Walking the Lobbying Tightrope

In these days leading up to Election Day 2016, it’s hard not to talk about political issues. For Section 501(c)(3) organizations, it can be tempting to speak up on issues that affect their mission. Indeed, for many, not speaking out may seem contrary to their mission.

Because the presidential candidates have indicated their stance on many legislative and policy issues, speaking out for or against policies and laws requires walking a tightrope–between permissible advocacy and prohibited political campaigning.

Careful thought about what you say and don’t say is critical in these pre-election days.

Presented here: a few scenarios involving “hot” topics that provide a good review of the questions that a 501(c)(3) organization should ask before it communicates on current political topics.

Universal Health Care: To Have or Not to Have?

For many Section 501(c)(3)organizations, the Affordable Care Act (“ACA”) is a critical safety net for the clientele they serve. Republican nominee Donald Trump has promised to repeal ACA if he becomes president. Can a public charity or a private foundation comment on the status of legislation such as the ACA? Questions to ask:

  • What is the status of the ACA at the time of the proposed communication, i.e., is there legislative action at issue:
    – Is there a bill pending to amend or repeal the ACA?
    – Or rather, is the issue implementation of the ACA by an administrative agency or the executive branch, or alternatively, interpretation of the ACA by the judicial branch?
  • If there is legislative action at issue, is the communication attempting to influence the outcome of the legislation? Or, is the communication exclusively educational in nature?
  • Who is the audience for the communication?
  • When does such communication become political campaigning?

DACA/DAPA: To Dream or Not to Dream?

Similarly, Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans (“DAPA”) are life-changing programs for the clientele of some Section 501(c)(3)organizations. The Obama Administration’s prioritization of immigration law enforcement, as embodied by DACA and DAPA, allows certain undocumented immigrants to live and work in the United States temporarily.

The Administration’s policies have been challenged in court, and a federal district court issued an injunction against implementation of the programs pending legal review of them. The United States Supreme Court’s recent deadlocked decision leaves this injunction in place, creating uncertainty for the immigrants who would have benefited from DACA and DAPA. Based on his campaign rhetoric, a Trump administration would reverse the Obama administration’s policies on immigration law enforcement.

Can a public charity or a private foundation advocate for or against DACA/DAPA? Can a public charity or private foundation comment on the Supreme Court’s decision on DACA/DAPA? Questions to ask:

  • What are DACA and DAPA?
    – Are they laws?
  • At the time of the proposed communication, what action is being taken and by whom?|
    – Is the action executive, judicial or legislative?
  • How is the organization participating and what is the purpose of the communication?
  • Could the communication be viewed as political campaigning?

The Supreme Court: To Appoint or Not to Appoint

Since the death of Justice Antonin Scalia, the United States Supreme Court has been operating with eight justices. The Court’s deadlocked decision on DACA/DAPA illustrates what may be at stake with the appointment of the next justice. Many issues that are of concern to Section 501(c)(3)organizations will be decided based on which party gets to appoint this next justice. When President Obama announced Merrick Garland as his nominee for the United States Supreme Court, the Republican-controlled Senate immediately made it clear that they would not consider any candidate nominated by President Obama. The fight between the parties has been on pause during the summer recess, but after Labor Day, the Republicans will have to make a calculation whether they are better off approving Judge Garland than taking their chances with a Clinton appointee in the event of Trump’s loss in November.

Can a public charity or private foundation comment on the Supreme Court nomination process? Can a public charity or private foundation comment on a nominee?

Questions to ask:

  • What is the action being taken (or not taken)?
  • Does support of or opposition to a nominee constitute prohibited political campaign activity?
  • Does support of or opposition to a nominee constitute legislative lobbying?
  • Does support of or opposition to a nominee result in the imposition of a tax under section 527?
  • Does support of or opposition to a nominee require political activity reporting under State or local law?

In summary, the analysis of whether or not a Section 501(c)(3) organization may participate in political discourse is fact-specific.

The good news is that much advocacy can be undertaken that does not constitute legislative lobbying. In an election year, however, that analysis needs to be conducted more carefully, because what looks like mission-focused advocacy may constitute not only legislative lobbying (limited in amounts for public charities, not allowed for private foundations), but prohibited election activity.

Posted in Lobbying.