Lobbying and Advocacy for Nonprofits 

1. What is lobbying?
2. Are there restrictions on the amount of lobbying a nonprofit organization can do?
3. Can nonprofits endorse or oppose candidates to office or ballot initiatives?
4. What are the IRS rules and issues for lobbying and advocacy by nonprofits? (PDF)
5. Where can we find more information about lobbying and advocacy?

1. What is lobbying?

Nonprofit organizations often unnecessarily limit their ability to get involved in public policy out of fear of losing their tax exempt status. The good news, though, is that:

1. Nonprofits actually can do a good deal of lobbying under current IRS limits without endangering their tax exemption; and
2. Most policy advocacy is not lobbying, so it does not pose a threat to the organization's tax exemption

Under IRS regulations, "lobbying" is defined as:

1. a communication
2. to legislators (or urging the public to contact legislators)
3. intended to influence specific legislation

Roughly speaking, "legislation" is defined under the IRS regulations as action by a legislative body, such as a city council or county board of supervisors, state or federal legislatures, as well as by the public when voting on a legislative initiative or referendum. Since courts and administrative or executive agencies (e.g., your local school board or Department of Public and Social Services) are not considered legislative bodies, their actions are not considered legislation, so urging them to take certain actions would not be considered lobbying. Note also that to constitute lobbying, a communication must address “specific legislation”, which means a specific policy to be enacted by a law, as distinct from addressing a broad policy issue. With regard to ballot initiatives, a proposal is specific legislation once it is presented in a petition for signatures to qualify the proposal for the ballot.

A great deal of advocacy, then, would not be considered lobbying under the IRS regulations. If your communications is not about a specific proposed decision for legislators to make (passing a bill or ordinance), or your communication does not encourage citizens to urge their legislators to enact a law, then it is not lobbying. The key issues are who the audiences are, and you are asking the audience to do. If advocates are speaking with administrative officials, who do not pass laws but rather enforce them (and changes in their policies can make a huge difference), their advocacy is not lobbying because there is no legislative decision. (This difference between executive decisions and legislative decisions can be confusing.) Public education or issue advocacy, or generally promoting a point of view on an issue, typically is not lobbying for one of two reasons: (1) When directed toward legislators, an advocacy campaign is not lobbying unless it urges legislators to adopt specific provisions of law; or (2) When directed to members of the public, even though the advocacy campaign endorses a specific response in law to a problem, such as increasing funding for education, it is not lobbying unless it encourages citizens to urge their legislators to pass an increase in education funding.

Under IRS rules (if you choose the 501(h) election described below), lobbying does not include:

1. Making available the results of nonpartisan analysis, study, or research;
2. Providing technical advice or assistance to a government body, or to its committee or other subdivision, in response to a written request from the chair of that body (this is sort of a free pass to directly express a view about legislation to the relevant legislators);
3. Self-defense communications with a governmental body regarding legislation which would affect your existence, your powers or duties, your tax-exempt status, or the deductibility of contributions to your group (note that fighting cuts in government funding for your cause is not self-defense);
4. Discussing broad social issues, without mentioning specific legislation;
5. Communicating with a government official or employee, other than for the purpose of influencing legislation (note that many important decisions, such as how to enforce or implement a law, are made by government agencies, and since their decisions are not legislation, even direct communications to agency officials about these decisions would not be lobbying);
6. Communicating with members of your organization with respect to legislation and expressing a view about the legislation so long as the communication does not encourage members to take action regarding the legislation.

2. Are there restrictions on the amount of lobbying a nonprofit organization can do?

Tax exempt 501(c)(3) nonprofit organizations are prohibited from lobbying "except to an insubstantial degree." The IRS evaluates an organization’s lobbying activities under two rules. 

1. The general rule looks at the totality of an organization’s lobbying activities, whether by paid staff or volunteers, and considers whether those activities are "insubstantial." This test gives the IRS fairly broad discretion; courts have in the past considered expenditures of more than 5% of the organization’s budget, time and effort to be “substantial.”
2. The other more defined test is the 501(h) expenditure test, named after the bright line rule set forth in Section 501(h) of the Internal Revenue Code. This test sets specific dollar limits on a nonprofit’s lobbying activities. The 501(h) test not only sets clear limits, it also only includes lobbying expenditures (money and staff time) toward those limits; the work of volunteers is not counted against the limits, as it would be under the "insubstantial" test. In order to be governed by the 501(h) test, an organization must file a form electing to be evaluated under the rule (IRS Form 5768). The disclosures required under the 501(h) test are essentially the same as that required for the annual informational return (IRS Form 990).

In most cases, an organization will be able to engage in more lobbying activity, with greater confidence that it will not endanger its tax exempt status, if it elects to be governed by the 501(h) test. The 501(h) rule places an overall limit of $1 million on lobbying expenditures, however, so organizations with very large budgets may be able to do more lobbying under the old "insubstantiality" rule.

3. Can nonprofits endorse or oppose candidates to office or ballot initiatives?

Supporting or opposing any candidate for elected office, even in nonpartisan races, is strictly prohibited and can result in loss of your tax exemption. Fear of violating this prohibition on political activity may be behind the reluctance of many nonprofits to get involved in policy issues. 

Nonprofits can, however, get involved in election campaigns for or against ballot initiatives or referenda. These campaigns are very important policy tools in California and many other states. Trying to influence how people vote on initiatives is direct lobbying, since the voters act as legislators in approving or rejecting a ballot initiative.

4. What are the IRS rules and issues for lobbying and advocacy by nonprofits?

For a broader discussion of IRS rules regarding lobbying and advocacy by nonprofits, and the role of foundation grants, please Download this PDF.

Before engaging in public policy, be sure to assess whether your planned activities are lobbying or simply advocacy, and if it is lobbying, how much your organization can do without exceeding IRS limits.

5. Where can we find more information about lobbying and advocacy?

Publications

1. Worry-Free Lobbying for Nonprofits (Washington, D.C.: Alliance for Justice, 2000)
2. Harmon, Gail M., Ladd, Jessica A., and Evans, Eleanor A. Being a Player: A Guide to the IRS Lobbying Regulations for Advocacy Charities (Washington, D.C.: Alliance for Justice, 1991, 1995)
3. Colvin, Gregory L., and Finley, Lowell. The Rules of the Game: An Election Year Legal Guide for Nonprofit Organizations (Washington, D.C.: Alliance for Justice, 1996)
4. Colvin, Gregory L., and Finley, Lowell. Seize the Initiative (Washington, D.C.: Alliance for Justice, 1996)
5. Schadler, B. Holly. The Connection: Strategies for Creating and Operating 501(c)(3)s, 501(c)(4)s, and PACs (Washington, D.C.: Alliance for Justice 1998)
6. Smucker, Bob. The Nonprofit Lobbying Guide (Washington, D.C.: Independent Sector, 1999)
7. Avner, Marcia. The Lobbying and Advocacy Handbook for Nonprofit Organizations, (Amherst H. Wilder Foundation)

Web 

1. www.clpi.org- Center for Lobbying in the Public Interest
2. www.afj.org/for-nonprofits-foundations - Alliance for Justice
3. www.npaction.org - OMB Watch (or www.ombwatch.org)
4. www.ncrp.org - National Center for Responsive Philanthropy