Follow up: Trump has repealed DACA, now what?




“Silence in the face of injustice is complicity with the oppressor.”
– Ginetta Sagar

As I discussed in my last blog post, public charities and private foundations can absolutely engage in executive branch advocacy, and speak out about their frustration and disgust about the DACA repeal. But what else can we do to push back against this harsh and, frankly, un-American action?

To begin with, public charities can lobby. While most advocacy-related activities do not constitute lobbying, if a 501(c)(3) public charity does want to lobby, it can absolutely do so (within certain limits).

Lobbying can be broadly defined as a communication that is intended to influence specific legislation. How much lobbying a public charity can engage in depends on whether the organization operates under the “501(h) expenditure” test or the “insubstantial part” test.

Under the 501(h) expenditure test, lobbying is narrowly defined and broken up into direct lobbying and grassroots lobbying (the definition of lobbying under the insubstantial part test is a bit more vague). Direct lobbying is a communication with a legislator that expresses a view on specific legislation. In contrast, grassroots lobbying is a communication with the general public that expresses a view on specific legislation AND includes a call to action.

So, under the 501(h) expenditure test, a communication to the general public that says, “Support the DREAM Act” would not be considered grassroots lobbying because there is no call to action. However, a communication that said, “Contact your legislator and tell them to support the DREAM Act” would be considered grassroots lobbying.

Additionally, anything that falls outside the 501(h) definition of lobbying would not be considered lobbying. So educating legislators about the issues your organization works on, without expressing a view on specific legislation, would not be considered lobbying.

Private foundations can also help to bring about change. While private foundations incur a tax if they engage in lobbying (which follows the 501(h) expenditure test definition), they can engage in other types of advocacy. This includes educating the public and legislators, engaging in litigation, and funding advocacy activities. They can even fund public charities’ lobbying activities through either general support grants or specific project grants. Furthermore, private foundations can give grants to non-public charities, though such grants are subject to expenditure responsibility requirements.

It’s also helpful to keep in mind that there are lobbying exceptions that apply to both public charities and private foundations. These are four exceptions to the definitions of direct and grassroots lobbying communications. They are:

  1. Nonpartisan analysis, study, or research: a communication that provides a full and fair discussion of an issue and that is broadly disseminated;
  2. Examinations and discussions of broad social, economic, and similar problems: communications that address the public, members of legislative bodies, or governmental employees on general topics which are also the subject of specific legislation, but do not refer to specific legislation or directly encourage the recipients to take action;
  3. Requests for technical advice or assistance: a communication in response to a written request by a legislative body, committee, or subcommittee, where the communication is available to all members of the requesting body; and
  4. Self-defense: a communication with a legislative body regarding possible actions of that body that could affect the organization’s existence, powers, duties, tax- exempt status, or the deductibility of contributions to the organization.

While we strongly encourage that public charities and private foundations be bold in their advocacy, we would be remiss not to remind readers that as 501(c)(3)s, we cannot engage in partisan political activity. This means we cannot support or oppose a candidate for public office. So while we can continue to speak out and hold government officials accountable for their actions, we cannot tie our advocacy activities to a future election or engage in activities with the goal of helping or hurting a candidate or their campaign. We should ensure we’re focusing on official actions, timing the communications to coincide with policy actions, and using nonpartisan criteria to choose what issues we speak out on. So an organization with a track record on immigration advocacy could say, “President Trump, your repeal of DACA is a cowardly act that targets the most vulnerable among our immigrant community.” They should not say, however, “President Trump, your repeal of DACA is a cowardly act that targets the most vulnerable among our immigrant community, and we’ll remember this in 2020.”

There are a lot of ways that nonprofits, both public charities and private foundations, can advocate to ensure that repealing DACA won’t have any lasting impact. And we all absolutely should. This is an unnecessary and needlessly cruel act that serves only to hurt those who were brought to the United States as children. Dreamers are part of this country in every way that matters. There are Dreamers who are excelling in school, Dreamers who are helping to rebuild Houston after Hurricane Harvey, Dreamers who are working for nonprofits, and Dreamers who are serving this country in the military. Dreamers are American in every way but lack a piece of paper to prove it. We know advocacy works. Now is the time to be bold and act.