Lobbying and Other Advocacy Knowing the Rules and

Lobbying and Other Advocacy Knowing the Rules and Using Them to Maximum Advantage By Ben Tesdahl, Esq. December 3, 2008

GOOD NEWS!!! Both Presidential candidates promised “CHANGE”

BAD NEWS!!! The President has no power to unilaterally pass legislation or change anything.

GOOD NEWS!!! Through effective lobbying, you can make your organization’s concerns known to elected leaders.

BAD NEWS!!! Both Presidential candidates promised to curb the influence of “lobbyists” and other “special interests”

GOOD NEWS!!! In 2007, Congress passed the “Honest Leadership and Open Government Act”

BAD NEWS!!! Both Presidential candidates are going to “clean up Washington” and create a more honest leadership and a more open government.

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HLOGA OVERVIEW n Amends the Lobbying Disclosure Act to strengthen public disclosure of federal lobbying n Places more restrictions on gifts to Congress and other payments between registered lobbyists and Congress 9

Enforcement of HLOGA n The Comptroller General will conduct random audits to determine compliance with the LDA and issue an annual report to Congress. 10

Enforcement of HLOGA n Noncompliance with the Lobbying Disclosure Act could result in civil penalties up to $200, 000 and criminal penalties of up to five years in jail! 11

WILL A NONPROFIT CEO WHO VIOLATES HLOGA REALLY GO TO JAIL? 12

When Do You Need to Worry About the LDA? n You must have at least one In-House “Lobbyist” n An in-house employee is considered a “lobbyist” if in any calendar quarter: n n He/she spends at least twenty percent of his or her time on federal “lobbying activities. ” AND He/she makes more than one “lobbying contact. ” 13

How Often Must LDA Reports be Filed? n Initial Registration: n n within 45 days of the date that you have an in-house “lobbyist” and expect to spend more than $10, 000 on federal lobbying activities in a calendar quarter Quarterly Reporting (previously semi-annually). Made on Form LD-2 if the organization: n has at least one employee during the calendar quarter who is a “lobbyist” and n spends at least $10, 000 in that quarter in connection with all federal lobbying activities. 14

What Gets Reported? n A list of the specific issues upon which lobbying occurred, including a list of bill numbers. n A list of the Houses of Congress and the Federal agencies contacted by lobbyists for the registrant. n A list of the employees of the registrant who acted as lobbyists n A good faith estimate of the total expenses that the registrant and its employees incurred in connection with lobbying, rounded to the nearest $10, 000. 15

n IMPORTANT NOTE: The LDA will allow section 501(c)(3) organizations to report the lobbying numbers they have gathered under the IRS lobbying rules if they do not desire to keep two sets of records. 16

Other Key Changes n Electronic reporting is required. n Registered lobbyists (both individuals and organizations) will be required to file a new semi-annual report (called Form LD-203) identifying political contributions and compliance with Congressional gifts rules. 17

Senate/House Ethics Rules n HLOGA Reforms to Senate/House Gift Rules n New rules preclude any gifts from registered lobbyists or any employees of firms that employ or retain lobbyists. (No longer a $50 gift exception) 18

Senate/House Ethics Rules n HLOGA Reforms to Senate/House Gift Rules n Exceptions for: n Receptions – “stand-up food” is OK n Charity events n Widely-attended events n Events consistent with official duties n Nominal value—trinkets, t-shirts, caps 19

IRS LOBBYING RULES n The good news! 501(c)(3) entities can lobby, but with limits n 501(c)(4) and (c)(6) can have unlimited lobbying n n Two ways of reporting lobbying for 501(c)(3)s “No substantial part” test n The 501(h) election – reporting money only n 20

IRS LOBBYING RULES n The IRS Legal Test for Lobbying Section 501(c)(3) of the Internal Revenue Code states that "no substantial part" of a charity's activities may consist of influencing legislation. 21

What Are the Lobbying Limitations Under the Optional “Expenditure Test”? n Expenditure Test Limits Roughly speaking, total lobbying can be no more than 20% of a charity’s annual budget (with a cap of $1 M). Roughly 15% can be for “direct lobbying” and 5% for “grass roots lobbying” 22

How to Make the 501(h) Election n The expenditure test election is made by filing IRS Form 5768 any time during the year n Once filed, the form is effective for the entire tax year and only expenditures of money are counted (but not the time of unpaid lobbyists). 23

What is Lobbying Under the IRS Definition? n Direct Lobbying n It refers to "specific legislation" n It "reflects a view" on that legislation n It is addressed to a legislator, an employee of a legislative body, or any other government official participating in formulating legislation 24

Grass Roots Lobbying n In general, a "grass roots lobbying communication" is one which”: n Refers to specific legislation n Reflects a view on that legislation n Contains a "call to action. " 25

What is a “call to action” n A call to action includes: n (a) urging readers to contact their legislators; n (b) stating a legislator's address or telephone number; n (c) providing the reader with a petition or tear-off post card; n (d) identifying a legislator as being opposed to a charity's view, undecided about the legislation, the recipient's representative, or a member of the legislative committee that will consider the legislation. [NOTE: It is permissible to identify the sponsors of legislation. ] 26

Nonlobbying n Communications to the executive or judicial branches or to administrative agencies n Communications in response to a written request for technical advice from a legislature n Any grass roots message that omits a “call to action” 27

n EXAMPLE: H. R. 1234 is an ill-conceived and devastating piece of legislation. The ADAP Advocacy Association strongly opposes this legislation. IT MUST BE STOPPED NOW! 28

Tracking Lobbying Expenditures n Generally, all costs incurred in: researching n drafting n editing n disseminating n the lobbying communication must be captured. 29

PRACTICAL TIPS n When lobbying, use the cheapest means possible. n Use unpaid volunteers to draft and/or deliver your lobbying message, since their time is not counted at all. n Use the Internet to conduct grass roots lobbying whenever possible, since it can reach millions of people at a very tiny cost as compared to using regular mail or other means. n For grass roots messages, omit a call to action whenever you possibly can. 30

IRS Rules—Political Activity n 501(c)(3)s can’t directly or indirectly “intervene in a campaign” for or against a candidate for public office n Doing so can result in loss of tax exemption and/or payment of a penalty tax 31

Political Activity (continued) n But, it is OK to conduct neutral voter education or voter registration activities: n Hosting candidate forums and debates n Preparing candidate questionnaires n Preparing voter guides on the issues 32

Political Activity (continued) n Hosting candidate forums and debates 33

Political Activity (continued) n Preparing candidate questionnaires 34

Political Activity (continued) n Preparing voter guides on the issues 35

Political Activity (continued) n You can engage in issue advocacy, including issues that surround a political campaign, as long as it is not slanted for/against particular candidates 36

Political Activity (continued) n Nonprofit leaders can participate in campaigns and endorse candidates if they do so in their “personal capacity” 37

Political Activity (continued) n “Incumbents” can be invited to speak before a nonprofit, even if the person may also be a “candidate”. But introduce the person by his/her current job title and make sure the speech does not turn into a campaign speech. 38

Political Activity (continued) n BE SURE TO CONTINUE YOUR RELATIONSHIPS WITH POLITICIANS IN BOTH ELECTION YEARS AND ALSO IN NON-ELECTION YEARS. 39

INTERNET LINKS TO POLITICAL MATERIAL: • The IRS will look at the purpose of the political link and the number of “clicks” it take to get to partisan campaign information. [See Revenue Ruling 2007 -41 and IRS Memo dated July 28, 2008] 40

Political Website Links (continued) • Any website content involving voter guides and other “voter education” activities should follow the same guidelines that exist for printed materials. Such content must be educational and nonpartisan. 41

General Rules of Thumb (continued) • When in doubt regarding candidate-related activity, seek legal guidance first and take action second. 42

Your competitors are likely to be the first ones to complain about you publicly or turn you in to the IRS for any alleged misstep regarding the foregoing political rules. 43

n TESDAHL’S RULE OF THUMB FOR POLITICAL CAMPAIGN ACTIVITY BY 501(C)(3) ENTITIES -- 44

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Follow-Up Questions Contact: Ben Tesdahl Powers, Pyles, Sutter & Verville, PC 1501 M Street, NW Washington, DC 20005 Ben. tesdahl@ppsv. com 202 -872 -6743 n 49