Nonprofit Advocacy

1. Nonprofit Advocacy Presentation to Spark NH July 27, 2012 Jack Lightfoot, Child and Family Services Based on materials from NH Center for Nonprofits Alliance for Justice

2. Advocacy or Lobbying? • All lobbying is advocacy • Not all advocacy is lobbying • 501(c)3 organizations may not support or oppose candidates • Allowable electoral activities require separate presentation

3. Three sets of rules • IRS rules for 501(C)3 nonprofits • State laws on lobbying registration • Funding restrictions Note: Generally, the more restrictive rule applies.

4. IRS Rules • 501(c)3 public charities are allowed to lobby within broad limits • “insubstantial part” • 501(h) election • Clear dollar limits on what can be spent • 20% of first $500,000 of exempt expenditures • 501(h) is in addition to, not instead of, 501(c)3 designation • Lobbying must be reported by both 501(h) and non-501(h) organizations See Alliance for Justice (http:bolderadvocacy.org)

5. 501(h) election • Up to 25% of total allowable lobbying expenses may be directed at grassroots lobbying • Explicit definition of lobbying activities and exclusions • E.g. Nonpartisan analysis, study or research that presents all sides of a legislative issue

6. IRS Definition of Lobbying (501(h)) • Direct Lobbying: • Communication with a legislator • That expresses a view about specific legislation • Grassroots Lobbying • Communication with the public • That expresses a view about specific legislation • AND includes a call to action

7. New Hampshire Laws • Lobbying is not restricted • Lobbyists generally required to register NH RSA 15:1 Registration. –    I. Any person who is employed for a consideration by any other person, except the state of New Hampshire, in a representative capacity for the purposes specified in paragraph II of this section shall first register as a lobbyist with the secretary of state.

8. Advocacy or Lobbying? NH RSA 15:1 [registration required] of any person employed (a) To promote or oppose, directly or indirectly, any legislation pending or proposed before the general court, or; (b) To promote or oppose, directly or indirectly, any action by the governor, governor and council, or any state agency, as defined in RSA 15-A:2, where such action concerns legislation or contracts pending or proposed before the general court, any pending or proposed administrative rule, or the procurement of goods or services that are being or may be purchased by the state, subject to the exclusions in paragraph III.

9. NH Exclusions V. The following communications are excluded from the regulation imposed by this chapter and shall not be considered in a determination of whether a person is required to register and report as a lobbyist:        (a) Public testimony before a legislative committee or subcommittee.        (b) Public testimony before any entity subject to RSA 91-A, the right-to-know law.        (c) A written document filed in the course of a public proceeding or any other communication that is made on the record in a public proceeding.        (d) Communication made by a public official acting in the public official's official capacity.        (e) Communication made by a representative of a media organization if the purpose of the communication is gathering or disseminating news and information to the public. (f) Communication made in a speech, article, publication, or other material that is distributed and made available to the public, or through radio, television, cable television, the Internet, or other medium of mass communication.        (g) Communication made in writing which becomes a public record subject to the provisions of RSA 91-A, the right-to-know law, provided in response to a written request by a legislative or executive branch official.      

10. NH Exclusions (continued) (h) Communication made to the governor or to any member of the executive council, member of the general court, or public official as defined in RSA 15-B:2, X by an employee on behalf of his or her employer that would otherwise require registration under RSA 15:1, II, provided that the person making the communication:           (1) Is not required to register and report as a lobbyist for any person, including the employer on whose behalf the communication exempted under this subparagraph is made;           (2) Is not specifically compensated by the employer or any other person for making the communication;           (3) Has not been required to make the communication by the employer or any other person required to register and report under this chapter; and           (4) The purpose of the communication is to allow the employee to communicate the employer's views or his or her personal views on any matter within the scope of RSA 15:1, II that may affect the employer and/or the employee in his or her capacity as an employee.

11. Funding-based restrictions NH RSA 15:5 Prohibited Activities. –    I. Except as provided in paragraph II, no recipient of a grant or appropriation of state funds may use the state funds to lobby or attempt to influence legislation, participate in political activity, or contribute funds to any entity engaged in these activities.     II. Any recipient of a grant or appropriation of state funds that wishes to engage in any of the activities prohibited in paragraph I, or contribute funds to any entity engaged in these activities, shall segregate the state funds in such a manner that such funds are physically and financially separate from any non-state funds that may be used for any of these purposes. Mere bookkeeping separation of the state funds from other moneys shall not be sufficient.

12. Federal Restrictions OMB Circular A-122 25. Lobbying (a)Notwithstanding other provisions of this Circular, costs associated with the following activities are unallowable (3) Any attempt to influence: (i) The introduction of Federal or State legislation; or (ii) the enactment or modification of any pending Federal or State legislation through communication with any member or employee of the Congress or State legislature (including efforts to influence State or local officials to engage in similar lobbying activity), or with any Government official or employee in connection with a decision to sign or veto enrolled legislation;(4) Any attempt to influence: (i) The introduction of Federal or State legislation; or (ii) the enactment or modification of any pending Federal or State legislation by preparing, distributing or using publicity or propaganda, or by urging members of the general public or any segment thereof to contribute to or participate in any mass demonstration, march, rally, fundraising drive, lobbying campaign or letter writing or telephone campaign; or(5) Legislative liaison activities, including attendance at legislative sessions or committee hearings, gathering information regarding legislation, and analyzing the effect of legislation, when such activities are carried on in support of or in knowing preparation for an effort to engage in unallowable lobbying

13. Federal ExclusionsOMB Circular A-122 sec. 25 (b) • Providing a technical and factual presentation of information on a topic directly related to the performance of a grant, contract or other agreement through hearing testimony, statements or letters . . . provided such information is readily obtainable and can be readily put in deliverable form

14. Foundations, Corporations and Individuals • Special Rules Govern Foundation funding of lobbying • Foundations may, and do, impose restrictions not required by IRS • Public Foundations (such as NH Charitable Foundation) are allowed to fund lobbying • Private Foundations (such as Endowment for Health) may not earmark funds for lobbying • Corporations and individuals may establish separate rules

15. Helpful Websites NH Center for Nonprofits: http://www.nhnonprofits.org/knowledgecenter/nonprofbasics/advocacylobbying/rules_of_engagement.cfm Alliance for Justice: http://bolderadvocacy.org/