Power to the People: Harnessing Mass Movements Through Grassroots Lobbying

This summer, Americans are repeatedly witnessing, via judicial rulings and legislative inaction, our government institutions’ failure to reflect the will of the people. National polls show broad support for abortion rights, yet on June 24, 2022, five Supreme Court Justices voted to overturn Roe v. Wade, which guaranteed abortion rights nationwide. The Supreme Court also ruled on June 30 that the Environmental Protection Agency had limited authority to regulate and enforce the Clean Air Act, despite the fact that the majority of voters agree that climate change is an emergency and 67 percent of voters say more needs to be done. These regressive decisions add insult to injury as gun violence injures and claims the lives of innocent people, despite 97 percent of Americans supporting expanded background checks. Yet Congress has failed to enact sensible gun control, codify Roe v. Wade, or take the necessary measures to stop climate catastrophe.  

Instead, a dangerous but effective combination of minority activist judges and lawmakers unable or unwilling to act weakens our democracy. At this juncture, however, nonprofits can play a key role in mobilizing and organizing the will of the people to protect our rights and demand to be heard. 

Public Charities Can Urge Members of the Public to Influence Legislation 

501(c)(3) public charities can advocate for or against new laws or proposed ballot measures within their lobbying limits.  

Direct Lobbying vs. Grassroots Lobbying 

When we think of lobbying activities, the most common example is direct communication with a legislator to influence specific legislation.  

For public charities that have made the 501(h) election, the federal tax code refers to this type of lobbying as direct lobbying.  

But the IRS also considers nonprofits urging the public to influence legislation to be lobbying as well. Grassroots lobbying, under the 501(h) election, is a communication with the public that included a call to action—i.e., asking the public to contact their legislators, adding legislator’s contact information or a mechanism to contact them via petition or call script, or identifying government officials that are against or undecided on the legislation. An electing public charity may spend up to a quarter of its overall lobbying limit on grassroots lobbying.  

Urging and organizing the public to influence legislation can be a deeply effective tool for ensuring lawmakers adhere to the will of the public long after a campaign promise or election day. Nonprofits, therefore, should revisit whether they are maximizing their grassroots lobbying efforts to advance systemic change. 

The history of grassroots lobbying sheds light on its effectiveness 

Notably, Congress has a history of disfavoring nonprofits that mobilize the public to pressure lawmakers into legislative change. This plays out in IRS regulations, where grassroots lobbying is more limited than direct lobbying (i.e., when nonprofits communicate with lawmakers directly). 

 In 1967, Congress passed a bill that allows public charities to make the 501(h) election to calculate their lobbying limits and take advantage of narrow definitions for direct and grassroots lobbying. This new law was a victory for public charity advocacy, resulting in clearer guidelines and increasing the potential for public charities to lobby by providing a generous, dollar-based lobbying limit. 

In enacting this law, however, Congress made clear that it feared charities lobbying the public and encouraging them to actively communicate with their legislators (aka grassroots lobbying). Rather than prohibiting the activity outright, the bill represented “a compromise on a compromise on a compromise on a compromise” which resulted in a limit on grassroots lobbying to 25% of the overall lobbying limit. Jill S. Manny, Nonprofit Legislative Speech: Aligning Policy, Law, and Reality, 62 Case W. Rsrv. L. Rev. 757, 777 (2012).   

The sparse legislative records reveal arguments against grassroots lobbying that presuppose its danger. For example, one of the main arguments for restricting public charities’ member communications was “for fear of grassroots lobbying.” The record states: 

“[T]he danger of not so limiting these activities is that a ‘membership list’ can easily become simply an enormous mailing list, or that letters or flyers sent to the ‘members’ becomes only a thinly disguised effort at grassroots lobbying.” Pepper, Hamilton & Sheetz, Legislative Activities of Charitable Organizations Other Than Private Foundations, with Addendum on Legislative Activities of Private Foundations, 5 Research Papers Sponsored By The Commission on Private Philanthropy and Public Needs, 2917, 2924 (1977). 

In an argument against the 501(h) bill altogether, the summary of the record provides: 

“Although there are areas in which lobbying can be quite helpful to governmental officials, it should not be allowed to ‘run wild’ particularly it should not be subsidized, either directly or indirectly. Lobbyists have their own special axes to grind, and necessarily take a tremendous amount of time out of the busy days of governmental official and their key assistants.” Id. at 2923.  

Another vague fear of lobbying altogether was that charities might create a “gigantic ‘slush fund’” for that purpose. Id. at 2924.  

The resulting compromise restricted grassroots lobbying to a quarter of nonprofits’ overall lobbying budget. But this compromise and the legislative record raises a revealing question:  

Why would Congress fear the collective advocacy power of the public so much that they would fight to limit (or as some preferred, forbid altogether) nonprofits’ ability to harness it?  

The legislative record hints at fears that grassroots lobbying would be overly burdensome on lawmakers. In other words, hearing from too many people at once was the fear itself.

To that, nonprofits should say: So what?   

Nonprofits: Get out there and maximize your grassroots lobbying potential. 

Nonprofits have a right and responsibility to organize the public to act. Here are just a few ways to engage with grassroots advocacy so lawmakers cannot ignore the demands of the public: 

• Plan to use up to 25% of your overall lobbying limit on engaging with the public and urging them to act. Despite the limit on grassroots lobbying, social media is an affordable way for public charities to communicate with members of the public. 
• Make it easier for the public to join your nonprofit in its lobbying by providing resources such as call scripts, legislative contact information, and/or petitions that will be sent directly to the legislator.  
• Advocate to eliminate the 25% limit on grassroots lobbying for electing public charities. 
• Work in coalition with 501(c)(4)s or form an affiliated 501(c)(4), which can lobby without limit.  
• Move activism offline by organizing an advocacy day and invite volunteers from the public to join your organization in contacting lawmakers. 
• Organize a rally or protest to build community. 
• Protect the right to protest by lobbying against the increasing wave of anti-protest legislation.  

Nonprofits can and should play a key role in grassroots mobilization. Harnessing the will of the people to pressure and hold elected officials accountable is an effective tool for change. It is so effective, that Congress worked hard to prohibit and limit it. Indeed, it may be one of the most effective tools we have, if done with focus and consistency.