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Exceptions to the IRS Definition of Lobbying
IRS regulations exempt some legislative activities from the definition of lobbying. Here are examples of what 501(c)(3) organizations can do to an unlimited degree.
1. WRITTEN REQUESTS FOR TECHNICAL ASSISTANCE FROM LEGISLATIVE BODIES
Basic Requirements
- Written request from a legislative "body". This includes committees, subcommittees, official task forces or leadership such as Speaker or Whip. A request from individual legislator will not meet this requirement. But you can ask a friendly legislator to ask a committee chair or floor leader to sign a letter.
- Made your response available to every member of the legislative body that requests it. To avoid making lots of copies, you can submit your response to the person who made the request with a statement that the response is for the use of all members of the legislative body that made the request.
Scope of the Request
Written requests from legislative bodies can be narrow or broad, but your response must be within the scope of the request. For that reason, you can seek the broadest possible scope of activities in the request. The request can ask for:
- Information and/or data requests.
- Your opinion or recommendations on a specific bill.
- Your opinion or recommendations on a topic or policy proposal.
- An analysis of the impact of legislative proposals on a constituency
- Draft language for bills or amendment
- Testimony before a legislative body.
Source: IRS Reg. 56.4911-2(c)(3) and Reg. 53.4945-2(d)(2).
2. NONPARTISAN ANALYSIS, STUDY OR RESEARCH
Basic Requirements
- To be nonpartisan your study must be a full and fair examination of facts and issues so that a reader can form their own opinion. The arguments of opponents should be cited and can be refuted. Explain the pros and cons of your position and show how the pros outweigh the cons. You CAN come to a conclusion AND refer to specific legislation.
(Note...You do not have to be impartial about the issues.)
- Fact sheets generally too cursory to meet requirements of this exception.
- The study must be distributed broadly, not just to friendly legislators or a select list of allies. Distribution may not be limited to or directed solely to persons only interested in one side of an issue. It can be oral or written, with or without charge. You can use reprints of speeches, articles and reports, presentations at conferences, meetings or news releases.
Costs Excluded From Lobbying Budget:
- Cost of producing study
- Printing
- Distribution.
Subsequent Use in Lobbying
- If used for direct lobbying the original costs of the study do not count toward the lobbying budget, but the costs of use in direct lobbying do count (attachment of study to direct lobbying material does not bring it within the exception).
- If used for grassroots lobbying purposes all original costs of the study count as a grassroots lobbying expense ONLY IF it refers to specific legislation AND the expenses are paid within 6 months of the grassroots lobbying use or the primary purpose of the study was for grassroots lobbying use. (Note...A primary non-lobbying purpose presumed by the IRS if a substantial non-lobbying distribution is made prior to or at same time as the grassroots lobbying use.)
- Subsequent use by another organization: if subsequent distribution made by unrelated org clear and convincing evidence required to establish lobbying purpose (i.e. collusion, cooperation).
Source: IRS Reg. 56.4911-2(c)(1)
3. SELF DEFENSE COMMUNICATIONS
Basic Requirements
- If the communications with legislators are about possible action that could affect the organization's existence, powers or duties the expenses do not count as lobbying.
- This exception does not apply to grassroots lobbying.
- The issue can be defensive or proactive.
Source: IRS Reg. 56.4911-2(c)(4).
4. BROAD DISCUSSION OF ISSUES THAT DO NOT ADDRESS SPECIFIC LEGISLATION
Basic Requirements
- General discussion of broad social, economic and similar problems
- No direct references to legislation.
Source: IRS Reg.. 56.4911-2(c)(2).