Does taking a stand on executive actions qualify as lobbying under federal tax law?
It’s February 6, 2017, just over two weeks into Donald Trump’s Presidency, and already the new President has signed 20 executive actions. These actions include executive orders and executive memoranda, and they cover topics ranging from immigration to the reorganization of the National Security Council. With rumors of additional actions coming down the pipes, many nonprofits are left wondering whether their efforts to combat or support these actions qualify as lobbying and could affect their lobbying limits.
The answer is no. Federal tax law imposes limits on the ability of public charities and private foundations to lobby, but lobbying is narrowly defined and requires a communication about legislation. Executive branch actions that do not require the vote of a legislative body, are not deemed to be legislation. As such, public charities, and even private foundations, can engage in executive advocacy and speak out about executive orders that affect their constituents, without having to count those activities and expenses as lobbying. They may, however, need to disclose those activities under the Lobbying Disclosure Act, state law, or local law.
In addition, 501(c)(3)s must always be cautious about the rules prohibiting them from supporting or opposing candidates and should focus on addressing actions that are germane to their mission and charitable purpose.
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