color. · Nonprofit engagement boosted voter turnout by 10 percentage points on average. · Higher turnout rates were observed for voters of color (+12%), young voters (+14%), and low-income voters (+15%). · Challenges and Solutions in Voter Engagement · Common barriers include perceptions of partisanship and lack of resources. · Importance of understanding legal boundaries to overcome partisanship concerns. · Philanthropy for Voter Engagement Initiative partners with foundations to provide resources and support for voter engagement. · Strategies for Effective Voter Engagement · Reverse door-knocking for organizations with high foot traffic (e.g., food pantries, community health centers). · Incorporating voter engagement into community outreach for issue-focused groups (e.g., environmental organizations). · Leveraging trusted relationships and human interaction alongside technology (e.g., online voter registration). · Role of Technology and AI · Online voter registration and the importance of balancing technology with human interaction. · Ensuring accessibility and reliability of information, especially with the rise of AI-generated misinformation. · Encouraging use of trusted sources like .gov addresses for accurate information. · Engaging Underrepresented Communities · Importance of working through existing nonprofits with cultural competency. · Ensuring accessibility in communications and polling locations for people with disabilities. · Examples of best practices and collaborations with organizations like the National Disability Rights Network. · Resources · · · · · /episode/index/show/rulesofthegame/id/31276767

Can We Rent (Or Share) That? 05/01/2024

Can We Rent (Or Share) That? On this episode, we will discuss how nonprofits can respond when they are asked to share their resources with others. Whether it’s data, a mailing list, office space, or something else of value, your nonprofit needs to know what to do when asked to share its assets with other people and groups. And guess what! Your organization’s tax status will come into play. If you’re a 501(c)(3), you need to be particularly careful, especially when interacting with non-(c)(3)s. We’ll dive in deep and answer the question “Can We Rent (or Share) That?” in the minutes to come. Our Attorneys for This Episode: Monika Graham Natalie Ossenfort Victor Rivera General Principles when sharing resources and working with other organizations: · Principle #1: Moving resources from a 501(c)(4) to a 501(c)(3) is simpler from a legal standpoint than the reverse (uphill / downhill principle). · Principle #2: Your tax-exempt status follows you into your transactions with others. · Principle #3: Documentation is important. · Principle #4: Stay in your lane. What does this have to do with renting and exchanging resources? · 501(c)(3)s are prohibited from supporting or opposing candidates, including making contributions to candidates and political organizations. · 501(c)(3)s should not provide resources to a 527 without charge. Instead, they should rent or sell these types of assets for fair market value and make them equally available to any other political entities that request them. o Best practice is to use a list broker. · When supporting the work of (c)(4)s, which can engage in some partisan political activity, 501(c)(3)s must be mindful to protect their assets and to ensure that they aren’t giving away their lists, data, and spaces for partisan political use for free and that any rental transactions are well documented and comply with the law. Can our (c)(3) rent out event space to candidates and other types of organizations? · Whether something constitutes impermissible support or opposition of candidate depends on the facts and circumstances. Some things the IRS considers in the event space rental context include (Rev. Rul. 2007-41): o Whether the facility is available to all candidates in the same election on an equal basis, o Whether the fees charged to candidates are at the organization’s customary and usual rates, o Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate, and more! · Discussion of two examples. What about newsletter ad space? · If a 501(c)(3) rents / sells ad space in its newsletter or other publications, it can offer that same service to others (even candidates), but it must charge fair market value and allow all entities and candidates the same access without regard to political preferences. o Remember to indicate which ads are “paid advertising” in the publication. · If it usually gives out ad space for free (instead of requiring a financial transaction), it could potentially do the same with other organizations, but all free content must be nonpartisan. · What if a (c)(4) has a newsletter and wants to provide ad space to a (c)(3)? o It’s easier for (c)(4)’s to share resources with (c)(3)s since (c)(4)s can do everything (c)(3)s can do, and more! o A 501(c)(4) could rent space to the (c)(3) for fair market value or give it away for free. Voter Registration Files · 501(c)(3)s should not freely share with partisan organizations the voter registration lists or other data that it collects during voter registration or education activities. · This information is a valuable asset owned by the 501(c)(3). Voter registration files may only be rented to a 501(c)(4) or 527 at fair market value or exchanged for data of equal value. Even then, the circumstances in which these agreements can be made are complex, so it’s wise to get legal advice. · This type of agreement can also cause opposing parties or groups to raise their eyebrows and question the legality of the transaction. Before engaging in this type of transaction, figure out how much risk your organization is willing to incur. 501(c)(3)s can’t give things away for free to non (c)(3)s that could potentially use the (c)(3)’s assets for partisan political purposes. So, if you’re thinking about sharing your organization's resources with others, exercise caution and consult with counsel when needed. Resources: Monika, can you add a resource link to that revenue ruling you cited in the event space discussion? /episode/index/show/rulesofthegame/id/30987883

Ballot Measure Advocacy Takeaways from the 2024 BISC Conference 04/17/2024

Election Season Advocacy: What Your Foundation Needs to Know 04/03/2024

Election Season Advocacy: What Your Foundation Needs to Know Guess What! It’s 2024, which means we have a BIG election on the horizon. Not only will voters take to the polls to decide who will be our next President, but they’ll also be invited to speak their voice in relation to ballot measures and down ballot races that will impact our laws and determine who will represent us in local government, state legislatures, Congress, the courts, and more! With so much at stake, many private and public foundations may be curious whether they have a role to play. The answer is YES! And, this episode of the podcast will discuss the rules foundations need to know when funding and engaging in nonpartisan election activities. Attorneys for this show Monika Graham, Tim Mooney, Natalie Ossenfort Show Notes · General rule: private and public foundations (as 501(c)(3) organizations) are permitted to engage in and fund nonpartisan election season activities. o No support or opposition of candidates for public office (including candidates running in “nonpartisan” races) o No telling people who to vote for on their ballots or encouraging them to vote for particular political parties o Keep it NONPARTISAN. The facts and circumstances matter. o Remember that special rules will apply to private foundations when it comes to voter registration activities and ballot measures (discussed later in this episode) · General GOTV Activities (not talking voter registration here) o Both private and public foundations are permitted to engage in nonpartisan get-out-the-vote (GOTV) activities § Avoid referencing parties or candidates § Do not suggest who people should vote for § Use nonpartisan targeting only o Examples § Communications posted on social media reminding readers that “Your Vote is Your Voice” without reference to candidates and parties and without suggesting that people vote for candidates who have particular stance on issues of importance to the foundation § Communications circulated at local events that remind people to “Vote. It’s Easy!” and provide information on where, when, and how to vote. · Make sure you get the information correct · Don’t target your outreach based on partisan criteria (i.e. populations / communities who you think are likely to vote for certain types of candidates) o As always, remember that other laws (like state law) may apply to your work in addition to the tax code rules requiring nonpartisanship. · Candidate Education o Offer educational resources and materials to ALL candidates o Provide only information that is previously gathered § Avoid generating and analyzing new data or conducting new research per a candidate’s request § But, do feel free to point candidates to information posted publicly on your website o What if a candidate or campaign staffer calls your offices asking for talking points for an upcoming rally? Resist the urge to provide them with that information because it equates to an impermissible candidate contribution. · Voter Registration o 501(c)(3) Public charities are permitted to engage in and fund nonpartisan voter registration activities. § This means that not only can community foundations directly fund their public charity grantees’ voter registration drives, but they can also engage in voter registration themselves. § Just remember to keep it nonpartisan and to follow state and federal law. o Now private foundations are subject to more restrictive rules when it comes to voter registration. § Private foundation cannot fund voter registration drives whether they are doing it themselves or making grants earmarked for them - unless the drive is nonpartisan and conducted in 5 or more states over multiple election cycles § This means that many of their public charity grantees’ will not be eligible to receive grants that are earmarked for voter registration. § BUT, it does NOT mean that public charities can’t use funds provided through a general support grant for nonpartisan voter registration purposes. · What about ballot measures? o Ballot measures are effectively pieces of legislation, and it’s the voting public with the power to vote on them. o Whether it’s a bond proposal, constitutional amendment, or other type of initiative, public charities are allowed to support or oppose ballot measures. o But, because of their legislative nature, support or opposition of measures qualifies as lobbying. o Public charities (like community foundations) are limited in how much lobbying they are permitted to do under the tax code and should count their ballot measure activities (and grants earmarked for ballot measure advocacy) against their lobbying limits. o Private foundations are effectively prohibited from lobbying due to a steep excise tax imposed by the tax code. As such, they should avoid supporting or opposing measures and earmarking grants for that purpose. Resources · Investing in Change: · Community Foundations o Rules of the Game a Guide to Election Related Activities: o Election Checklist for Public Charities: · Private Foundations o Voter Registration Rules for Private Foundations: o Voter Engagement Messaging and Activities for Private Foundations: · Election Activities of Individuals Associated with Private and Public Foundations: · 4/17 Public Webinar on Foundations and Election-Related Activities: /episode/index/show/rulesofthegame/id/30629863

Ask Us Anything 03/20/2024

Bold AF with Vu Le 03/06/2024

Bold AF with Vu Le For our 100th episode, we are excited to chat with the incomparable Vu Le of . Vu brings his unique blend of insight, humor, and a pinch of provocation to the table, all wrapped up in the perspectives you've come to know from his writing. Vu is a treasure trove of wisdom for the nonprofit world and his takes are all his own and don't necessarily reflect those of Alliance for Justice. A huge thank you for listening (and occasionally watching) our brand of spicy tax law for these 100 episodes, and what a better way to celebrate than with a guest who's not afraid to shake things up all in the name of progress and passion for the cause. • Introduction to Vu Le: His background and approach to writing about the nonprofit sector. • Humor and Seriousness in Nonprofit Work: The balance between using humor and addressing serious topics in the sector. • Finding One's Voice in the Nonprofit Space: Advice on how to develop a unique voice and perspective. • Critiques of Nonprofit and Philanthropy Practices: Vu's views on overhead costs, salary transparency, lack of investment in advocacy, and the need for nonprofits to challenge conventional practices. • Role of Funders and Power Dynamics: Discussion on how funders influence the nonprofit sector, the concept of "funder fragility," and the push for transparency and honesty in grantmaking. • Advocacy and Legal Challenges: The importance of advocacy work, the challenges faced by nonprofits in political environments, and the need for legal support. • Celebrating Nonprofit Achievements: Acknowledgment of the sector's vital role in societal progress and the need for greater appreciation and support. • Predictions and Challenges for the Future: Reflections on the sector's future challenges, including political influences and the need for a unified response to societal issues. Read more of Vu’s work at . /episode/index/show/rulesofthegame/id/30172098

The Connection 02/21/2024

The Connection On this episode, we discuss The Connection, Bolder Advocacy’s go-to guide on how to create and operate 501(c)(3)s, 501(c)(4)s, and political organizations. In 2024, we release our 5th edition of The Connection and include several important updates your nonprofit needs to know about as we move into a contentious election season. If your nonprofit has questions about how to safely operate affiliated organizations or how to boost civic engagement in coalition with organizations that have a different tax-exempt status than your own, The Connection has the answers. Attorneys for this show Natalie Ossenfort, Sarah Efthymiou, and Susan Finkle-Sourlis Show Notes · The Connection is one of Bolder Advocacy’s core advocacy resources. o It pairs well with: § “Being a Player” (guide to lobbying regulations for advocacy charities) § “The Rules of the Game” (guide to election-related activities for 501(c)(3)s) o This is the go-to resource for organizations on how they can amplify their impact and build grassroots power by utilizing multiple types of tax-exempt entities to address social problems and pursue policy change. o It discusses the best practices you need to know about when working with 501(c)(3)s, 501(c)(4)s, and PACs o The Connection was first published in 1988 and is primarily authored by Holly Schadler at Trister, Ross, Schadler, and Gold (with contributions from several of her teammates and allies in the field) o 5th Edition releasing end of February or early March 2024 · What can you find in THE CONNECTION? o Details on several different types of tax-exempt organizations and the advocacy activities they can engage in o The rules 501(c)(4)s need to know when lobbying and engaging in political activities o Information on how to create and operate affiliated c3 and c4 organizations (including a step-by-step overview of c4 formation procedures) o The rules governing PACs (including state PACs federal PACs and 527s) o Sample cost sharing agreement, sample 501(c)(3) public charity to 501(c)(4) grant agreement, information on the Lobbying Disclosure Act, and more! · What’s new in the 5th edition? o Information on new FEC disclaimer requirements for “internet public communications” o Social media guidance for affiliated 501(c)(3) and 501(c)(4) organizations o Details on a recent FEC ruling impacting the use of disclaimers for text messaging o Requirements for Super PACs and hybrid PACs (also known as Carey Committees) · "The Connection” also contains several concrete examples to illustrate how the rules apply in real-world scenarios (utilizing fictional tax-exempt organizations, of course). o These examples answer questions like: § What happens when a 501(c)(3) wants to make a grant to its affiliated 501(c)(4) for an educational research project? § What happens when a 501(c)(3) conducts a nonpartisan voter registration drive and wants its affiliated 501(c)(4) to have access to the list of registered voters? You’ll find out in “The Connection” that it can’t just give the list to its affiliated 501(c)(4) at no charge, but it could in some instances (when allowed under state law) sell its list at fair market value via an arms-length transaction. § And, what happens when a c4 publishes a monthly magazine on mission-related issues and then, in one edition of the magazine, decides to include an article about its candidate endorsements? · There are examples of required disclaimers for independent expenditures and electioneering communications too. o Brand new FEC regulations, published in January of this year, clarify what types of communications fall within the definition of “internet public communications” and what types of disclaimers are required when these communications expressly advocate for the election or defeat of federal candidates. o The latest edition of “The Connection” addresses how the law requires these disclaimers to be adapted for different communication formats. Whether it’s a communication including text and graphics, a video, or an audio-only statement, disclaimer requirements vary. o As such, “The Connection” is not only good for frontline nonprofit advocates, but for Communications, HR, and Accounting staff too! Resources (Strategies for Creating and Operating 501(c)(3)s, 501(c)(4)s, and Political Organizations) (A Guide to the IRS Lobbying Regulations for Advocacy Charities) (A Guide to Election-Related Activities for 501(c)(3) Organizations) /episode/index/show/rulesofthegame/id/30033588

Grassroots Advocacy 02/07/2024

Nonpartisan Election Year Advocacy 01/24/2024

Nonpartisan Election Year Advocacy On this episode, we discuss best practices for 501(c)(3) public charities conducting advocacy and nonpartisan activities, like get out the vote or voter education activities during an election year. Election year is upon us and the presidential primaries and caucuses, and primaries for other elected offices are starting to take place and will continue through the November General election. Attorneys for this show Monika Graham, Susan Finkle-Sourlis, and Leslie Barnes Show Notes · May 501c3 public charities advocate in an election year? How can a public charity be involved in an election? · Types of nonpartisan activities that a 501(c)(3) may conduct include: o Educating voters and candidates on the issues that are important to the people/community the organization serves. o Mobilizing voters and supporting democracy o Hosting candidate debates and forums o And much more · What are the IRS regulations surrounding advocacy and democracy work o IRS has held that supporting democracy is a charitable activity, 501(c)(3)s have a role to play in our elections! o Activities must further the organization’s charitable mission o Activities must remain nonpartisan, cannot support or opposition of candidates running for public office · The Facts and Circumstances test to determine whether or not communications or activities are nonpartisan. o The IRS applies a “facts and circumstances” analysis to determine whether a charity’s communication is conducted in a nonpartisan manner or is really a veiled attempt to support or oppose candidates. o When the IRS says “support or opposition” of candidates, that prohibition is broader than the explicit act of giving money to a campaign or saying outright that you should vote or not vote for a candidate. It’s not a bright line rule. o Analysis is required across the spectrum of risk. It is an assessment of the risk. · Discussion of the elements of the Facts and Circumstances Test. o Does the communication refer to a candidate or election? o Timing, upcoming election or is there another event outside of the organization that happened? o Organization is discussing its core issues? Or is it comparing the organization’s issues to a candidate’s position? o Who are you talking to? Who is the audience? Who are you targeting? o Do you have a track record of discussing the issue? o Are you discussing a wedge issue? What is a wedge issue? ** The discussion of this topic is from the view of 501(c)(3) public charities. Other types of nonprofits, like 501(c)(4)s do have the ability to undertake partisan activities as a secondary purpose. Resources – Guide to nonpartisan election related activities for 501(c)(3)s – Chart - Factsheet /episode/index/show/rulesofthegame/id/29565323

Ballot Measure Insights 01/10/2024

Ballot Measure Insights On this edition, we're thrilled to welcome from Elias Law Group, bringing her fresh perspective after successfully guiding clients to victory in the critical 2023 Ohio reproductive rights ballot measure fight. Emma will help shed light on the essential considerations for tax-exempt organizations before taking the plunge into a ballot measure campaign. Attorneys for this Episode Quyen Tu Tim Mooney Shownotes · Introducing Emma · Lessons from Ohio: o Progressives can work together to protect fundamental rights – and can be successful, even in states where conservatives otherwise control the state. o We are seeing conservatives attack the ballot measure process at every point in the process. We need to think about what we can do to bolster our efforts from the very beginning to defend against attacks. · · Ballot measure considerations Two major considerations: state campaign finance obligations and federal tax implications: o State campaign finance rules: § Registration & reporting obligations § Is there already a main ballot measure committee? § Do you want to be an independent expenditure committee? · Will you trigger registration or reporting by your planned activity? o If so, will this include donor disclosure? § Disclaimer obligations (including those you might not have thought of) - both for entities themselves and top donors. o Also, need to be careful about implicating federal campaign finance rules – even referencing federal candidates or parties in communications could create coordination issues and lead to inadvertent in-kind contributions. § Advocacy and education outside of registration/reporting requirements · Typically, communications to the public on the general subject addressed by the ballot measure, which do not refer directly or indirectly to the ballot measure itself, will not be regulated by state campaign finance. · However, state laws vary so you should check state and local law to confirm. o Federal tax implications: § In general, for public charities, advocating for or against ballot measures will be considered “lobbying” under federal tax law; public charities can only do an “insubstantial” amount of lobbying. · If the organization measures its lobbying under the 501(h) expenditure test, it will need to count work on a ballot measure as direct lobbying once a petition is circulated among voters for signatures. · If the organization measures its lobbying under the insubstantial part test, the IRS has provided less clarity; generally “influencing legislation.” · Communications to the public on the general subject addressed by the ballot measure, which do not refer directly or indirectly to the ballot measure itself, will generally not be considered lobbying. § Since 501(c)(3) organizations can only do an “insubstantial” amount of lobbying, many entities that engage in ballot measure work are organized as 501(c)(4) organizations, which can do unlimited lobbying under federal tax law. Also considered “primary purpose” activity. Resources · · National Conference of State Legislators: /episode/index/show/rulesofthegame/id/29387033

Nonprofit New Year's Resolutions 12/27/2023

Nonprofit New Year's Resolutions On this episode, we’re going to talk about those pesky new year’s resolutions… and no, we’re not talking about signing up for a gym membership or signing up for a marathon. We’re talking about resolutions that nonprofit organizations can apply as we enter into the year 2024. As you all know, 2024 is like Stefon from SNL, it has everything…primaries, general elections, an additional day… So as you are headed for your holiday break, we wanted to leave you with a list of things your nonprofit organization can do as we head into the new year. AFJ Team Members on this Episode: Natalie Ossenfort Monika Graham Victor Rivera On this Episode: Top ten things your nonprofit organization can do to maximize its advocacy in 2024: [drumroll] Host an elections training for staff ahead of the 2024 primaries and general election. Remember that while 501(c)(3)s are not permitted to support or oppose candidates for public office, they CAN engage in nonpartisan election-related activities. Bolder Advocacy can help you navigate the do’s and don’ts with an elections workshop. Request a through our website or check out one of our many 2024 public webinars. Consider organizing a GOTV campaign or voter registration drive. Check voter registration deadlines that apply to primaries and general election. Brush up on your state’s voter engagement and registration laws. Check out our created in partnership with The Democracy Capacity Project. Remember that all 501(c)(3) voter registration efforts must be nonpartisan. Prepare staff and volunteers to NOT answer the question: “Who should I vote for?” Offer services to all. Avoid partisan targeting. Invite members of your coalition to participate in a voter education campaign, which could include a nonpartisan . Guidelines for creating 501(c)(3) safe candidate questionnaires and voter guides include: Use unbiased, open-ended questions (distributed to ALL candidates). Cover a broad range of issues. You’ll also want to avoid comparing your organization’s position on an issue to where candidates stand. Publish all responses impartially and equally (with no editing or variations in font, formatting, etc.), and make the final guide generally available to the public. Remember NOT to include candidate pledges. Also, do not coordinate with candidates and campaigns. Just remember, facts and circumstances matter, so consult with Counsel if you have any questions regarding your specific voter education activities. Organize during election season. Remember to make the distinction between a candidate appearance and an incumbent appearance. Candidate appearances: must invite all viable candidates, avoid expressing support or opposition for candidate, do not allow candidate fundraising, and ensure compliance with state and federal election laws. Policymaker appearances (in official capacity, unrelated to candidacy): No equal opportunity required, but make sure you’re working with official staff (not campaign staff) and that you reiterate to the incumbent and their staff in writing that you are a 501(c)(3) that is not allowed to support or oppose candidates. Incumbents who are also candidates should not mention their candidacy at your event. And you should also avoid speaking to their upcoming election and focus, instead, on their official acts as policymakers. If you are a , consider making independent expenditures or coming up with a list of endorsements. 501(c)(4)s can engage in partisan political activity as a secondary activity of the organization, but they are prohibited from making candidate contributions and coordinating activities with federal candidates and campaigns (under federal election law) and are oftentimes subject to similar prohibitions at the state and local level. IE’s and other partisan activity may trigger campaign finance reporting. If your 501(c)(4) has an affiliated 501(c)(3), remember that 501(c)(3)s can’t support or oppose candidates. This means that any (c)(4) partisan work should be kept entirely separate from any joint projects you may have between your organizations and be carried out with (c)(4) resources ONLY. Don’t forget… you can continue to advocate or lobby for issues that are central to your organization’s mission! Know your organization’s . Be aware of state and local lobbying laws that might apply to your work. Our State Practical Guidance - Lobbying series (created in partnership with the Democracy Capacity Project) now includes state-level guidance for all 50 states and DC. Educate supporters, policymakers, allies, and other interested parties about the current policies and problems affecting your community. Produce resources that reflect the real story of your community and its needs. If you’re a 501(c)(3), avoid comparing your organization’s position on an issue to where the candidates or parties stand on that issue. Have a track record of working on the issue. Talk about issues as they arise, as opposed to timing your issue-based communications to coincide with upcoming election dates. Avoid suggesting how voters should vote or mentioning the election in relation to your issue advocacy. Don’t be afraid to , but remember the facts and circumstances matter. To avoid impermissible partisan activity, 501(c)(3)s should: Focus on what was said (the issue), not who said it (the candidate). Avoid discussing a candidate’s record or qualifications. Avoid talking about voters and making references to upcoming elections. Avoid identifying candidates by name. Issue disclaimers / reminders of your (c)(3) status and inability to support or oppose candidates for public office. Make sure any staff who speak on behalf of the organization are well-trained and understand the rules. Write an Op-ed and share your expertise on an issue that is core to your nonprofit’s mission, and establish your organization as a trusted thought leader. Launch or engage in litigation to challenge an unconstitutional law Litigation is different from lobbying and not subject to c3 lobbying limits. Remember that state and federal courts matter. To learn more about your state courts or the federal judiciary, visit . Resources: Factsheet Factsheet Factsheet /episode/index/show/rulesofthegame/id/29136018

Firewalls & Programmatic Independence 12/13/2023

Advocacy Successes 2023 11/29/2023

Advocacy Successes 2023 On this episode we’re excited to highlight nonprofit success stories from around the country. While we talk about lobbying on this podcast, legislative wins are one type of advocacy victory. We’ll look at some legislative victories as well as other types of advocacy such as relationship building, corporate advocacy, and funding wins. For some organizations, legislative victories can bring additional resources to your community. For other organizations, legislative victories can serve as harm reduction in the interim while we build a multi-racial democracy. We’ll also highlight strategies for talking about advocacy success to your donors and community. Lawyers for this episode Leslie Barnes Sarah Efthymiou Ballot Measure Victories · Ohio Issue 1 o Double digit victory o Intersectional coalition work of grassroots organizations o Ohioans for Reproductive Freedom was one coalition of community-led nonprofits ranging from faith-based organizations, to racial justice and transgender rights nonprofits, from labor organizations to trade associations. · Other states that led the way on democracy-related measures by Victor Rivera Labiosa California Legislative Victories – “Hot Labor Summer” · SB 616, paid sick leave o CA Work & Family Coalition, a coalition of community nonprofits o Part of the coalition’s strategy involved gathering variety of voices to be heard by collecting stories and bringing those voices to the policy makers. · SB 525, minimum wage increase to $25/hour for CA’s lowest-paid health care workers o SEIU United Healthcare Workers West Organizing Victories – Equitable compensation · Black Leadership Action Coalition of Kentucky (BLACK) and Advocacy Based on Lived Experience (ABLE) 2 grassroots organizations · Adopted policies that center impacted community members in their work by compensating directly impacted volunteers for contributing their lived experiences and community organizing skills. · See guest blog below in shownotes Strategies for talking to funders · Follow your funder’s lead · Investing in Change for other metrics to measure success · Don’t take credit candidate victories Resources · – Ballot measure hub tracking challenges to direct democracy, past and upcoming ballot measures · · Two-part piece on Equitable Compensation Alicia Hurle o o /episode/index/show/rulesofthegame/id/28826363

Foundation Funding Tips for Public Charities 11/15/2023

Foundation Funding Tips for Public Charities On this episode, we’re going to talk about funding… More specifically, how your nonprofit can raise dollars from private and public foundations to support your advocacy work. We’re joined on this episode by Emily Harting, AFJ’s Director of Foundation Relations. AFJ Team Members on This Episode: Emily Harting, Natalie Ossenfort, Victor Rivera Introducing Emily Harting Tips for Groups Working to Identify Potential Foundation Partners: Start with path of least resistance – review foundation websites. Find out who funds your organization’s allies (groups whose work you admire). Connect with board members to assess their networks and seek out their advice. Review your organization’s history of foundation funding and consider reapproaching former funders. Other Avenues for Foundation Research: ProPublica (free access) Instrumentl Candid Foundation Outreach Recommendations: Make the job of the foundation program officer as easy as possible. Show them clearly and succinctly the connection between the foundation’s priorities and the work of your organization. It’s always best to use a connection if you have one (i.e. board member or ally). Send an email introduction explaining your organization and how you think it aligns with the funder’s priorities. If your organization issued a report, is in the news, or is hosting an upcoming event, you can use that to prompt outreach to a potential funder. Best Practices When Preparing for a Meeting with a Potential Foundation Partner: Brief your staff, internal participants. Create a “POP” Agenda. Purpose (of meeting) Outcome (desired results) Process (rough outline of who speaks when and about what) If it’s an in-person meeting, plan to have some organizational materials ready. If possible, also have resources ready to send following the meeting to continue to build communication/relationship. Proposal Process: Understand foundation proposal guidelines and preferred templates (if any). If they don’t have a template or provide guidelines, best to build a general template including: Intro paragraph with funding request ($$ and purpose: program/GOS); A brief overview of who your organization is and its history; A description of your programs and recent work you’ve done; Conclusion reinforcing your request. Connect your work to the foundation’s mission to demonstrate shared priorities. Write clearly. If the foundation has a proposal submission portal, submit your application early in technical issues arise. Be prepared to provide a budget, proof of your 501(c)(3) status, recent audited financial statements or 990s, a board list with affiliation, a staff list, etc. What About General Operating Support (GOS)? Funders usually start with a project grant, but some will give GOS outright. Remember to keep the funder up-to-date on progress throughout the grant period and share work products (resources or reports, videos, testimonials etc). Report on the grant as requested, when requested, and with the materials requested. Your nonprofit is more likely to receive GOS after you have built a trust-based relationship with your funder. Other Practical Tips: Remember that both you and the funder are hoping your organization is a match: they want their funds to support great work! Program officers are people. You’ll achieve the best results when you have a trusted relationship with each other. Ask your program officers for advice and thoughts on your strategy and programs. Don’t be afraid of your funder. If you run into a challenge, tell them. They might able to assist you in overcoming it. Keep your funder in the loop. Don’t be afraid to toot your own horn! Play nice in the sandbox. Be real and be realistic. Resources: Bolder Advocacy – podcast episode – podcast episode - Also check out their physical offices where you can get assistance and resources for FREE in New York, NY; Atlanta, GA; Cleveland, OH; or Williamsburg, VA. /episode/index/show/rulesofthegame/id/28587068

Rules of the Game: The Bolder Advocacy Podcast

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