One of those uncomfortable topics which comes up quite a bit in the nonprofit world is the debate over advocacy and lobbying, what is allowable and what is not, and how to not get oneself into trouble. Let us face it, we all have opinions about how the world should be and how to make it the way we envision it. In the nonprofit world there is no lack of strong and passionate opinions. In fact, it is almost inconceivable that a person could work in the nonprofit sector and not have strong passions. For example, at United Way we care about education, health, and financial stability. That means we care about making sure that students, teachers, families, schools, and others have all the tools necessary to bring about positive outcomes. It also means that we are passionate about topics like substance abuse, mental health, homelessness, social supports, etcetera. And let us be honest, all of these can be controversial.

On the other hand, there is a mythology which says that nonprofits, especially those incorporated as 501(c)3 charities, cannot get involved with lobbying or advocacy activities. In fact, that is both true and false, which will be the topic of this column.

First, let us be clear that the IRS has some very strict rules as it relates to the types and amount of lobbying and advocacy which a nonprofit can do. And if a 501(c)3 goes too far, it runs the risk of facing severe penalties, including potentially losing its nonprofit status. But that does not mean that we cannot have and express our opinions. One thing which is universally acceptable is education about the effects of policy on a community. This is commonly called advocacy. Let me give a concrete example. The recent discussions about the proposed asphalt plant in the near downtown area of Nashua has been much talked about in front of the Planning Board. Advocacy would say something like “the effect of this plant would be harmful to the neighborhood and it’s residents because of increased noise pollution,” for example. Another local example which recently came up is a vape/smoke shop being built downtown in the location of the old Portland Pie. Advocacy might say something like “the proposal for this vape shop could negatively impact the community by being placed in close proximity to a day care / preschool and studies show that proximity to such retail outlets impacts young people negatively.” These two examples are exressions about how something could affect the community and are geared toward educating decision makers (in this case the members of the Planning Board). However, they would not be considered lobbying, which is defined as a deliberate attempt to affect a specific legislative or policy outcome. It is a very fine line but saying “don’t vote for this” or “do vote for that” is lobbying, while saying the effect of voting for this or that would be to have some type of a result is advocacy.

If an organization does go over into the realm of lobbying, then the IRS has rules which kick in to determine if it is acceptable. What is often thought, however, is that lobbying is forbidden, and that is not the case. Specifically, what the IRS rules state is that a nonprofit puts its status in jeopardy if it does too much lobbying, and the IRS uses two published sets of tests for determining this: the substantial part test and / or the expenditure test. Organizations which fail these tests are in jeopardy. How do these tests work? According to the IRS, “under the substantial part test, an organization that conducts excessive lobbying in any taxable year may lose its tax-exempt status, resulting in all its income being subject to tax.” For me, that is a bit vague, which is why I prefer to employ the expenditure test. Again, according to the IRS, “Under the expenditure test, the extent of an organization’s lobbying activity will not jeopardize its tax-exempt status, provided its expenditures, related to such activity, do not normally exceed an amount specified in section 4911.” The IRS goes on to list the actual amount which cannot be exceed in expenditures on lobbying activities, which in our case would be an expenditure of over $275,000. Well, I can tell you that the amount we spend on these activities is no more than a few thousand dollars per year, and that would include all my time plus travel plus volunteer time. Therefore, there really is no risk to participating in the work of influencing the outcomes of policies which we feel would benefit society.

There is one very big caveat to all of this. What a 501(c)3 cannot do, and that is to attempt to influence the outcome of elections. We all have opinions about who should or should not be in elected office, but my strong recommendation is to keep these opinions personal and not to let them have anything to do with your organization. There are different types of nonprofits which may engage in that type of political activity, but for 501(c)3 this is very much forbidden, so don’t go there!

A final word on advocacy and lobbying. We have a committee of volunteers which looks at issues and decides where and when we should weigh in. Over the past few years, we have expressed our opinions about legislation and policies to reduce homelessness, reduce substance use, improve mental health, increase access to school food and menstrual products, support more affordable quality childcare, and keep our community safe and healthy. When our committee deliberates, we always do so through the lens of looking at issues which are central to our mission. There are times when we do not touch specific issues, because they are more personal than central to United Way. But if we feel that an issue is related to our mission and that our opinion will make a difference, we won’t steer clear of getting involved, even if there is controversy around the topic. We are in large part “paid” by our donors to be experts in certain community issues. Of what value would that expertise be, if not brought into the legislative and/or policy arena? At the end of the day, we feel that advocacy is a way for us to ensure that GREAT THINGS continue to happen WHEN WE LIVE UNITED.

Mike Apfelberg is president of United Way of Greater Nashua.

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