Ballot Measure Advocacy for Public Charities: Key Laws and Activities to Consider in 2025 and Beyond - Alliance for Justice

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Ballot Measure Advocacy for Public Charities: Key Laws and Activities to Consider in 2025 and Beyond

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Melissa Marichal Zayas

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Ballot Measures

Ballot measures — including initiatives, propositions, amendments, and referenda — were an important feature of the November 2024 election landscape. Given this recent spotlight on ballot measures and their likely importance in future elections, you may be wondering if 501(c)(3) public charities can engage in ballot measure advocacy.

The short answer is yes, they can! In fact, there are many ways public charities can get involved, from a measure’s initial development to its implementation. Several of these activities can begin long before an election, and others may take place after voters approve a measure. But participating in this form of advocacy requires public charities to work within their lobbying limits, steer clear of supporting or opposing candidates, and comply with applicable state and local campaign finance laws. In this blog post, we outline how these laws apply to a public charity’s ballot measure advocacy and offer examples of potential ballot measure activities. It’s never too early to get familiar with the ballot measure advocacy rules and start planning how your organization will get involved in 2025 and beyond.

What Key Laws Should Public Charities Consider When Planning for Ballot Measure Advocacy?  

Federal Tax Law

Lobbying Limits 

Although advocacy for or against a ballot measure is an electoral activity, federal tax law considers it lobbying. Because the public acts like a legislative body when voting on ballot measures, activities to influence the public’s votes on ballot measures are treated the same way as activities to influence legislators’ votes on bills. This means a public charity must track its ballot measure advocacy and count it against its lobbying limit under federal tax law, just like other types of lobbying.

A public charity’s exact lobbying limit depends on whether the charity uses the default insubstantial part test or the elective 501(h) expenditure test to measure its lobbying. Because each test includes different definitions of lobbying, the specific types of ballot measure advocacy that count as lobbying for purposes of this federal tax limit will depend on which test the public charity uses. For more information about these two tests and examples of how they apply to ballot measure advocacy, check out our factsheet, Ballot Measures and Public Charities: Yes, You Can Influence That Vote.

Prohibition on Support or Opposition for Candidates for Public Office

Supporting or opposing a ballot measure, on its own, does not violate the requirement that 501(c)(3) organizations remain nonpartisan. This is because ballot measure elections involve the enactment of legislation, not the selection of a candidate for public office. However, public charities must ensure that their ballot measure activities and communications do not express or imply support or opposition for any candidates or political parties. For example, a public charity should not ask a candidate to endorse a ballot measure or use partisan factors to target their voter outreach.

State and Local Election and Campaign Finance Laws 

State — and, in some cases, local — campaign finance law may require a public charity to register with an administrative agency and file disclosure reports if they engage in certain ballot measure activities. Often, these requirements are triggered if an organization’s expenditures or cash and in-kind contributions in support of, or in opposition to, a ballot measure exceed a specific amount. Some ballot measure communications, such as paid advertisements and mailings, may also require disclaimers. The specific activities and thresholds that may trigger registration, reporting, or disclaimers vary by jurisdiction.

Public charities that plan to engage in ballot measure advocacy should understand the jurisdiction’s reporting, registration, and disclaimer requirements beforehand. As a starting point, you can contact the agency that enforces the campaign finance laws of your state or locality to learn more. This factsheet, published by AFJ Action, lists the campaign finance agency of every state and the District of Columbia. Depending on the complexity of your ballot measure activities, you may also want to seek legal counsel.

What Types of Ballot Measure Activities Can Public Charities Consider?  

There are activities throughout the ballot measure process that can help a public charity make positive change in support of its mission. The list below offers examples of these types of activities.

As you review this list, keep in mind that some of these activities may count as lobbying under federal tax law, and others may not. It’s also important to remember that each state has its own unique ballot measure procedures. For example, only 26 states permit citizen-initiated ballot measures. On the other hand, all 50 states permit legislatively referred ballot measures, which appear on the ballot as a result of a vote of a state or local legislative body, rather than a citizen petition. Therefore, certain activities may be available in some states but not others.

Activities Before a Measure Qualifies for the Ballot 

  • Engage community members and partner organizations.
  • Draft ballot measure language.
  • Form an affiliated 501(c)(4) social welfare organization to harness this type of organization’s unlimited lobbying capacity.
  • Build a coalition with other public charities and non-public charities. Public charities can form coalitions with non-public charities (e.g. 501(c)(4) social welfare organizations and 501(c)(5) unions) as long as the coalition’s activity remains nonpartisan.
  • Develop a public education campaign about the topic covered by a proposed measure.
  • Encourage state legislators to vote to refer a constitutional amendment to the ballot, or to oppose such an amendment.
  • Gather signatures to qualify a citizen-initiated measure for the ballot.

Activities After a Measure Has Qualified for the Ballot 

  • Publicize your organization’s endorsement of or opposition to a ballot measure.
  • Make contributions or loans to a ballot measure committee.
  • Host a debate or forum about the ballot measure.
  • Conduct a voter registration or get-out-the vote campaign.

Activities After Voters Have Approved a Measure 

  • Engage in administrative advocacy about regulations and other activity to implement and enforce the measure.
  • Evaluate a ballot measure’s impact. Findings from impact studies can support effective implementation and help other communities considering similar ballot measures.
  • Participate in litigation to enforce or defend a measure.

 

What Steps Can Public Charities Take to Learn More? 

Bolder Advocacy is here to help!