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Legal 201: Advocacy Grantmaking. Kelly Shipp Simone, Deputy General Counsel Council on Foundations March 19, 2012 Grants Managers Network Conference. Agenda. Defining Advocacy Grants to organizations that lobby Public charities Others Lobbying defined Civic engagement grants

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legal 201 advocacy grantmaking

Legal 201: Advocacy Grantmaking

Kelly Shipp Simone, Deputy General Counsel

Council on Foundations

March 19, 2012

Grants Managers Network Conference

agenda
Agenda
  • Defining Advocacy
  • Grants to organizations that lobby
    • Public charities
    • Others
  • Lobbying defined
  • Civic engagement grants
    • GOTV, voter registration, etc.
defining advocacy1
Defining Advocacy
  • Activity to influence public policy
    • Lobbying
    • Civic engagement
  • Rules differ for private foundations and public charities
lobbying basics
Lobbying Basics
  • Private foundations
    • May not engage in activity defined as “lobbying” by Treasury Regulations
  • Public charities
    • May engage in lobbying so long as it is not more than an “insubstantial” part of its overall activities
earmarking for lobbying
Earmarking for Lobbying
  • Earmarked grants:
    • Public charities may earmark grants for lobbying
      • Earmarked grants count against a public charity’s lobbying limits
    • Private foundations may not earmark grants for lobbying
grants to public charities
Grants to Public Charities*
  • General Support Grants
    • Not counted as lobbying even if grantee has lobbying activities
    • No written or oral agreement that it will be used for lobbying

* If expenditure responsibility is required, the grant agreement must prohibit the use of the funds for lobbying

grants to public charities1
Grants to Public Charities
  • Specific project grants to public charities permissible if –
    • Fund up to the non-lobbying amount of the project budget
    • Reasonable reliance on budget from grantee
    • No earmarking of funds for lobbying activity
  • If public charities follow these rules, the grant should not count as a lobbying expenditure for the grantor public charity
grants to public charities2
Grants to Public Charities

Total Project Budget: $100,000

Lobbying Portion: $30,000

Non-lobbying Portion: $70,000

How much could one private foundation fund?

$70,000

How much could two private foundations fund?

100% so long as neither granted more than $70,000

grants to public charities3
Grants to Public Charities
  • Multiyear grants and project grant rules
    • Foundation has two options
      • Make sure grant amount actually disbursed in the year does not exceed budgeted non-lobbying amount for that year
      • Divide equally each year regardless of when the amounts were paid

2-year $100,000 project

Year 1: $50,000 budget, $20,000 lobbying expenses ($30K non-lobbying)

Year 2: $50,000 budget, $30,000 lobbying expenses ($20K non-lobbying)

Private foundation grant: $35,000 in year 1; $5,000 in year 2

Grant exceeds non-lobbying amount in year 1

Result: Must allocate equally in each year of grant (i.e. $20 K each year) to meet the rules

grant agreements
Grant Agreements
  • Remember: Not required to prohibit the use of grant funds to public charities for lobbying unless grant requires “expenditure responsibility”
  • Sample language in toolkits at www.cof.org/legal
grants to non charities
Grants to Non-Charities
  • Private foundations must prohibit the use of grant funds for lobbying in the grant agreement
  • Public charities may make the grant but rules regarding what counts as lobbying expense
types of lobbying
Types of Lobbying
  • Direct
    • Advocacy directly toward legislators
  • Grassroots
    • Encouraging others to get involved and contact legislators
  • Why the difference?
what is lobbying
What is Lobbying?
  • Direct

Communication

Legislator

legislators defined
Legislators Defined

Legislators:

  • federal, state & local level representatives and their staff
  • executive officials when participating in formulation of legislation
  • the public if it is a ballot measure
  • not members of special purpose boards (planning commissions, zoning commissions, school board)

Joint Session of Congress

what is lobbying1
What is Lobbying?
  • Direct

Communication

Legislator

Expressing a view

About specific legislation

legislation defined
Legislation Defined

Excludes

  • Regulations
  • Litigation
  • Executive orders
  • Enforcing law
call to action
Call to Action
  • Telling to contact legislator(s)
  • Providing address, telephone number, and/or other contact information of legislator(s)
  • Providing mechanism to enable communication with legislator(s)
  • Identifying legislator(s)
lobbying exceptions
Lobbying Exceptions
  • Nonpartisan Study or Analysis
  • Providing technical assistance
  • Self-defense communications
  • Jointly-funded projects (for private foundations only)
nonpartisan analysis or research
Nonpartisan Analysis or Research
  • Required elements:
    • Full and fair discussion of the facts
    • Report may advocate a position on an issue
    • May discuss legislative issues
    • May not directly call the recipient toaction
    • Appropriate distribution
nonpartisan analysis or research1
Nonpartisan Analysis or Research

Distribution

  • Any appropriate manner
  • With or without charge
  • Share with both sides of an issue
providing technical advice
Providing Technical Advice
  • Must be provided to:
    • Legislative body
    • In response to a written request
  • May express opinions requested or opinions directly related to the advice or assistance being provided
self defense communications
Self-Defense Communications
  • May express a view to legislators about issues affecting the foundation’s
    • existence
    • tax-exempt status
    • powers and duties
    • the deductibility of contributions
  • Can be used proactively
  • Not applicable to grassroots lobbying
jointly funded projects
Jointly- Funded Projects
  • Leveraging can be a key strategy
  • Grant may be conditioned on government support
  • Communicating with government about an actual or potential jointly-funded project is permissible
    • Purpose must be the exchanging information on the subject matter of the programs
    • Can’t try to persuade the government official or employee to take positions on specific legislative issues
grants for civic participation
Grants for Civic Participation
  • Must be non-partisan
  • Variety of guidelines available for different activities (candidate debates, GOTV, voters guides)
  • Purposes
    • Encourage individuals to get involved in the process
    • Educate people about candidates
grants for civic participation1
Grants for Civic Participation
  • Voter registration drives
    • Special rules for private foundation grants (and direct activity)
    • Key rules include:
      • Must be carried out over more than one election cycle
      • Must cover at least five states
      • Rules regarding the charities’ expenditures and contributions
grants for civic participation2
Grants for Civic Participation
  • Voter registration drives
    • Some charities may have obtained Section 4945(f) rulings
    • Remember: Expenditure responsibility grants must prohibit use of grant funds for voter registration
contact information
Contact Information

Advocacy Resources:

www.cof.org/legal Grantmaking Advocacy

  • Kelly Simone 703-879-0716, simok@cof.org
  • Legal Services: legal@cof.org