501c3's and the Supreme
Court
Kendra Sue-Derby, KsDerby@afj.org,
Our Non-Profit Advocacy department has been getting a number of Technical
Assistance calls regarding 501c3s getting involved in the Supreme Court
activities. While everyone that has been working on these issues for the
last 4 years understands what we can and cant do, some of the groups that
are joining us recently may have some questions. Therefore, Im
circulating our One Pager for anyone that might find it helpful. Please
feel free to distribute this as needed.
Kendra-Sue Derby
Director of Grassroots Operations
Alliance for Justice
11 Dupont Circle, NW
Second Floor
Washington, DC 20036
202-822-6070 phone
202-822-6068 fax
ksderby@afj.org
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Confirmation
of Federal Judges and Executive Branch Nominees
What Your Nonprofit Needs To Know
501(c)(3) public charities are legally allowed to influence the Senate
confirmation of federal judicial and executive branch nominees.
The Internal Revenue Service (IRS) has recognized that influencing the
confirmation of federal judges is exactly like influencing any other
legislative vote through lobbying. Because the Senates action of advice
and consent on a judicial nomination is an action with respect to a
resolution or similar item, the Senates confirmation vote constitutes a
vote on legislation. (Notice 88-76, 1988-2 C.B. 392.)
Likewise, Senate actions to confirm cabinet level nominations are also
considered legislative actions. Attempts by a 501(c)(3) public charity to
influence the confirmation of executive branch nominees would similarly
fall under the IRS definition of lobbying.
It is important to remember that 501(c)(3) public charities can lobby
within the generous limits allowed by law. Because influencing judicial
and cabinet level confirmations are clearly lobbying activities,
consideration of the general lobbying rules can maximize your lobbying
efforts on these nominations.
Remember These Key Points
- The Internal Revenue Code offers two ways for 501(c)(3) public
charities to measure lobbying activities: (1) the insubstantial part
test, which is the default standard for all public charities or (2) the
501(h) expenditure test, which a public charity must affirmatively elect
as its lobbying standard.
- Electing to measure your organizations lobbying using the 501(h)
expenditure test can amplify your lobbying activity.
Under the 501(h) expenditure test, only actual lobbying expenditures
count against the organizations lobbying limits that means cost-free
activities, such as volunteered time or donated materials, do not count
against the organizations lobbying limits.
The 501(h) expenditure test provides a clear dollar limit on the amount
of money an electing 501(c)(3) can spend on lobbying. Each public
charitys lobbying limits will depend on the size of
the organizations
budget, but the 501(h) expenditure test formula usually provides much
higher lobbying dollar limits than the default insubstantial part test
for most organizations, as much as 20% of the budget can be used for
lobbying activities.
An organization that measures its lobbying under the 501(h) test may
spend up to one-quarter of its overall lobbying limit on grassroots
lobbying (urging the general public to communicate the organizations
position on the nominee to their U.S. Senators) or it may spend up to the
entire amount on direct lobbying (telling the Senators or their staff to
support or oppose a nominee or urging the organizations members to do so).
A 501(c)(3) may choose to measure its lobbying under the 501(h)
expenditure test by filing a one-time simple formForm
IRS 5768.
- If the 501(c)(3) has not chosen to measure its lobbying under the
501(h) expenditure test, it may still lobby on judicial and executive
branch nominations and other issues as long as its lobbying activities do
not become a substantial part of the 501(c)(3)s overall activities (the
default insubstantial part test).
- If your organization wants to engage in more lobbying than is permitted
for 501(c)(3)s, consider creating an affiliated 501(c)(4) organization.
501(c)(4)s can engage in an unlimited amount of lobbying, including
judicial and executive branch nominations.
More details about public charity lobbying activities and the 501(h)
expenditure test can be found in Being A Player: A Guide to the IRS
Lobbying Regulations for Advocacy Charities, available from the Alliance
for Justice. The Alliance also offers Worry-Free Lobbying for Nonprofits:
How To Use the 501(h) Election to Maximize Effectiveness, available to
download for free from our website at www.allianceforjustice.org.
For additional information, please feel free to contact the Alliance for
Justice.
The Alliance publishes plain-language guides on nonprofit advocacy
topics, offers educational workshops on the laws governing the advocacy
of nonprofits, and provides technical assistance for nonprofits engaging
in advocacy.
11 Dupont Circle, N.W., 2nd Floor Washington, D.C. 20036
Phone: 202-822-6070 Email: advocacy@afj.org
www.allianceforjustice.org