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we are presenting lobbying considerations for non-profits what your organization needs to know uh my name is janice ryan i'm a partner in venables political law and nonprofit practices hi and i'm lindsay nathan i'm also a partner in benabol's political and non-profit group practices and i'm based in new york city and i'm in d.c um we'll be presenting today and i'm going to make sure that i can get my screen ready here for you guys all right so we have a lot of ground to cover today we're going to present five major topics um each of these topics probably could be the subject of its own webinar we'll move through it as as quickly as we can but really we wanted this to be an overview session and applicable to the range of nonprofit organizations that i think you all in attendance represent primarily focused on 501 c3s 501 c4s and 501c6s i'll kick things off by talking about the tax rules that apply to lobbying lindsay will go over the things that you need to know about lobbying disclosure at the federal state and local level primarily focus on the federal lobbying disclosure act as an example of the kinds of regulation that you may see uh we'll talk about governmental ethics and gift rules uh we'll talk about restrictions um on lobbying activity or expenditures for lobbying activities if you are a federal contractor or grant recipient and then we'll close things out by talking about some other related laws that impact your grassroots advocacy primarily relating to communications so we'll begin with tax rules um to begin let's talk about 501 c 3s and then i'll give you a brief overview of 501 c4 and c6 lobbying and then we'll talk more in depth about 501 c3 rules so i wanted to highlight at the outset that most of this presentation is going to be about the tax rules applicable um to public charities that lobby to the extent we're talking about 501c3 activity public charities are permitted to lobby uh and maintain their tax exempt status as a 501c3 provided that activity is not a substantial part of the organization's total activities we'll talk about that in more depth in a little bit public charities are absolutely prohibited from engaging in any activities to support or oppose candidates for elective office which we'll call political campaign activities private foundations on the other hand which is another type of 501c3 are not permitted to lobby lobbying expenditures may be subject to penalty taxes private foundations can fund charities public charities that lobby but grants cannot be earmarked for lobbying there are generally two kinds of grants that a private foundation could make um to a public charity that is engaged in lobbying activity you could make a general support grant without specifically having to restrict use of those funds by the organization for lobbying or you could make a specific project grant that may include lobbying as part of the project so long as the private foundation's funds do not support that aspect of the project and like public charities private foundations are absolutely prohibited from engaging activities to support or oppose candidates for elective office the rules for 501 c4s and 501c6s are basically the same they may engage in unlimited amounts of lobbying the thing that is important for tax purposes for these types of organizations is that the lobbying portion of dues that are paid by members of a 501 c 4 501 c6 organization are not tax deductible by those members as ordinary and necessary business expenses there are rules that require the organizations to keep track of the amount of money that they spend on lobbying and report to the members the amount of their dues that are related to that activity political campaign activities activities to support or oppose a candidate are permitted provided they are not the organization's primary activity we're not going to go into detail on this today because we're focused on lobbying but if a c4 or c6 is engaged in campaign activities i also have to be mindful of federal and state campaign finance laws particularly with respect to restrictions on corporations engaging in activities to support or oppose candidates so let's talk a little bit more about 501c3 lobbying what is lobbying and you're going to hear probably several definitions from us here today which makes things fun lobbying for tax purposes for 501 c 3s is attempting to influence legislation just legislation at the federal state or local levels through direct or grassroots communications 501c3s public charities have two options for measuring compliance um with the limitations on 51c3 lobbying you can either measure your compliance under the no substantial part test which is the default rule under the tax code or the 501 each expenditure test which is a is a test that you can formally elect by filing a form with the irs if you decide to um measure your lobbying activity under the no substantial part test um unfortunately you have essentially and i know it when i see it test it's a very vague facts and circumstances test um if the irs were to determine that the organization had engaged in too much lobbying so substantial lobbying the organization could be subject to significant sanctions up to and including revocation of exempt status and the assessment of penalty taxes on the organization and its managers the 501 each expenditure test was um enacted by congress to um frankly allow 501c3s greater comfort in um engaging in lobbying activities um without being afraid that they were engaged in excessive lobbying and this test if an organization chooses to elect it um basically requires the organization just to measure the amount of lobby activity lobbying activity incurs based on the amount of money that it spends lobbying will not be considered substantial provided the organization does not exceed expenditure caps which i'm going to show you on the next slide there are very clear definitions of what is and is not lobbying for specific activities um and should the organization exceed the caps in any particular year um there are actually very flexible sanctions um the the sanctions are 25 tax on the amount spent over the cap in a year there's no tax penalties imposed on the organization's managers for exceeding the limits and revocation of exempt status results only if the organization exceeds a certain amount of expenditures over four-year consecutive averaging period so these are the caps and as you'll see they're a sliding scale a 501c3 that elects the 501h expenditure test is allowed to spend twenty percent um of its first five hundred thousand dollars of exempt purpose expenditures on lobbying um and then it's a sliding scale thereafter um up to a hard cap of one million dollars um if your org your organization's um total exempt purpose expenditures would need to be approximately 17 million dollars in order for you um to hit that one million dollar cap um so for many organizations the 501 each election makes a lot of sense if you are an organization however that has exempt purpose expenditures greater than 17 million dollars the 501h election may not be the right choice for you because you would otherwise be subject to a hard 1 million dollar cap in the amount of lobbying expenditures you could undertake in a given year and for very large organizations you may be able to do considerably more lobbying under the no substantial part test um the one important thing to note as well as the one million dollar cap here is that grassroots lobbying expenditures under the 501 each election are limited to no more than 25 percent of the total amount permitted for lobbying in a year so it's important to understand that the caps apply differently to direct lobbying or grassroots lobbying so what is what is the two two different elements that we're talking about here direct lobbying is attempts to influence legislation through communications with covered officials that refer to specific legislation and reflect a point of view on the legislation so again for direct lobbying we're talking to legislators and other covered officials and that might include any member or employee of a legislative body any government official or employee who may participate in the formulation of legislation so consider the governor or a mayor or certain folks in the executive branch at really any level of government and we're also talking about the public in a referendum initiative or constitutional amendment so what does this mean this means that when you engage in communications with the public to support or oppose a ballot measure for example the tax code considers that to be direct lobbying activity what is grassroots lobbying this is attempts to influence the general public through communications that have three elements and it's really important all three elements must be present or else under the 501 each election you do not have a grassroots lobbying communication the communication must refer to specific legislation reflect a point of view on that legislation and include a call to action there could be many uh kinds of communications that you engage in with the general public that refer to specific legislation and point reflect a point of view on that legislation and if you don't have that third element the call to action um you have not engaged in a grassroots lobby in communication that you need to track and report under your 501 h caps what is a call to action asking asking the public to reach out to their legislators identifying a particular legislator as the that recipient's legislator as someone who will vote on the legislation someone who is opposed to your point of view or undecided on that legislation providing someone with an um a vehicle to contact that legislator perhaps it's a postcard or an email form or a petition online or otherwise and providing a way for folks to contact the legislature providing contact information telephone number address etc if you don't include a call to action you do not have a grassroots lobbying communication um the the other thing that's really great about the 501 each election is that there are specific exclusions from the definition of lobbying which um allow a 501 c 3 organization to engage in a wide variety of advocacy communications related to legislation without having those expenditures count against their 501 h caps so some of those exclusions include communication with your members regarding specific legislation it's okay to have a point of view on specific legislation but again you cannot have a call to action a category called nonpartisan analysis study or research is really important a lot of 501c3 organizations can produce white papers and other kinds of research and analysis that provides a full and fair discussion of an issue such that the person reading it would be able to come to an independent conclusion about the topic that you're discussing and it's okay for you to in that situation reflect a point of view on specific legislation again including a call to action is um is a factor as well um you could engage in discussions of broad social and economic problems efforts to change regulations again lobbying for tax purposes is efforts to change legislation um requests for technical advice conducting so-called self-defense activities so advocating for your own interests as a tax-exempt organization for example and any time spent by your volunteers all of those kinds of activity are excluded from the 501 age caps the key part of the 501 h election is that you are not entitled to rely on the specific definitions of lobbying and exclusions from lobbying unless you affirmatively elect by filing the form with the irs to measure your lobbying activity under 501h we are not in the thick of an election season right now for the most part but there are state and local elections going on right now and it's important to distinguish between lobbying and campaign activity you know in the course of your advocacy um it it may be that you want to as a 501 c 3 organization explain to candidates your positions on various policy issues and um that is okay but what is not okay is that um you cannot engage in activities to support or oppose those candidates other kinds of activities in which you might be able to engage in would include non-partisan electoral activities um that are not only non-partisan and they're not supporting or opposing a specific party but they're also unbiased such that um it is not something that um the irs would consider uh your activity to support or oppose a candidate you could do get out the vote in voter registration drives again in a non-partisan unbiased way you could prepare legislative voting records you could host candidate debates and forums and you could prepare candidate questionnaires and voter guides in all cases it's important for them to be inclusive to provide a fair and impartial forum and to cover a broad range of topics if your organization is going to engage in these kinds of activities it's important to consult with council to ensure that you're following ires guidelines to avoid um engaging in impermissible campaign intervention so what can you do with candidates you can urge candidates to support policies so essentially you can lobby candidates you should not ask candidates to take a pledge so you should not ask them to commit to supporting your issue if they are elected because the irs views that kind of activity as an activity that supports or opposes the candidate in their election you could provide policy papers and other materials to the candidate about issues but you should provide that material to all candidates equally and you should not create content at the request of candidates so we're going to shift into 501 c 4 and 501 c 6 lobbying the lobbying definition here is slightly different and broader than the definitions that we just went over for 501 h electing public charities and you can find this in section 162 e of the code lobbying includes influencing legislation at the federal state and local level influencing the general public with respect to elections legislative matters of referenda influencing high-level federal executive branch officials with regard to executive and administrative actions and political campaign activities so anything to support or oppose a candidate for elective office why do we care because we know that 501 c4s and c6s can engage in unlimited amounts of lobbying as i mentioned earlier there are no tax deductions available for lobbying under 162 e of the code for your members who may be paying dues to your organization a note about political campaign activity here again political activities are permitted for a 501 c 4 or 501 c 6 organization under the tax code so long as those activities are not the organization's primary activity um we'll talk a little bit further about the lobby tax rules so um an organization that engages in lobbying and has members that paid dues or similar amounts has two options um under the tax code for ensuring that the members do not take tax deductions for the lobbying portion of their dues the 501c4 or 501c6 organization can either notify their members annually of the amount of dues that are paid that are not deductible as a result of lobbying in political activity by the organization or they can choose to pay what's called a proxy tax on those amounts directly to the irs most organizations would prefer to provide the notice to members rather than pay tax on behalf of the members essentially for purposes of lobbying and political activity expenditures just another note about the proxy tax this is um something that's usually a prospective calculation based on prior year's activity and chances are that you may have to go through well it's essentially a truing up process on an annual basis the irs recognizes that the amounts that you spend at the end of the year may not be what you predicted at the beginning of the year and you are able to carry over um under-reported amounts uh to the prior year's notices of dues to your members and and so this is something that um that if you need help with um we do encourage you to contact council um political activities expenditures are subject to tax under section 527f of the code um and this is to the tax rate is currently 21 and it's assessed on either the amount of the organization's political expenditures or the amount of the organization's net investment income whichever is less if your organization does not have any investment income it will never owe tax on the expenditures that are incurred by a 501 c 4 or c6 for political campaign activities if you do um then then you will have to consider the 527f tax in connection with any expenditures that you make in a given year and pay that to the irs so how does this all work together many of you may be representatives of affiliated organizations a 501 c 3 organization may create a related 501c4 or 501c6 entity there are no limits as i said on the amount of lobbying that a c4 or a c6 may conduct and the c4 or c6 may establish a political action committee for the purpose of supporting or opposing candidates for office or engage in political campaign activities directly to the extent that's permitted under applicable campaign finance law um this means that a 501 c 3 a 501 c 4 and or a 501 c 6 can work together to accomplish your advocacy goals um while complying with the specific um restrictions under the tax code that may apply um to that particular organization um it's important to note that the related 501c451c6 organization needs independent funding sources and that there is no charitable tax deduction available to the donors to the c4 or the c6 but the related organizations can share staff and office space subject to a cost sharing agreement and to conclude we'll talk just briefly about form 990 organizations that are engaged in lobbying or political activities will file schedule c to the form 990. for 501 c 3s the sections that will be completed depend on whether you're a 501 each electing organization or not if you are a 501h electing organization you need only report your lobbying expenditures on the form non-electing organizations must report in a little bit more detail the lobbying expenditures and the types of lobbying activities in which they are engaged for 501c4s and 501c6s you report your lobbying expenditures expenditures for any political campaign activity and you'll cut calculate your lobby tax liability if there is any or indicate that you will be carrying over into the next year any under estimate to your dues notices to members how do we manage this it's really important to be able to track and report your activities and expenses in order to comply with all of these rules and with the rules that lindsay will go over shortly related to lobbying disclosure activity effective compliance may include having rules clear rules for your staff to understand what is and is not lobbying to provide training on that and to be able to monitor periodically whether you are accurately capturing the information that needs to be captured and i'll give a little shout out to timesheets everyone's favorite thing um but timesheets can really be the most effective way of making sure that you're properly tracking staff time and and other expenditures for for lobbying activities all right lindsay do you want to take things over for lobbying disclosure yeah that would be great thank you so much janice um so in this portion of the presentation we'll talk uh primarily about federal lobbying disclosure rules and then we'll touch briefly on uh state and local uh lobbying uh registration and disclosure um and then we will get into the ethics and gifts rules uh briefly um so just to sort of preview what we're going to talk about um you know the the biggest thing to keep in mind is that there really is no uniformity amongst the federal and state laws um or even amongst the various states in terms of how they regulate lobbying activity and require disclosure um you know in some instances as janet has mentioned what the definition of lobbying is will vary significantly from jurisdiction to jurisdiction it doesn't always match the tax code in fact it often does not in a lot of places it goes much further including activity related to influencing legislation regulations executive orders procurement sometimes in states it regulates grassroots activities and sometimes it even captures activities to cultivate goodwill with elected officials and their staff in addition the who is a covered official or the definition of covered officials will vary pretty significantly depending on where you are sometimes it's the legislature sometimes it's the executive branch sometimes it's both um sometimes it include it includes only certain officials and sometimes it's anybody who works for um the state or local government in any capacity um you know as we'll get into on the federal side there will be public reporting on the activity the lobbying activity and expenses associated with that activity um sometimes you have to list the individual lobbyists and identify the amount of compensation you pay that individual lobbyists for their activities sometimes it's all aggregated together and you know it as the theme of this presentation will be it varies quite a bit depending on where you are um the other thing to keep in mind is that there may be limits on gifts or political contributions to um members of the legislature or executive branch as a result of engaging in lobbying activities so just keep that in mind so what is the definition of federal lobbying it requires a communication or contact which in this case is a direct contact with a covered official it could be oral written or electronic and it has to be about federal legislation federal regulations program administration nominations there are some other categories of items that are included in the definition of federal lobbying but you know those sort of cover the the um the basics um it also includes activities to support lobbying communications so time spent preparing for meetings um planning activities research on you know your ac your lobbying activities putting together talking points all of that kind of activity would be included in the lobbying activity that's reported as well who is a federal covered official um so on the legislative side or congressional side it's it's all members officials and employees of congress so you know as it says on the slide everyone from the receptionist to the chief of staff to the member is included so if you are having a lobbying contact with anybody who works for congress then um that would be considered a covered official um on the executive branch side it's much more specific it includes the president the vice president any member of the uniformed services whose pay or grade is at or above zero to seven any officer or employee in the executive office of the president any officer or employee in a position listed in levels i through b of the executive schedule and all schedule c political appointees now who phil fits into these various categories is sometimes obvious but it can actually sometimes be tricky to figure this out there are schedules that are published every four years at the end of a presidential term that we refer to as the plum book and that has the list of everybody who is a schedule c appointee or any covered officials but it's not comprehensive as i said it's only published every four years and definitely it needs to be double checked depending on when you're looking at it and who you're trying to identify so one thing to keep in mind is that if you ever have any question about whether somebody is or is not a covered official you can always ask them and that's the only you know 100 surefire way to know whether they are or not a covered official unless they fall into one of these other categories so there are some specific exemptions to federal lobbying so even if you're having a conversation with a covered official if you are having conversations or contacts to accomplish any one of the items on this screen um then those would fall into the exemptions and would not you would not need to capture that activity and it wouldn't count towards the threshold for having to register as a federal lobbyist so this includes administrative requests so if you're setting up a meeting that doesn't count if you are providing legislative testimony if you are um providing comments for the federal register or um if you've been subpoenaed um and or if you're making speeches or doing any kind of mass communication um that activity would not be covered so on that mass communication section um you know i want to highlight that grassroots lobbying is not covered under the federal lobbying disclosure act definition of lobbying who is a federal lobbyist so it requires more than one contact with a covered official um it requires at least 20 of your time over a three-month period so and if you don't have both of those things then you are not a federal lobbyist it doesn't mean that you are not engaged in lobbying activity or that your time may not have to be reported if your organization or company is already registered to lobby but you may not have to register as a lobbyist this is one of those times when i will also put in a plug to consult with council if you're not sure because what you don't want to do is have multiple contacts and exceed that 20 threshold and not be properly registered so in terms of reporting under the federal lobbying disclosure act there are two types of reports the first are quarterly reports of lobbying activity the form ld2 um which contain information about the total amount spent on lobbying activities rounded to the nearest ten thousand um information about which all of those expenditures include staff time and as we talked about that includes your direct contacts as well as preparation time um any compensation paid to outside lobbyists lobbying expenses so if you are you know if you have expenses associated with your lobbying activities you would include that any overhead um you know basically anything it anything that you spend on lobbying activities if it qualifies as a lobbying activity or if it's preparation or related to your lobbying activity then you will include that the interesting thing about the ld2 is as it says here it's rounded to the nearest ten thousand so if you have ten thousand four hundred and ninety nine dollars of lobbying expenditures you actually round down to ten thousand but if you have ten thousand five hundred and one then you round up to twenty thousand so the amounts that are actually reported don't give a ton of insight or ton of specific insight into what you're doing but you can sort of get a range of what organizations and companies are doing in terms of their lobbying activities in addition to the actual amounts of spending you're also going to provide descriptions of the issues that you're lobbying on the name of anybody who is a registered lobbyist that's registered on your behalf and this the ldt is actually filed by the registration organization there are other lobbying disclosures that are filed by the individual lobbyists which we'll talk about next so in addition to the ld2 we there's also a semi-annual report of political contributions which is the form ld-203 this report contains information about contributions um including the categories listed here honoring and recognizing payments payments for certain meetings library presidential library contributions and inaugural committee contributions again this is filed by the registrant organization but it's also filed by the individual lobbyists who are registered on behalf of those organizations in addition to the political contribution certification there's also a gift rule certification that confirms that the lobbyists have not given any improper gifts in violation of house and senate gifts and travel rules so this chart is just uh an overview of the sort of different uh types of lobbying activities that are regulated under the lobbying disclosure act and the tax code and as janus mentioned before you're going to hear a lot of different definitions of what lobbying is and this i think gives you sort of a broad overview of how those activities are really varied across the various regulating entities and authorities so in terms of state lobbying disclosure as i previewed at the beginning of this section i want to reiterate that the laws vary quite a bit across jurisdiction um and this is state but you should assume that this also includes local jurisdictions so sometimes states regulate lobbying sometimes a local jurisdiction a city or county will regulate lobbying and have its own lobbying registration and reporting regimes as i mentioned before it could cover legislative branch executive branch grassroots activity and goodwill contacts so you know you you really should consult with council to understand what the various obligations are within each state whether there are any local rules to follow and how that might require you to be registered and reporting on the state or local level as well the triggers for registration are quite different than the federal level in most cases sometimes it's based on um a monetary threshold so in certain places if you spend you know x amount of dollars on lobbying activities however that is defined under the state's rules or local rules as it may be you may have to register as a lobbyist or your organization may have to register as a lobbyist employer sometimes it's a number of hours sometimes it's percentage of your time spent on lobbying and sometimes there's no threshold at all so even one contact direct contact with a covered official will require your organization or an individual to register as a lobbyist occasionally there are places where there are grassroots only filers so if you are engaged in just grassroots lobbying activities and you don't have make any direct contacts with a covered official the grassroots activity may also require you to be registered and reporting on your spending and up and other activity related to lobbying the reporting frequency for state and local lobbying varies quite a bit as well sometimes those reports are due on an annual basis sometimes semi-annually monthly bi-weekly it really you know i can't say this enough but it really does vary um quite a bit across the board sometimes the reports will be very specific they'll include you know require you to say which bills you lobbied on or which issues you lobbied on as well as whether you support or oppose those bills or issues or regulations sometimes they include very specific dollar amounts about your spending can sometimes break down with specific compensation for individual lobbyists so if you have a staff member who is has qualified as a lobbyist in that particular jurisdiction you may actually have to indicate how much of their compensation was paid for lobbying activities um when you're thinking about your lobbying disclosure and compliance activities you know another plug for the time sheets so to the extent that you have staff who are lobbying on the state or local level you definitely want to make sure that they are keeping track of their time so that you have a way to track it and report it here are some state lobbying issues to keep in mind you know many states prohibit political contributions by lobbyists or lobbyist employers so if you're registered your organization is registered you may not be able to make contributions to candidates um that may be true now obviously that doesn't apply to a 501c3 organization but it would definitely apply to a c4 or a c6 organization it may just be that it's prohibited during the legislative session so there are also some temporal restrictions as well um you know i've mentioned the reporting and time keeping requirements um the the other thing to think about is there may be some special trainings ethics or sexual harassment trainings um is a new one that we see quite a bit now you may have to get a badge and wear it whenever you're in a capital building not that any of us are traveling far these days but once people are going back to lobbying in person there are sometimes requirements to wear a particular badge identifying your status as a lobbyist while you're in the building the other thing is that to the extent that you're engaged in lobbying activities you may be subject to audits by the various regulators and if if you are lobbying and you haven't been properly registered or if you're not properly reporting your lobbying activity people do notice so not only could you have issues with the various regulators but you might also have some pr issues as well i think we want to go the other way yeah so i think we'll pause for a second janice and do you want to give the code yes for those of you who are attending today's presentation for cle credit uh this is the important notice uh that you may be waiting for the code for today's presentation is april non-profit april non-profit all right thank you so i will jump right into the ethics and gifts rules and i know we are running a little short on time so i'll um kind of run through this really quickly so we can get to the rest of the presentation um this slide and we'll be uh providing this presentation to you all after the fact so i won't go too far into this but this is just meant to sort of give you a sense of how the federal gift rules vary based on who the recipient is so you can see it's it's a little bit different depending on who you're talking about what is a gift under the federal rules it could be anything from meals and beverages to travel expenses invitations to charitable events tickets to other kinds of events commemorative commemorative items and plaques and books periodicals and informational materials so it really is basically anything of value i wanted to highlight a couple of the exemptions to the federal gift rules now this is obviously not comprehensive and i highly encourage you to consult with council if you're thinking about making a gift from your organization to a federal or local or state official um but just to give you a sense of sort of what the different types of exemptions are um there are exemptions for certain types of receptions if you're offering nominal food or refreshments and that you know generally does not include alcohol there are exemptions for widely attended events which is a term of art it usually means you know more than 25 invitees from throughout a profession not only members of congress or members of the executive branch um sometimes the official is speaking but only in relation to their official duties um entertainment at the event itself is okay but entertainment after an event um you know sort of going to a ball game after a reception is not okay um there are exceptions for gifts of friendship this is a little bit tricky obviously you have to have a pre-existing relationship you want to make sure that it's not expense to your employer so in this case this would be if you have a personal relationship with a member of congress but even then there are restrictions on what they can accept for informational materials you can give books or periodicals but you can't give gifts of software and then there are of course exceptions for items of nominal value which include things like ball caps t-shirts greeting cards and items that are under 10 for items of nominal value there are very specific rules about that as well so you know obviously you want to make sure that this is something that you pay close attention to federal travel rules again nobody's going anywhere these days but hopefully one day soon we will all be back on flights um and you as an organization may pay for travel costs for um federal employees um but there are very specific rules about how that works and they need to be cleared by their ethics entities beforehand um i won't go too far into the details on that i would suggest that since they have to be pre-cleared by health and house and senate ethics you definitely just want to make sure that you're checking uh the rules before you even offer travel to a member of congress um in terms of state and local gifts and ethics rules it's really important that you understand what the rules are in whatever jurisdiction you're talking about before you go to an event before you offer a meal or even a cup of coffee in some instances um you know it's there are some states where similar to the lobbying rules where you know even a cup of coffee is a violation of the gift rules sometimes there's a specific dollar amount sometimes it's food and drink are okay or widely attended events are okay but you know seated meals are not um or there's an items of nominal value exceptions so just make sure that you know what the rules are before you give a gift to an elected official and i wouldn't always assume that they know what the rules are or that they're necessarily following them we hope we all hope the best of course but they can be very you know confusing and um you know very varied so you want to make sure that you understand before you do it all right i'm going to take myself off mute and go over in a few slides some of the key restrictions um for recipients those of you who are organizations that are federal grantees or contractors um the things that you need to understand as a recipient of federal funds related to your advocacy the first restriction that i'm going to highlight here is the simpson amendment if you are a 501c4 organization under this uh portion of the lobbying disclosure act um you are ineligible to receive any federal grant loan or reward if your organization engages in lobbying activities and we use the lda definition of lobbying activities for purposes of the simpson amendment so all of the roles that lindsay went over in terms of what is and is not lobbying um under the lda uh is the rule that applies here um and importantly this you know would not include grassroots lobbying because the federal lobbying disclosure act does not cover grassroots lobbying so this is about direct communications with federal officials um a 501 c 4 may however use a separate affiliated organization to engage in lobbying so if you're a 501c4 organization that seeks a federal grant loan or reward you could consider creating and or using a separate affiliate organization to engage in the lobbying activities that your c4 would otherwise engage in the other important restriction that that folks who have applied for federal funds in the past will probably be aware of and if you haven't before is called the bird amendment and the the basic rule here is that federal funds may not be used to lobby congress or the executive branch for a specific federal award your non-federal funds so if you have funds from membership dues or other kinds of activities may still be used to lobby for a specific federal award the government will presume ing to guidance provided by the office of management and budget that non-federal funds are used in a lobbying effort so long as the award recipient has sufficient non-federal funds to cover those um lobbying activities so you cannot um you cannot use federal funds to lobby for an award you have to file what's called an sf lll this is a form to disclose any activities to lobby for a specific federal award if non-federal funds are used to pay lobbyists for help in obtaining a federal award you will have to disclose the name of the lobbyists that made contacts on your behalf with respect to that award um more broadly if you're a federal contractor or a grant recipient you will be familiar with the uniform guidance issued by the office of management and budget including the cost principles for grants and rewards for nonprofit organizations some of you may have been familiar with the term circular a122 um all the provisions of former circular a122 are now in um title ii uh part 200 of the code of federal regulations and what's important to know is that you cannot bill expenditures for lobbying activities back to your federal award so a federal grant recipient cannot be reimbursed out of federal grant money to influence federal state or local elections or to influence federal or state legislation through director grassroots lobbying any membership dues that you pay to organizations that lobby are also unallowable costs um similar principles are in on the federal acquisition regulations which apply to commercial and federal contractors and they establish similar cost principles um as are in the omb uniform guidance there is a criminal statute on the books it's a permanent statutory prohibition on lobbying at all levels of government with federally appropriated funds it was amended in 2002 it's very old but it was amended to remove the criminal penalties in favor of the civil penalties that are now in place under the bird amendment um that amendment also made this statute broadly applicable previously it only applied to activities by officers and employees of the federal government um all of that said it appears to have never been forced to date but it is important to keep in mind that this is in place um lastly but not least and again this whole section could be its own webinar but usually there's a general writer included in annual appropriations including omnibus bills that we see where all the appropriations bills are passed at once that prohibits use of appropriated funds for lobbying or what's called propaganda or publicity purposes and you can think of that as grassroots lobbying there also are frequently specific statutory or appropriations limitations particular to particular federal programs related to lobbying and you may have in your particular award specific provisions in your contract and so it's always really important if you are a recipient of federal funds and you think oh you know can we charge this cost back to the award it's really important to look in all of these places to make sure that you understand whether and to what extent you're able to do that lindsay do you want to kick kick uh not kick us off um close us out with graphics home yeah i will yes um okay so this is obviously the most exciting part of this uh presentation um so for those of you who are engaged in grassroots advocacy um there are a number of different tactics that you may be using to do this work um some of the things that are you know most popular these days are telephone and texting campaigns um so i wanted to sort of spend a minute talking about the key regulations related to those um first is the tcpa which is the federal telephone consumer protection act of 1991 and then there are also state telemarketing and auto dialer laws as you heard me say about a hundred times already during this presentation um the state rules on all of these activities vary quite a bit so um it's just important to understand that if you're going to be engaged in uh telephone or texting campaigns that there may be rules around use use of live operators specific disclaimer language that you have to use time restrictions so you can only call within certain hours of the day consent requirements depending on the type of calls that you're making and whether you're using an auto dialer which we'll talk about in a second um and that the laws are continually changing so for example virginia just um enacted a new law related to telemarketing practices and tele and auto dialer practices that covers text messaging so the tcpa does apply to non-profit advocacy calls and texts there's a common misconception that you know if you have an advocacy message and you're not just telemarketing that you actually don't need to comply with tcpa but that's not necessarily true the tcpa does require prior express consent in order to call or text a cell phone the consent does not need to be in writing necessarily but we do recommend it and it is okay to deliver pre-recorded voice message calls or robo calls to landlines without prior express consent but not to cell phones pre-recorded messages must contain certain identification information so if you're going to do a robocall campaign you need to ensure that you include the identity of the entity initiating the call you have to state it clearly at the beginning of the message and you need to provide the telephone number of the calling party at some point during the message or after the fact you nonprofits are actually exempt from do not call restrictions but sometimes nonprofits like to scrub their list for um recipients who are on the do not call cam list because there is obviously a lot of confusion about whether it does or does not apply from a consumer perspective the other thing that we want to talk about a little bit and i'll get into some new developments here is peer-to-peer texting so you don't necessarily need consent to do a peer-to-peer texting campaign so um that's generally thought of as you know you have one human who's using some sort of software platform to send an individual text message to another human um on their cell phone um as long as you're not using an auto dialer you do not need consent um as as we identified above in the tcpa section so the the thing that's been confusing and the thing that has been a recent development is that the definition of auto dialer has been litigated quite a bit over the last couple of years including against non-profits um nonprofit organizations there was a recent very recent supreme court decision um this the facebook book versus dugud case um which i sort of more specifically um defined what constitutes unprohibited automatic telephone dialing system or auto dialer under the tcpa so the supreme court held that the device must have the capacity to either store or produce a telephone number using a random or sequential generator that means that the telephone number must be pulled out of thin air and then called or texted so if you have a list of phone numbers that you have um that you are texting and they're auto they're preset then that would not seem to apply here however there is an open question of what um capacity means in the context and i would imagine we'll see some more litigation over this question in the years to come the other thing that the supreme court did not address is um what whether human intervention is relevant so um you know the prevailing theory and the theory in certain circuits was that if an individual is actually the sender of that message then the tcpa did not apply the supreme court did not actually address that question so that's still a little bit of an open question so other things to keep in mind when you're engaged in telephone and texting campaigns in addition to the regulatory framework there are some best practices for sms campaigns we always recommend that you require opt-ins to before you begin texting especially obviously if you're using an auto dialer you need one if you're not using an auto dialer it's still great if you have one we always recommend that you honor opt out requests and that you scrub lists for individuals who have requested not to receive text messages from your organization there are calling hour restrictions and best practices for calling hour restrictions so even if the state specific state doesn't require that you call before or after certain or within a certain time period i should say we usually recommend that you know you limit your texting or calling campaigns to between eight and eight a.m to nine pm um there are also uh industry best practices and wireless carrier requirements that you should be familiar with the mobile marketing association and ctia have put out some guidelines so it's important that you're aware of what those are and then finally there are some recommended disclaimers for calls to action confirmation messages and program messages you know we we always encourage everybody to include certain disclaimer language in your text messages sometimes it's at the beginning when you get the first message sometimes it's actually in the call to action so if you you know have an advertisement where you want people to text in to receive messages from your organization you should include a specific disclaimer there as well email so obviously every organization has an email list and those email lists are very precious but you have to be aware of the requirements under canned spam and other marketing rules related to mass emails so can spam applies to unsolicited email advertising or promotional commercial products or services advocacy emails are obviously not likely to be commercial advertising but you just have to be careful that you understand those rules and make sure that they do not apply to your organization or your email um you want to make sure that you follow best practices when it comes to emails so you should send all emails from a legitimate active email address that um can receive incoming emails as well the from line should accurately identify the organization or the sender um the body of the message could should contain a postal address it can be a po box but you should have an address um you shouldn't have misleading subject lines or content in the body of the message if you are advertising some sort of promotional product or service you should include advertisement in the subject line or somewhere in the body of the email um and then obviously you have to have an opt-out um and it should be you know a simple way to opt out of those mass email messages if your organization is engaged in any broadcast advertising so television or radio just be aware that there are lots of requirements including fcc sponsorship identification requirements which requires a disclaimer at the end that identifies the full legal name of the sponsoring organization if you are engaged in any electioneering communications which refer to federal candidates close in time to an election 30 or 60 days depending on whether which type of election it is it requires a specific disclaimer identifying the sponsoring organization and that it was not coordinated or authorized by a particular candidate or candidates committee it requires a voiceover and has specific size and duration requirements as well certain state and local jurisdictions also have electioneering communication requirements so for example in the upcoming new york city elections um new york city and new york state both have electionary and communication requirements so if you are planning to run any ads to you know sort of talk about specific candidates and their positions on things be aware that those also might require specific disclaimers and may also be subject to reporting and registration obligations as well um and then finally i wanted to just mention quickly that state political um advertisements may also have other types of disclaimer requirements you might have to include you know the name of your top donors you may have to or names of your top donors you may have to include the names of your ceo there they may have voice over other disclaimer requirements as well for digital advertising the sponsorship identification requirements are going to vary quite a bit depending on the content and platform so for example if you're posting advertisements on uh paid advertisements on social media platforms most of those platforms have their own sponsorship requirements you'll see at the top of the facebook post for example that the ad was paid for by a specific organization um and typically the the platforms require the full legal name of the organization they will verify your organization before they will allow you to actually do paid paid advertisements on their platforms other types of digital ads static ads home page you know website homepage takeovers or newspaper homepage takeovers that kind of stuff will require different kinds of disclaimers um and formats for those disclaimers depending on the type of content so just make sure that you're aware of whatever disclaimer requirements and disclosure requirements are associated with the type of advertisements that you're planning to run oh also wanted to mention that digital radio disclaimers are different than broadcast radio disclaimers so if you're you know running ads on spotify or pandora for example it may require a different kind of disclaimer than on a broadcast radio station and finally i just wanted to touch very briefly on privacy rules and data collection um so you know you want to make sure that your nonprofit has reviewed your privacy policy that and that it actually matches what you are doing and what you're doing with data that you're collecting you should make sure that you have uh you're addressing the use of cookies and analytics tools in that privacy policy um and that you are disclosing to your donors and others um what you're doing with your data and that is something where i would highly recommend that you talk to you know privacy lawyers um or individuals who specialize in privacy rules to make sure that your privacy policy is compliant thank you so much lindsay um thank you all for staying with us today we went a little bit over we know that you have questions we will go through all of those and we'll respond to them um after this presentation um i hope that you will stay turned stay tuned for an email from venable for next month's webinar which i understand will be about the legal considerations related to returning to work or staying remote which is something that um we're all mindful of these days um thank you again and we hope you have a really great day