By Joanne G. Carman and Richard M. Clerkin
There are many confusing rules and regulations that impact nonprofit practices, especially for the small- and medium-size nonprofits that make up Trend Spotters. Perhaps none are more confusing than those involving nonprofit advocacy and lobbying.
Our most recent Trend Spotter survey on nonprofit advocacy and lobbying underscores many of these confusions. Almost half (48 percent) of our respondents replied that charities are legally prohibited from engaging in lobbying; 8 percent replied that charities are legally prohibited from engaging in advocacy.
In fact, although charities may be limited in the amount of lobbying they can do and how they pay for those activities, they are not legally prohibited from engaging in either lobbying or advocacy.
Before delving into the normative argument about why nonprofits should be politically active by engaging in advocacy and lobbying, let’s start with some basic definitions. As the Independent Sector argues, “Advocacy is a broad term covering a range of activities that seek to bring about systemic social change.” (See http://www.independentsector.org/advocacy – sthash.cYbL6Old.dpuf.) Lobbying is but one tactic or tool to use in accomplishing an organization’s advocacy goals. “Lobbying attempts to influence specific legislation through direct or grassroots communications with legislators or their staff.” (See http://www.independentsector.org/advocacy – sthash.cYbL6Old.UooHY6gY.dpuf.)
While there is no limit on the amount of advocacy charities can undertake, the IRS does place limits on the amount of lobbying. By default, lobbying must not comprise a “substantial part” of a charity’s activities. What constitutes a substantial part, though, is somewhat murky. Charities wanting a clear boundary to their lobbying activities are encouraged to file IRS form 5768 indicating their desire to operate their lobbying activities under section 501(h) of the Internal Revenue Code. This is referred to as taking the “h-election.”
Politically active: Perceptions and realities
While the vast majority (85 percent) of our Trend Spotter respondents do not perceive their organizations to be politically active, their activities point to a different reality. Almost three-fourths (74 percent) of this non-politically active group report that their charity has contacted an elected official at the federal (31 percent), state (66 percent) or local (60 percent) level to make them aware of their organization’s position on an issue. What can explain this apparent mismatch in the data?
Politically active: Process, not an event
Our Trend Spotters appear to understand that being politically active is a process. While they may have engaged in one-off contacts with elected officials, they do not perceive themselves as engaging in advocacy because they lack the capacity for sustained campaigns. Indeed, lack of staff (90 percent), volunteers (74 percent) and financial (83 percent) resources are the most common reasons given for not engaging in advocacy. Smaller, but not insubstantial, proportions do not engage in advocacy because they believe it is not legal (30 percent), it might tarnish their reputation (32 percent), or it is not central to their mission (55 percent).
As one Trend Spotter succinctly stated, the greatest challenge in engaging in advocacy is, “getting our message to legislators. We have no paid lobbyist and relatively new legislators, coupled with the reality of legislators being inundated with so many, many issues.” Without the staff or resources to make one’s voice rise above the din of others vying for the attention of legislators, it is difficult to be heard.
Charities should not expect results overnight. When talking about successful advocacy, one Trend Spotter reported, “Our success stories have been small incremental change, and finally, after 30 years of effort, we have successfully positioned key advocates is strategic arenas. Our longest-fought goal-creating a non-medical service model for people with a developmental disability-is looking hopeful within the next two, three years.”
Why nonprofits should be politically active
At their core, nonprofits are about values. Whatever these values are-homeless individuals ought to be treated with respect and dignity, firearms safety education and training are essential to protecting Second Amendment rights, appreciation of orchestral arts is fundamental to a civil society, women have the right to control their own bodies, life is sacred from natural conception to natural death, animals should not be subject to testing for human benefit, to name just a few of many, many values driving the creation of nonprofits-charities are formed to express values. Therefore, it is mission critical that nonprofits play an important role in developing and implementing public policies in support of these values.
As James Madison argued in Federalist No. 10, a republican form of government is necessary to distribute the power among many factions to prevent a tyranny of the majority from arising. An “improper or wicked project” (pg. 5) that benefits the few may be promoted, but the distribution of power among other interests will prevent the public will from being co-opted. While the development of factions is inevitable, they are necessary to preserve the liberty of citizens of the republic. Nonprofits, representing these values, play a critical role in this political process.
Given our adversarial legislative and legal system, nonprofits must be at the table representing and promoting their values, or as the saying goes, they will be on the table, being taken apart by other nonprofits and interest groups who oppose their values.
From among the many great resources for charities that want to be politically active, here are a few that provide excellent information about rules and regulations for charitable lobbying and tactics that can lead to successful advocacy campaigns.
Joanne G. Carman is an Associate Professor in the Political Science and Public Administration Department at the University of North Carolina-Charlotte. Her teaching and research focuses on program evaluation and nonprofit management, and she is the coordination of the Graduate Certificate in Nonprofit Management.
Richard M. Clerkin is an Associate Professor in the Public Administration Department and Interim Director of INPREE at NC State University. His teaching and research focuses on philanthropy and management, and he is director of the Graduate Certificate in Nonprofit Management.