Rules of the Game: The Bolder Advocacy Podcast Bolder Advocacy

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 ma

On this special edition from the BISC (Ballot Initiative Strategy Center) Road Ahead 2024 conference held in Las Vegas, we bring our takeaways from our sessions on ballot measure advocacy, including handling misinformation, tips on campaigning, garnering cross-ideological support and more.
 
Lawyers on this episode:
Sarah Efthymiou
Tim Mooney
 
 
Handling misinformation in ballot measure campaigns
   - Strategies to counter misinformation and disinformation.
   - Focus on highlighting correct information rather than amplifying incorrect details.
 
How campaigning against ballot measure proponents is different than candidates
   - Discussion on conservative influencer, Brian Haywood.
   - His influence on ballot initiatives in Washington.
   - How non-candidates can be criticized without impacting tax-exempt status for 501(c)(3)s
 
Cross-Ideological Support for Ballot Initiatives
   - How ballot measure work reflects populist views and forms unlikely coalitions.
   - Examples from various states including Florida’s cross-ideological support for returning citizens' rights.
 
Role of Funders in Advocacy
   - The importance of funders in supporting grantees beyond financial contributions.
   - Tips on early funding and building infrastructure for effective campaigns.
 
Conference Resources and Recommendations
- Ballot Initiative Strategy Center
- Seize the Initiative
- Bolder Advocacy’s ballot measures toolkit
 

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

On this edition, we answer some of those “greatest hits” questions we always talk about in the intro every week. And since we have primaries and spring elections coming up, we decided to do an all-elections episode to get you ready for your election season advocacy.
 
Lawyers for this Episode
Sarah Efthymiou
Susan Finkle Sourlis
Tim Mooney
 
Shownotes
 “Can our 501(c)(3) invite a candidate to speak at our fundraising event?”
“In Oregon, we have 5 of our 7 Supreme Court seats up for election this spring, but since the candidates are nonpartisan I was wondering if our (c)(3) can endorse? Are they like ballot measures?”
“We know that 501c3s cannot encourage or engage in activity that would support or oppose a candidate for elected office. But what if the c3 asked voters to vote uncommitted? Is that the same thing?”
 
Resources
The Rules of the Game: A Guide to Election-Related Activities for 501(c)(3)s
Running the Advocacy Race: Bolder Advocacy’s Top Resources for an Impactful 2024 Election Season
Hosting Candidates at Charitable Events
Election Checklist for 501(c)(3) public charities
 
 
 

For our 100th episode, we are excited to chat with the incomparable Vu Le of Nonprofit AF. 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.
Watch on the Bolder Advocacy YouTube Channel
 
•           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 Nonprofit AF.

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