Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Election season brings out the advocacy issues for nonprofits

- Some churches are about to get in a heap of trouble…
Alliance Defense Fund is trying to take on the IRS and the tax prohibition on electioneering.
It’s probably going to cost some churches, but more importantly the hubris will impact the church goers
The First Amedment is alive and well, but it doesn’t simultaneously create the right to tax deductibility of donations. That’s a privilege.

- Campaign finance laws were thankfully overturned, and here’s why…
In 2000, Congress passed McCain-Feingold, or BCRA – it contained a well-intentioned but overbroad provision that essentially banned any broadcast advertisement that mentioned anyone running for federal office within 60 days of the November elections.
The Supreme Court overturned it because it banned all ads in those windows, including ones that are purely within free speech categories – like lobbying
When I lobbied supporters and authors of this law, I was constantly asked what kind of things could possibly come up within 60 days of an election that nonprofits and other corporations would want to weigh in on?
Well… we all just experienced it – the rescue bill was firmly within the 60 day window and without the wisdom of the Court (a phrase I do not often use) an election law would have stopped organizations from weighing in on the bill via broadcast ads.
Even supporters of BCRA were uncomfortable on this point…

Resources

Election Law Blog on the BCRA 60 day windows
Action Urged Against Politicking Pastors – The Chronicle of Philanthropy

Closing
Email me with questions and suggested topics
Sign up for the free NLP newsletter… every week get an early look at the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.
Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

More clarity, not less

From BNA:

‘Inferential’ Intervention Trend

[Marcus Owen's] firm has seen the emergence of differing interpretations of the facts-and-circumstances standard that IRS applies to all political activity referrals, he said. Some offices have a more
liberal interpretation where only allegations of explicit statements of campaign intervention lead to investigations, while other offices are more willing to look at allegations of implicit or indirect
campaign intervention, he said.

What he called a determination of “inferential” intervention is also emerging from IRS. This he described as “inferences derived from discussions of candidate’s positions on an issue … but somewhere else in the organization, another Web site or something off a Web site could carry with it a flavor of the organization’s position on the same issue, and IRS could conflate those two and come to the conclusion that there was inferential intervention.”

Closing
Email me with questions and suggested topics
Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.
Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

My Top 6 Resources
This week is all “resource time” here on the podcast – my top 6 resources – 3 sites in two categories

Operational information – excellent resources for how to get things done right
Guidestar
CraigsList Foundation
BoardSource

Infrastructure organizations – operational guidance plus representation of your interests
Alliance for Justice – Nonprofit Advocacy Project and Foundation Advocacy Initiative
National Council of Nonprofit Associations (NCNA) and your state nonprofit association
Independent Sector

Closing
Email me with questions and suggested topics
Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.
Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law

Download: Nonprofit Law Podcast #30 (mp3, 7:18)

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

News & Notes
- What’s the IRS up to this year? According to its 2008 guidelines (PDF), the IRS is going to be focusing on (1) the redesign of Form 990, and (2) efforts to reign in abusive donation transactions particularly over-valuation of non-cash contributions. More at Guidestar.org.
- Nonprofits and Elections: Balancing Personal Versus Organizational Activity on-demand video screencast is available now as special preview for newsletter subscribers and will be available February 10th for the rest of the listenership. More on newsletter signup at the end of the show.

Can a candidate use our space?

- 501(c)(4)s, etc.
- Yes, and you can limit it in a partisan way
- If limited in a partisan manner, this will count toward your limits on partisan activity under tax law
- Use must be incidental (about an hour per week or 4 hours per month) or it might be considered a contribution unless candidate reimburses (federal candidates – state law varies widely)
- 501(c)(3)s
- Must be strictly nonpartisan (nonpartisan debates, etc.) OR
- The use is part of a community offering (church rec room or community room) that is regularly made available for noncommercial purposes, without regard to political affiliation
- You can charge fees

Resources
FEC: Citizens’ Guide
IRS: CPE Guide, Election Year Issues (PDF – p383)

Closing
Email me with questions and suggested topics
Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.
Need more than the podcast? Tim-Mooney.com and Beyond the Podcast at nplawcast.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

News & Notes
We’re going on holiday schedule into the new year… we’ll have new editions every other week. Happy new year!
Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.

Beyond the Podcast
- Nonprofits are generally underserved in how they approach the regulations and laws because there’s a dearth of services out there that are reasonable for nonprofit budgets
- I’ve been very happy with the response to the show… but it’s always a bit frustrating to see the gap between what people can get between a 10 minute show and hiring a lawyer
- So, let’s fill that gap and go “Beyond the Podcast”
- The Nonprofit Law Podcast will always remain a free resource for nonprofit staff, officers and professionals. Beyond the Podcast will feature options for those who want to go “beyond the podcast” to dig into some of the topics in greater detail. It will stay low-cost – we want to make these easy for even the smallest community nonprofit to afford.
- We’ll be launching this on January 7, 2008… but if you are a newsletter subscriber you get an early shot at our first production – Nonprofits and New Media: Legal Rules for using the Internet, Podcasts and Social Networks

Nonprofits and New Media DVD
- Remember all the way back in #6 when this was announced?
- Evolved from an audioguide to a screencast… to a DVD
- 90 minutes of training
- Join Tim Mooney, a nonprofit attorney with over a decade of experience, for an overview of the laws impacting the use of new media by nonprofits. What does tax law have to say about your organization’s podcast and MySpace page? Are there federal election law implications to your get-out-the-vote efforts to your membership listserve? What kind of copyright issues does your nonprofit face when it uses other people’s photos on its blog? All of these questions, and more, on the first in NLP’s Beyond the Podcast series.
- Sign up for the NLP newsletter now and get this early plus get a $10 discount – nplawcast.com/newsletter
- Otherwise, keep your eyes peeled to nplawcast.com

Closing

Email me with questions and suggested topics
Need more than the podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

News & Notes
We’re going on holiday schedule through the end of the year… we’ll have new editions every other week through the end of the year. Happy holidays!
Sign up for the free NLP newsletter… every week get the shownotes and resources sent to you by email, plus get additional free content on the laws impacting nonprofits. Go to nplawcast.com/newsletter for more info and to sign up.

What should we be doing at the end of a fiscal year?
Listener question…
It’s big enough of a task to be mentioned alone: recordkeeping.
It’s the law
It’s a good management tool
It can protect you against false accusations by others that would like to make your organization’s existence more difficult

Corporate record book

Make one if you don’t have it… a binder with all of your important docs
IRS determination letter, articles of Incorporation, bylaws, and minutes of board meetings
This should be permanently kept and updated when necessary
Remember some of these documents must be made publicly available, so this is an important one

Lobbying and other reporting information

Keep track of hours of lobbying as a 501(c)(3)
Keep track of amount of partisan activity as a 501(c)(4)
You’ll need this for your 990 in the spring

Financial records

Bank statements, old Form 990s, internal reports by treasurers, etc.
Keep these for at least seven years (law requires 3 for some, like the 990s)

Make sure you are keeping up with donor receipts for end of the year appeals!

Resources
NYS Office of Children & Family Services: Importance of Record Keeping
Email me with questions and suggested topics
Screencast on using the Internet, podcasting and social networking for your nonprofit – go to nplawcast.com for details
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

Voter registration -registering people to vote
GOTV – getting people to the polls, or otherwise aiding them to vote

501(c)(3)s
Purely nonpartisan
One permissible goal – getting people to exercise their right to vote
Permissible to target activities if based on nonpartisan criteria like location and audience
May not target based upon the way a group votes
May target if a disadvantaged or underrepresented group or targeted group has common interest
Do discuss a broad range of issues
Don’t suggest a correct position
Vote green. Register here. – NO
You can have an impact on the decisions affecting your life. Register to vote now. – YES
Let’s get out the pro-choice vote. Register here. – NO

Other 501(c)s
Partisan “slant” ok, but it would then count towards secondary activity, so watch amount

527s
Partisan “slant” ok

Resources

AFJ’s Rules of the Game

Closing

Email me with questions and suggested topics
AP audio & handbook on using the Internet, podcasting and social networking for your nonprofit – go to nplawcast.com for details
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

Ballot Measures
Also, referenda, ballot questions, bond measures, state questions, etc.
Legislation that is considered by voters
Work for or against is considered a hybrid… lobbying by tax law, election activity by state election law

501(c)(3)s
Limited capacity to work on ballot measures
Reporting requirements and registration usually required under state laws

Other organizations?
Lobbying not an issue under tax law
Reporting requirements and registration usually required under state laws

Resources

AFJ’s Rules of the Game
AFJ’s Seize the Initiative

Closing

Email me with questions and suggested topics
AP audio & handbook on using the Internet, podcasting and social networking for your nonprofit – go to nplawcast.com for details
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

501(c)(3)s can rent their mailing lists to candidates!?
A 501(c)(3) may rent mailing lists to political candidates
Must make the list available to all candidates
IRS is likely to look less favorably on such list rentals if the 501(c)(3) does not make such lists available to the public on a regular basis on the same terms that the lists are made available to candidates
Best practices – use a list broker

Other organizations?
Less of an issue since they can support or oppose candidates
Watch out for contribution prohibitions

Resources

AFJ’s Rules of the Game
IRS Fact Sheet 2006-17

Closing

Email me with questions and suggested topics
Audio guide on using the Internet, podcasting and social networking for your nonprofit coming soon- go to nplawcast.com for details
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

Debates & forums

Debate – multiple candidates on “stage” at same time
Forum – one at a time appearance

501(c)(3)s
Purely nonpartisan
Broad range of issues
Unbiased questions
Invite all viable candidates
Apply the rules fairly
Impartial moderator
Unbiased audience
Forums – no contextual favoritism
Special issue – inviting candidate for non-candidate reason (award, etc.) ok so long as it is not timed to coincide with the election

Other 501(c)s
Partisan “slant” ok, but it would then count towards secondary activity, so watch amount

527s
Forums and rallies typical

Resources

AFJ’s Rules of the Game

Closing

Email me with questions and suggested topics
Audio guide on using the Internet, podcasting and social networking for your nonprofit coming later this week – go to nplawcast.com for details.
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

Voter guides

501(c)(3)s
Purely nonpartisan
IRS safe harbor… reprint candidate questionnaire
No pledges
Broad range of issues
IRS: Too easy to make any candidate look good or bad when focusing on a single issue
Position on one issue should not suggest position on another
Several issues: four? five? more?
Distribute to all
Unbiased questions
No editing

Other 501(c)s
Partisan “slant” ok, but it would then count towards secondary activity, so watch amount

527s
Generally comparing and contrasting issue differences before a targeted distribution (i.e. NRA PAC comparing gun positions to NRA members)

Resources

AFJ’s Rules of the Game

Closing

Email me with questions and suggested topics
Audio guide to using the Internet, podcasting and social networking for your nonprofit – go to nplawcast.com for details next week
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Month long series on election activity

Focuses on public charities, other 501(c)s and 527s
Covering voter guides, debates & forums, renting mailing lists, ballot measures, and voter registration/GOTV
Why now? Many nonprofits are already planning 2008 and some are already engaged in it
Don’t do any of these things? Still important to know in case something unexpected comes up

The basics

501(c)(3)s
Absolute prohibition on supporting or opposing candidates for public office
Nonpartisan work allowed (education, voter registration, GOTV, etc.)
Ballot measure work ok (lobbying) but follow state laws

Other 501(c)s
Secondary activity
Follow election laws (many prohibit express advocacy, almost all prohibit contributions)
Ballot measure work ok (lobbying) but follow state laws

527s
Organized to impact elections
Reporting requirements on state and federal level vary
Some register as political committees/PACs, others don’t and are limited in what they can do (but this reduces reporting and accountability)

Resources

AFJ’s Rules of the Game

Closing

Email me with questions and suggested topics
AP audio & handbook on using the Internet, podcasting and social networking for your nonprofit coming soon
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

When is a person acting on their own versus acting on behalf of their organization?

- Joining a nonprofit as a director or a staff member doesn’t take away your individual rights
- Individuals can do things that are otherwise forbidden… donate time/money to campaign, etc.
- General rule – so long as an organization’s financial resources, facilities, or staff are not used, the organization is not going to be beholden to the individual acts of its staff, officers or directors

When do the actions become attributed to an organization?

- Principles of agency are used… if the person acts as if they have power, and they actually do have the power, the IRS will usually consider the action that of the organization
- Actions of individuals that weren’t ok’d by the group, but were later “implicitly ratified.” (i.e. Organization found out about the actions and did not disavow them)

Tips & Best practices

- Have a policy in place on use of organizational resources
- Encourage use of disclaimers for individuals working on non-organizational endeavors (i.e. “organization shown for identification purposes only”)

Resources

Election Year Issues (pp. 363-365) – IRS CPE Text
Election Year Activities for Section 501(c)(3) Organizations: Frequently Asked Questions – McDermott Will & Emery
Closing

Email me with questions and suggested topics
AP audio & handbook on using the Internet, podcasting and social networking for your nonprofit coming later this summer
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.

Shownotes

Intro

Tim Mooney… Welcome to the Nonprofit Law Podcast
Your guide to the laws impacting nonprofits.
Shownotes…. nplawcast.com
Email the show

Voter scorecards
Now that many states have finished their legislative sessions, some nonprofits publish the results of votes on bills
There are some rules to follow, especially if your nonprofit is a publich charity 501(c)(3)
IRS treats this activity as potential election activity, so tread carefully
If your charity is a 501(c)(4) or a labor union, or trade association, these rules don’t apply… you’re largely free to publish in any way

Voter scorecards to the public
Just the facts… all vanilla
No editorializing allowed
Broad range of issues

Voter scorecards to members
Members are donors and people who have volunteered more than a nominal amount of time to the organization
Editorializing is allowed
Narrow range of issues important to the organization

Final note
These are the safe harbors… if you deviate from them as a 501(c)(3) you’re in the murky “facts and circumstances” area

Resources

Minnesota Council of Nonprofits Voter Education Toolbox (pdf)

Closing

Email me with questions and suggested topics
AP audio & handbook on using the Internet, podcasting and social networking for your nonprofit coming later this summer
Need more than a podcast? Tim-Mooney.com
nplawcast.com

This podcast provides general information about legal topics but it is not a complete discussion of all legal issues that arise in relation to nonprofits nor is it a substitute for legal advice. This podcast does not create an attorney-client relationship. This is general legal information and the contributors make no warranties regarding the general legal information provided in this podcast , and disclaim liability for damages resulting from its use to the fullest extent permitted by the applicable law.