Guidelines
for Public Employees:
Lobbying Guidelines
for Public Employees
For those of you who work for a public agency, supported by local, county or
state governments, there are certain lobbying restrictions for you when working
on activities that will influence the outcome of legislation.
ALWAYS CHECK YOUR AGENCY POLICIES, GET WRITTEN COPIES, AND ABIDE BY THEM. Policies
vary. All are based on federal and state law, while some agencies add their
own requirements. Follow the rules.
The First Amendment protects your right to lobby members of Congress, congressional
staff, congressional committees and other elected officials. However, your
actions cannot be interpreted as official announcements of federal or state
or local policy coming from your institution. When contacting members of Congress,
identify yourself as a concerned citizen in your community presenting your
personal views.
At the same time, however, you shouldn’t feel like you have
to conceal your employer. You are allowed to tell the person you
are talking with that you work for a facility that is supported by
the county, state or federal government, as long you make it clear
that you are speaking on behalf of your personal views and/or the
National Council of State Directors of Adult Education and that the
views expressed are your own.
Generally speaking, appropriated public funds may not be used, directly or
indirectly, to pay for lobbying activities. This means that anything paid for
by the government, including your salary, telephone, copier, letterhead, fax
machine, postage, etc., may not be used to support your lobbying activities.
Again, check your agency policies and understand what is expected of you. Exercise
discretion.
However, personal funds or funds provided by non-governmental organizations
may be used to support these activities.
Your participation in the democratic process can be personally satisfying
and is critical to adult education’s success, so please do
not feel discouraged from lobbying. If you have any questions or
need additional information, please contact your local ethics official.
Lobbying Guidelines for 501(c)(3) Organizations
It
is important to know what activities tax-exempt, non-profit [i.e.,
501(c)(3)] organizations can conduct. Recent rulings by the IRS have
clarified many of the uncertainties expressed by some in the non-profit
sector: while lobbying by non-profits is entirely lawful, political
activity is strictly prohibited. So, what is the difference between
lobbying and political activity?
A Resource: If you have questions regarding appropriate activities, feel free
to contact Marsha Tait at ProLiteracy at 315.422.9121 ext 322 or mtait@proliteracy.org.
Lobbying. A 501(c)(3) may not engage in substantial
lobbying, a term that has never been clearly defined. A general guideline
is to spend less than 5 percent of an organization's budget on lobbying,
although the Internal Revenue Service (IRS) has not officially sanctioned
this. Lobbying, for this purpose, includes funds used to retain a
lobbyist and probably covers communication to members and the public
for or against a particular piece of legislation.
Fortunately, organizations that wish to avoid the vague "insubstantiality
of expenditures" test may utilize section 501(h) of the Internal Revenue
Code. This "safe harbor" specifies exact dollar limits for 501(c)(3)
lobbying expenditures, based on a budgetary sliding scale, with an annual
cap of $1 million. A 501(h) election carries advantages beyond a degree of
certainty, including, in many cases, the imposition of penalty taxes rather
than loss of tax exemption, and clearly specified favorable exclusions, such
as time donated by volunteers and funds spent on executive branch advocacy.
However, an organization may not spend more than 25 percent of its total
lobbying budget on grassroots lobbying, efforts to encourage action by the
general public.
A 501(c)(3) exempt organization makes a 501(h) election by filing Form 5768
with the IRS, thereafter maintaining detailed records. A reasonable allocation
of expenses is required for activities that include both lobbying and nonlobbying
purposes. A 501(h) election is not available to certain supporting organizations
that receive their public charity status through support of another 501(c)(6)
association.
Incidentally, a 501(c)(3), whether it makes a 501(h) election or not, is not
affected by the 1993 law eliminating the deductibility of lobbying expenses.
Political activities. The law clearly prohibits
501(c)(3)s from engaging, directly or indirectly, in political campaigns,
whether through establishing a PAC or contributing funds to candidates.
The only legal way to engage in political activity would be to create
a separate entity under a permissible tax code provision, preferably
501(c)(6). This is not as daunting as it may appear, although legal
counsel is essential in setting up the structure and filing the proper
documents. The 501(c)(3) and (6) entities may share boards of directors,
headquarters, and even staff, but strict financial separation is
required.
Political activity is defined as influencing the outcome of an election-federal,
state, or local-and is not permitted under the law. Failure to comply with
the law could cause the organizations to lose both its tax-exempt status and
its ability to assure donors that their contributions are tax deductible.
As a 501(c)(3) you can:
-
Inform
candidates of your position on issues and urge them to support
your interests;
-
Distribute
position papers to the general public and your members
-
Publish
and distribute a voting record that lists pieces of legislation,
describes it, and notes how a member voted;
-
Host
a public forum to allow candidates to discuss their views on
subjects of interest to the organization;
As
a 501(c)(3) you cannot:
-
Work
for or against the election of a candidate, or endorse or oppose
a particular candidate;
-
Direct
financial contributions to a candidate, political party or political
action committee (PAC), or provide in-kind contributions to a
candidate, political party or PAC.
While
this information is intended as a resource guide, it in no way
represents legal advice. You may wish to seek legal counsel for
specific legal advice on what is/is not permitted under the law.
(Provided by the Independent Sector)
