Ballot Training
Lobbying Discussion
Excerpt from The Nature Conservancy Lobbying
Training Prepared BY:
Douglas N. Varley, Esq.
Caplin & Drysdale, Chartered
Washington, DC
A Powerful Tool for Conservation
State funding for conservation
More favorable laws for conservation
transactions
Better environmental laws
Better enforcement and commitment
What is Lobbying?
Contacting, or urging the public to contact
members of a legislative body for the purpose
of proposing, supporting or opposing legislation
OR
Contacting, or urging the public to vote in
support or opposition to a ballot measure
Regulated Activity
Federal Laws
Tax Law (IRS rules)
Lobbying Disclosure Act
Restrictions on Recipients of Federal Grants
State Laws
Election and Campaign Disclosure Laws
IRS Rules
501(c)(3) states that in order to qualify as a
charitable organization, “no substantial part of
the activities [may consist of] carrying on
propaganda, or otherwise attempting, to
influence legislation…”
Not-for-profit organizations could lose the tax-
exempt status if a substantial part of its
activities are attempts to influence legislation.
The 501(h) Election*
In 1976, IRS created the 501(h) election to
provides guidance for measuring the
amount of lobbying a not-for-profit
organization is allowed.
Most organizations take the 501(h) elections
and follow these guidelines.
Guidance is more clear giving 2 factors:
The 501(h) Election*
20% of your annual budget can be spent on
all lobbying to a maximum of $1 million
Grassroots lobbying is limited to 25% of
your total allowable lobbying limit
Expenditures made to encourage individuals
to take a lobbying action are counted
against the limit but not their time.
What is a “Substantial Part”?
TNC uses the “insubstantial part” test
The IRS has never answered this question
clearly. Instead, the IRS will consider all
facts and circumstances.
TNC BOG authorized lobbying expenditures
of up to 2% of the organization’s overall
charitable budget.
No Substantial Part Test
Qualitative and Quantitative factors relevant:
Money spent on lobbying
Hours spent by staff and volunteers on
lobbying
Amount of attention/publicity organization
assigns to lobbying – What can we say in
our literature and mailing?
Are You Influencing Legislation?
Legislation includes:
action by the legislative body at the local,
state, national, or international level and
action by the general public in a referendum,
initiative, constitutional amendment, or
similar procedure.
Are You Influencing Legislation?
(continued)
Legislation does not include action by
executive or administrative bodies.
This means that attempts to influence agency
rules, regulations or executive decisions are
not lobbying.
What is Lobbying?
Public Communications:
This definition is broader than is used by
some other environmental groups.
Communications with the public can be
lobbying even if they do not refer to
legislation or include a “call to action.”
Public education efforts need to be planned
carefully if not counted as lobbying.
Activities That Are Not Lobbying
Nonpartisan Analysis/Research: Well-
reasoned analysis from which recipient could
form independent conclusion – “full and fair
exposition” of the facts. Must be distributed
to audiences on both sides of the issue
addressed.
Reports or other documents that satisfy this
test can take a position for or against
legislation.
Activities That Are Not Lobbying
Technical Assistance to Government Body:
Response to a prior written request from a
governmental body (not just an individual
legislator).
Response can be oral or in writing.
Must be limited to the question(s) asked in
the written request.
Supporting Activities
What supporting activities count as
lobbying?
The IRS will view any activity undertaken for
the purpose of attempting to influence
legislation to be lobbying (unless an exception
applies).
Includes time and expenses spent researching,
planning, and preparing lobbying activities as
well as the lobbying communication itself.
Mixed Use Activities
If you travel for lobbying and nonlobbying
purposes, allocate travel time/cost.
If a newsletter contains lobbying and
nonlobbying content, allocate publication costs
by page count.
Costs of maintaining a volunteer action network
allocated by out put.
Working in Coalitions
Form a separate organization (need tax
Employer Identification Number – EIN)
Can incorporate but not necessary
Form a ballot committee
One member organization can host the
coalition, ie – Land for Tomorrow, The
Conservation Campaign, as “a project of”
Volunteer Lobbying
TNC must report lobbying by its volunteers
on its annual tax return
Who is a volunteer lobbyist for TNC?
Use Volunteer Lobbying Tracking Form
Restrictions Imposed on
Recipients of Government Grants
The Nature Conservancy is prohibited from
using federal funds or any matching funds to
pay for attempts to influence legislation or
the outcome of an electoral process -- do not
charge lobbying activities to a grant center.
Campaign Prohibition
The Nature Conservancy is strictly prohibited
from intervening in an election campaign on
behalf of or in opposition to any candidate for
public office.
Zero tolerance
Get Advice
Local or Regional Attorney
External Affairs Attorney –
lobbyinghelp@tnc.org
External Affairs Website –
www.home/tnc/xa/lobbying
Attorney pro-bono
Alliance for Justice – www.afj.org