7 Questions About New York’s New Disclosure Rules
On June 5, 2013, New York Attorney General Eric Schneiderman announced new regulations that require nonprofit groups, including 501(c)(4) social welfare organizations, to make more extensive and detailed disclosures of their political campaign activities. Some new rules apply to all 501(c)(4)s registered with the Attorney General, while more detailed donor disclosures only apply when an organization has made $10,000 in election-related expenditures (as defined in the regulations).
Alliance for Justice submitted two rounds of comments to Attorney General Schneiderman noting our concern about how these new rules might hamper nonprofit advocacy.
Below is an overview of the new rules. For in-depth discussion of the regulations, read our summary (PDF).
1. What donor information must we disclose?
Answer: Covered organizations must disclose donors who made donations in an aggregate of $1000 or more that are available to be used for a New York election-related expenditure. For each such donor, the organization must disclose:
- Name and address of each donor
- Employer of such donor, if known to the covered organization
- Date and amount of each donation
2. What information is publicly available?
Answer: The Attorney General shall make information contained in the new reporting information (Electioneering Disclosure Schedule) available to the public on the Attorney General’s website, except for:
- Information related to any covered donation received prior to the effective day of this rule
- Information the Attorney General deems exempt from disclosure (harassment provision, see below)
3. Are there situations in which we don’t have to disclose donors?
Answer: Yes, you do not need to disclose a donor who:
- Gives less than $1000
- Prohibits the use of his/her funds for New York election-related expenditures and the funds are donated into an account that cannot be used for making New York election-related expendituresAlso, note that:
- An organization may keep a segregated bank account containing funds used solely for New York election-related expenditures. If it makes all New York election-related expenditures from such accounts, it only needs to disclose donations to such accounts
- Donors or organizations may seek an exemption from disclosure if the covered organization’s primary activities involve areas of public concern that create a reasonable probability that disclosure will cause undue harm, threats, harassment or reprisals to any person or organization
4. Do these new rules apply to 501(c)(3)s?
Answer: No. The regulations specifically exclude 501(c)(3)s from the definition of a covered organization. However, while 501(c)(3)s do not need to disclose their election-related expenditures, they could be reported as a donor to a covered organization under certain circumstances.
5. When do the new regulations take effect?
Answer: Immediately. According to the Department of Law’s Assessment of Public Comments, “The hearings and the extensive comment periods for the proposed rule and revised proposed rule have afforded covered organizations time to prepare for compliance. In addition, few, if any, covered organizations will have to file Schedule EDS prior to November 15, 2013, providing additional months to prepare to comply with the rule.”
6. When are the forms due?
Answer: The Electioneering Disclosure Schedule must be filed by the 15th day of the fifth month after the organization’s accounting period ends. No organization may obtain any extension.
7. Our 501(c)(4) publishes a 501(c)(3)-permissible voter guide that clearly identifies candidates for an upcoming New York State election, but does not suggest for whom people should vote. Does that constitute election targeted issue advocacy?
Answer: Yes. The Attorney General’s office specifically refused to exempt voter guides from the definition of election targeted issue advocacy: “Because of the inherent risk that a voter guide issued in close proximity of an election is a partisan exercise for the purpose of influencing an election, the Department of Law has determined that any benefits of including an exemption for ‘voter guides’ are outweighed by the potential reduction in the benefits that the rule is promoting.” Department of Law’s Assessment of Public Comments.
For additional guidance, including examples of what needs to be disclosed, see Guidance to the Annual Disclosure of Electioneering Activities by Non-501(c)(3) Registrants.