READINGS
in Independent Living

FREQUENTLY ASKED QUESTIONS ABOUT LOBBYING AND CILS

Revised 1998
by Bob Michaels
"It's easy to tell if a center's doing strong advocacy. Someone from the state is telling them they're not allowed to lobby."
--Ed Roberts

This FAQ addresses lobbying questions which have been raised during our training programs, technical assistance calls, and consultant work. It was originally developed in May 1997. We have just revised it in response to amendments made to OMB Circular A-122.

In developing this FAQ, a study was conducted of pertinent regulations of the Internal Revenue Service and the Department of Education, and then the answers were reviewed with an attorney specializing in lobbying issues and with John Nelson, chief of Independent Living Branch of Rehabilitation Services Administration and other officials of the Department of Education. We hope you find this FAQ useful, and we welcome any recommendations for improving it that you care to offer.

1. Are centers for independent living allowed to lobby?

Yes, CILs may lobby; however, the types of lobbying activities that are permissible vary, depending on whether they are supported with federal or non-federal funds. In addition, a CIL's lobbying activities may be further limited by Internal Revenue Service regulations applicable to nonprofit organizations.

2. What statutes or regulations do centers need to follow with regard to lobbying?

  • The federal government requires granting and contracting agencies, such as the Department of Education, to follow guidelines set out in the Office of Management and Budget (OMB) Circular A-122 (as amended in August 1997) when awarding federal funds. Additional restrictions may be found in Department of Education regulations 34 CFR Part 82.
  • Centers may elect to follow guidelines set out in regulations developed under the Internal Revenue Code, Sections 501(h) and 4911.
  • Centers which employ lobbyists or direct considerable funds to lobbying
    activities must meet reporting requirements set out in the Lobbying
    Disclosure Act of 1995 (P.L. 104-65).

While requirements contained in these three documents will be covered in the
remainder of this FAQ, there may be other federal, state, or local laws or regulations
which affect the lobbying activities of a center. Center staff should contact agencies
in their states which regulate activities of nonprofits and request provisions related
to lobbying activities.

It is imperative that center staff have a thorough understanding of these laws and
regulations whenever issues of compliance are raised--andalways get a second
opinion.

3. I have been told that centers which receive Title VII funds are restricted from lobbying. Is this true?

Except as described in #5 below, CILs that receive Title VII funds are restricted from using Title VII as well as other federal funds to engage in lobbying activities. However, as stated above, centers may use nonfederal funds to engage in lobbying activities.

4. What lobbying activities may not be supported with federal funds?

Briefly, lobbying activities which cannot be supported with federal funds include:

  • Attempts to influence the outcome of any federal, state, or local election, referendum, initiative, or similar procedure;
  • Supporting in any way a political party, campaign, political action committee, or other organization established for the purpose of influencing the outcome of elections;
  • Any attempt to influence the introduction, enactment, or modification of federal or state legislation, including efforts to utilize state or local officials to engage in similar activities;
  • Any attempt to influence the introduction, enactment, or modification of federal or state legislation by trying to gain the support of part or all of the general public;
  • Legislative liaison activities in support of unallowable lobbying activities;
  • Any attempt to influence an executive or legislative branch official with respect to any grant, contract, loan, or cooperative agreement.

It is important to note that activities that may not be supported by a center's federal funds may be supported by its nonfederal funds.

5. What lobbying activities may be supported with federal funds?

Non-restricted lobbying activities (that is, those lobbying activities which can be supported with federal funds) include:

  • Providing a presentation through hearing testimony, statements, or letters in
    response to a documented request, if the information needed for the presentation is readily available. Costs for travel, lodging, and meals are not allowed unless testimony is given in response a written request from the chairman or ranking minority member of a Congressional committee or subcommittee;
  • Lobbying to influence state legislation, in order to reduce directly the cost of
    performing the grant or contract or to avoid impairing the organization's ability to do so;
  • Any activity specifically authorized by statute to be undertaken with funds from the grant, contract, or other agreement.

6. Will we jeopardize our center's 501(c)(3) status if we lobby?

There are really two questions which must be answered: Is the activity under consideration really lobbying and does lobbying constitute a substantial portion of what the center does, under IRS rules.

Question One: Are the center's activities lobbying or something else?

Direct lobbying is defined in the Internal Revenue Code (IRC) and regulations as "Any attempt to influence any legislation through communication with any member or employee of a legislative body or with any government official or employee who may participate in the formulation of the legislation."

This includes such obvious activities as contact with a legislator about a specific piece of legislation, advocating for increases in funding in the budget, opposing a candidate for appointive office, and encouraging the general public to support or reject an initiative, referendum, or board measure.

Direct lobbying does not include activities such aseducating decision makers about issues of importance to people with disabilities, administrative lobbying, surveying candidates for office, attending public hearings, or even testifying if requested by a legislative committee in writing. Nonpartisan analysis and self-defense lobbying also qualify as exceptions under IRS rules.

A communication (with the general public or any segment thereof) will be treated as grass roots lobbying if, and only if, the communication (1) refers to specific legislation, (2) reflects a view on such legislation, and (3) encourages the recipient to take action with respect to such legislation (for instance, through a "call to action").

Question Two: Is lobbying a substantial part of what the center does?

Centers can either elect to comply with IRC Section 501(h), which requires filing papers with the IRS and reporting annually on lobbying activities, or elect not to file under the law. Compliance with the law allows 501(c)(3) corporations to expend as much as 20 percent of their funds for lobbying activities depending on the size of the organization. Those choosing not to file may only spend an amount which is not "substantial." One court ruled that devoting more than five percent of an organization's resources to lobbying activities was substantial.

So, why doesn't everyone file under IRC 501(h)? Because most organizations haven't learned about it yet. The guidelines are far more generous, yet record-keeping demands for day-to-day lobbying activities are virtually the same.

7. How does lobbying differ from advocacy?

In the regulations for Title VII of the Rehab Act, advocacy is defined as "pleading an individual's cause or speaking or writing in support of an individual. . . . Advocacy may be on behalf of a single individual . . . a group or class of individuals . . . or oneself." Note that in this context, "pleading" is a legal term meaning "a formal statement setting forth the defense of a case" (Random House Dictionary). Advocacy, then, is action taken to convince others of the rightness of your cause and of their need to join you in supporting this cause. Lobbying is a subset of advocacy in that it is a set of activities that plead a cause and set forth the defense of a case in order to influence the voting of legislators. In other words, lobbying is advocacy with a very narrow and specific focus--to convince legislators to vote as you wish them to on specific legislative proposals. Thus, the use of the word "advocacy" does not change the nature of what is or is not permitted as a lobbying activity.

8. Where can our center get more information about compliance with the Internal Revenue Code?

You can always try the IRS itself, but most of its information is not written for people other than certified public accountants. One excellent source of information we've found has been written by Greg Colvin, an attorney who specializes in this area. You can contact Greg at Silk, Adler, and Colvin 415.421.7555 to inquire about resource materials he has developed regarding lobbying and the tax code. Other sources include Independent Sector (1828 L, N.W., 1200, Washington, D.C., 20036, 202.223.8100); Alliance for Justice (2000 P St., N.W., Suite 712, Washington, D.C. 20036, 202.822.6070); and Chronicle of Philanthropy (1255 23rd Street, N.W., Suite 700, Washington, D.C., 20037, 202.466.1200).

9. How does the Lobbying Disclosure Act of 1995 affect centers?

In most cases, it doesn't. Centers which attempt to influence Congress or top federal executive branch officials may be required to register, to report their areas of interest, and to specify the amount of money spent on lobbying activities. A center is required to register under the Act only if: 1) an individual employed or retained by the center makes more than one contact and spends 20 percent or more of his or her time providing lobbying activities for the center during a six month period; and 2) the center's total expenses in connection with lobbying activities exceed $20,000 in a six month period.

10. How may I obtain copies of the documents identified in this FAQ?

The documents referred to in this FAQ are available through the Government Printing Office or from your auditor or congressman. In addition, many codes, regulations, and legislation can be downloaded electronically from the Internet.

CONCLUSION

As you know, advocacy is one of the core services of a center, essential to achieving the mission of promoting independent living opportunities for persons with disabilities. This said, among questions most often heard by IL NET trainers and technical assistants are what constitutes advocacy and what distinguishes it from lobbying? This FAQ is intended to provide the basics. If you need more information, be sure to contact an attorney or your grantor agency.

This fact sheet was prepared by Bob Michaels with assistance from Laurel Richards, Cynthia Dresden, and Dawn Heinsohn. We extend our appreciation to Greg Colvin, John Nelson of the Independent Living Branch, RSA, Sergio Kapfer, Department of Education General Attorney, Division of Educational Equity and Research, and Susan Winchell, Department of Education Ethics Counsel Staff for agreeing to review these responses.

Revised March 1998

This document may be reproduced for noncommercial use without prior permission if the author and ILRU are cited.

The mission of the IL-NET is to provide training and technical assistance on a variety of issues central to independent living today--understanding the Rehab Act, what the statewide independent living council is and how it can operate most effectively, management issues for centers for independent living, systems advocacy, computer networking, and others. Training activities are conducted conference-style, via long-distance communication, webcasts, through widely disseminated print and audio materials, and through the promotion of a strong national network of centers and individuals in the independent living field.

ILRU is a program of TIRR Memorial Hermann, a nationally recognized, free-standing medical rehabilitation facility for persons with physical and cognitive disabilities.

Substantial support for development of this publication was provided by the Rehabilitation Services Administration, U.S. Department of Education. The content is the responsibility of ILRU and no official endorsement of the Department of Education should be inferred.

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