Non-Profits and Lobbying

During the Society’s annual meeting in Las Vegas (August 2011), the Board created a new committee -- the Committee on Social Action (CSA), chaired by the Board’s Vice President, Wendy Chapkis. The creation of this committee was in response to formal and informal discussions by the Administrative Office and Board, and members, on ways in which the SSSP can be more active and visible on a wide range of social issues and at the same time retain its non-profit status. As a social justice organization, we engage in lobbying and advocacy activities. In the past two years alone we have passed resolutions and written letters on immigration legislation, a clean water act, the death penalty, academic freedom, domestic violence, and the human and legal rights of sex workers. Because we are a 501(c)(3) organization and do not want to lose our non-profit status, both the Administrative Office and the Board have been careful not to engage in or encourage activities that violate lobbying rules for non-profits. Fortunately, the restrictions placed on non-profits are not that prohibitive.

Non-profits are limited by the requirement that “no substantial part of the activities be used for carrying on propaganda or otherwise attempting to influence legislation.” In other words, the SSSP can try to influence legislation as long as it is not a “substantial part” of its activities, which I believe it is not and is not likely to become. “Substantial,” however, is a vague term and the IRS does not provide much guidance on the appropriate “insubstantial” amount of lobbying or what specifically constitutes lobbying under this test. If we envision engaging in more social action, however, we may want to consider a different test to ensure that we do not jeopardize our non-profit status.

Expenditure Test

In 1976, Congress introduced the 501(h) “expenditure test” to provide non-profits with clear dollar-based limits on how much an organization can spend on lobbying activities. Measured in monetary terms, the amount of lobbying in which we engage is miniscule. Under the 501(h) expenditure test, there are two types of lobbying: direct and grassroots. The former refers to expressing a view on a piece of legislation directly to a legislator. Grassroots lobbying refers to any kind of communication with the public on a piece of legislation that recommends an action, and actions are clearly defined: (1) contacting legislators or their staffs; (2) providing the public with legislators’ contact information; (3) providing the public with a mechanism with which to contact legislators (e.g. tear-off postcard, petition, letter, etc.); and (4) listing legislators’ names and their vote or position on legislation. For both direct and grassroots lobbying to constitute lobbying, all of the criteria for an activity must be present. If a criterion is missing, then it is not lobbying but rather advocacy. For example, if the SSSP takes a position on a public policy issue, but does not recommend an action, it is considered advocacy, not lobbying. If we want our activities measured under the expenditure test (501(h)), we must elect it by filing the appropriate IRS form. I plan to gather more information on the 501(h) election and to present it to the CSA or directly to the Board if, in my estimation, my research reveals that it is the best option for the SSSP.

Lobbying Vital

We cannot engage in “political activity,” i.e., we cannot participate or intervene in a political campaign on behalf of or against a candidate running for political office; which, to my knowledge, we have not done. But this is an area in which we must be very careful, especially during an election, since criticizing the position of a political candidate may constitute political activity. It is certainly possible that in the future we may want to engage in activities that may jeopardize our non-profit status and it is also possible, if not likely, that lobbying activities will become a more “substantial” part of what we do. In either case, we will seek expert advice to ensure that we do not place our non-profit status at risk. But there is no question that lobbying and other forms of advocacy work are vital to our organization. If we do not give voice to or address the needs of groups that are most vulnerable, or if we fail to provide them with resources they do not have, including the ability to generate, analyze, and present data in a compelling way in the public arena, then we fall short of being the type of organization that we purport to be and that many of our members believed they joined or want it to be. The creation of the CSA by the Board reaffirmed that the SSSP is that kind of an organization. I share the Board’s view and encourage you to bring to our attention issues that you believe the Society should address as an organization.

In closing, I would like to invite you to respond to this column or simply comment on the issue, which we could, with your permission, include in the next issue of the newsletter and share with CSA. This is an important conversation which I would like to continue, including in Denver, August 16-18. I hope everyone is having a good year, and I hope to see you in Denver.