IL NET ____________________________________________________ NCIL/ILRU NATIONAL TRAINING & TECHNICAL ASSISTANCE PROJECT May 29, 1997 Dear Colleagues, Attached is another in our series of Frequently Asked Questions (FAQ) publications--this one addresses lobbying and the role of the independent living center. As you know, your well being is always foremost in our minds. So, recognizing that your time is precious and you can little afford to waste it reading information you already know, we have constructed the following test. It is entitled, "YOU DON'T NEED/HAVE TO READ THIS FAQ IF. . . ." As you might imagine, we recommend that you do read the FAQ if you check one or more of the items below. You don't need to read this FAQ if: _____ You have never been told that centers receiving Title VII funding are not allowed to do lobbying under any circumstances. (Nonsense, see answer number 3.) _____ You are stuck for a response when someone asks you to distinguish between advocacy and lobbying. (See number 7.) _____ You awake in a cold sweat in the middle of the night wondering if your recent bold actions could have jeopardized your 501(c)(3) status. (See number 6.) _____ You read the Internal Revenue Code on lobbying four times and remain totally mystified. (See number 8.) _____ You don't know--and can't find anyone who can provide you with--the specific regulations on lobbying with which you must comply. (See number 10.) _____ You are astonished to learn that certain lobbying activities may be supported by federal funds, including Title VII. (See number 5.) For those of you who now know with certainty that you do not need to read this FAQ, please pass this on to some less knowledgeable co-worker and accept our snappiest salute. By the way, while we were totally confident of our information, for your sakes, we had our answers reviewed by an attorney who specializes in lobbying issues, as well as John Nelson, chief of the Independent Living Branch of RSA, and a Department of Education general attorney. We would appreciate any feedback you care to provide us on this FAQ as well as any recommendations you have for topics we can address in future FAQs. We hope to see you at one of our training programs this year. Meanwhile, best regards from all here. Cordially, Laurel Richards IL NET Co-Director FREQUENTLY ASKED QUESTIONS ABOUT LOBBYING AND CILS "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 ________________________________ _____________ The following are questions about lobbying which have been raised during our training programs, technical assistance calls, and consultant work. To answer these questions, 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 them useful. 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 when awarding federal funds. 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--and always get a second opinion. 3. I have been told that centers which receive Title VII funds are restricted from lobbying. Is this true? CILs that receive Title VII funds are restricted from using Title VII as well as other federal funds to engage in most lobbying activities. However, as stated above, centers may use non-federal funds to engage in non-restricted lobbying activities. 4. What lobbying activities may not be supported with federal funds? Briefly, lobbying activities which may not be supported with federal funds include: Federal, state, or local electioneering and support of such entities as campaign organizations and political action committees; Most direct lobbying of Congress and state legislatures to influence legislation; Lobbying of the executive branch in connection with decisions to sign or veto enrolled legislation; Efforts to use state or local officials to lobby Congress or state legislatures; Grassroots lobbying concerning either federal or state legislation; and Legislative liaison activities in support of unallowable lobbying activities. 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? Lobbying activities which can be supported with federal funds include: Lobbying at the local level; 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; Lobbying in the form of a technical or factual presentation to Congress or state legislatures, at their request; Contacts with executive branch officials other than lobbying for the veto or signing of enrolled bills, and Lobbying on regulatory actions or decisions by governmental entities, other than legislative bodies, including school boards, transportation commissions, and other administrative agencies. Attempting to influence judicial decisions. 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 as educating 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 (v) to inquire about resource materials he has developed regarding lobbying and the tax code. Other sources include Independent Sector (David Arons, 1828 L, N.W., 1200, Washington, D.C., 20036; 202-223-8100), Alliance for Justice (Donna Eubin, 2000 P St., N.W., Suite 712, Washington, D.C. 20036; 202-822-6070), and Chronicle of Philanthropy, (Derria Neal, 1255 23rd Street, N.W., Washington, D.C.; 202-466-1200). 9. How does the Lobbying Disclosure Act of 1995 affect centers? In most cases, it doesn't. The law requires that people who are hired to influence Congress or top federal executive branch officials are required to register as lobbyists, to report their areas of interest, and to specify the amount of money spent on lobbying activities. Lobbyists who spend 20 percent or more of their time attempting to influence these federal officials must register with the Clerk of the House and the Secretary of the Senate. Centers which pay less than $5,000 in a six-month period for the services of a lobbyist or spend less than $20,000 in a six-month period on lobbying-related activities are not required to register. 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. To access OMB Circular A-122 online, go directly to www.doleta.gov/regs/omb/a-122.html. For a copy of the Lobbying Disclosure Act of 1995 (P.L. 104-65), Act and other federal legislation, go to http://thomas.loc.gov, probably the best springboard into everything from public documents to the inner workings of Congress. To download the act directly, type in ftp://ftp.loc.gov/pub/thomas/c104/51060.enr.txt. To find the IRS online, point your browser to http://www.irs.ustreas.gov. The Alliance for Justice also maintains many valuable resources online at their website at http://www.afj.org. 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 lobbbying? This FAQ is intended to provide the basics. If you need more information, be sure to contact an attorney or your legislator. 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, and Sergio Kapfer, Department of Education General Attorney, Division of Educational Equity and Research for agreeing to review these responses. The IL NET is a collaboration of the National Council on Independent Living (NCIL), the Independent Living Research Utilization (ILRU) Program, and organizations and individuals involved in independent living nationwide. Now entering its second three-year funding cycle, the IL NET is building on its strong foundation to address the spectrum of needs expressed by centers for independent living and statewide IL councils. 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, 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