Lobbying is an attempt to influence specific legislation. Legislation is an action by a "legislative body," which may be Congress, a state legislature, or a local legislative body such as a city council. Legislation also includes actions by the general public through a referendum, initiative or proposed constitutional amendment.
Significantly, a "legislative body" does not include judicial, executive or administrative bodies, such as zoning and school boards. In other words, attempts to influence your local housing agency (an executive body) or your mayor (an executive) would not constitute lobbying (unless you ask an executive to engage in the legislative process, such as vetoing a bill).
Also significantly, to constitute "lobbying," you must either support or oppose legislation. In other words, making a general argument that government has a role in supporting low-income people, or that the growth in inequality should be halted, is not considered lobbying.
Under the rules, there are two types of lobbying -- direct and grassroots. The limits on grassroots lobbying are much more stringent.
DIRECT LOBBYING is communicating your views to a legislator or a staff member or any other government employee who may help develop the legislation. To be lobbying, you must communicate a view on a "specific legislative proposal." Even if there is no bill, you would be engaged in lobbying if you asked a legislator to take an action that would require legislation, such as funding an agency.
If you asked your members to lobby for this bill, that also is considered direct -- not grassroots -- lobbying. People are considered members if they contribute more than a nominal amount of time or money. If a newsletter article that goes to both members and nonmembers urges them to take action, the amount you would need to allocate to grassroots lobbying would be only the percentage of non-members who received your newsletter.
However, if you simply tell people about a specific piece of legislation and your position on it, and you don't encourage them to contact their legislators, that is not counted as lobbying.
Direct lobbying also involves trying to influence the public on referenda and ballot initiatives. (In these cases, the public are, in essence, the legislators.)
GRASSROOTS LOBBYING is trying to influence the public to express a particular view to their legislators about a specific legislative proposal. A communication is considered lobbying (a "grassroots call to action") if it states that the reader should contact a legislator, or if it provides the legislator's address and/or telephone number, or provides a post card or petition that the person can use.
It is also considered a lobbying communication if you simply identify legislators who are opposed to or undecided about your view of the legislation, or identify that person's legislators, or state who is on the committee that will vote on the legislation. (This is called "indirect encouragement.") Simply identifying a bill's sponsor (referring to the "Istook amendment," for example) is not considered indirect encouragement.
Special rules apply to paid mass media advertisements. These rules are complex. If you want to place an ad, read Being a Player and/or contact a legal expert.
If your organization is heavily involved in trying to influence public policy -- or you put out a lot of reports, studies, speeches and the like -- you need to know what does not constitute lobbying. Sometimes you can make relatively small changes to a document that will ensure that it will not be considered lobbying. One exception is for "nonpartisan analysis, study or research." The keys are a document's content and the way it is distributed.
To qualify as nonpartisan, an analysis must explain the underlying facts in fair enough way that the audience could form an independent opinion or conclusion. It cannot directly encourage people to act. Also, it must be distributed fairly widely, to at least some segment of the general public, to governmental bodies or to members of Congress (as long as you don't give it only to people interested in one side of the issue).
An analysis can take a point of view about legislation and still qualify as nonpartisan as long as it meets the above criteria. But there is one exception to this exception! If "nonpartisan" materials that reflect a view on specific legislation are later used (within six months) in a grassroots lobbying effort, the cost of preparing these materials may be counted as a lobbying expense. They won't be if you can demonstrate that the primary purpose of the materials was not lobbying. (Being a Player discusses this "quite limited" situation in depth.)
A second very relevant exception is for "examinations and discussions of broad social, economic and similar problems." To qualify, such discussions could not refer to specific legislation or directly encourage people to take action. In other words, you could deliver a speech about the severe lack of affordable housing as long as you didn't talk about an appropriations bill that might cut housing programs, or ask your audience to contact Congress about the issue.
You can also talk all you want about the need for more social programs or better paying jobs or more city services, as long as you don't refer to a specific legislative proposal or tell people to contact their legislators.
The third exception, perhaps the best known, is for testimony or other advice or assistance given in response to a written request from a legislative body (not simply an individual legislator). If you are asked to testify or comment on a law, get the request in writing.
The final exception is for "self-defense." It applies to communications with a legislative body regarding actions that could affect your organization's existence, powers, duties, tax-exempt status or the deductibility of contributions. A good example is the fight over the restrictions proposed for nonprofits that receive federal grants. This exception does not apply to grassroots efforts to defend yourself: If you ask the general public to come to your rescue, that is considered lobbying.
Special rules apply in situations where you are affiliated with another organization or make a "transfer" to an organization that is not a charity. But the definition of "affiliated" is narrow: one organization must be able to control the other's action on legislative issues through interlocking directors or bylaws. Working with other organizations in a coalition would not trigger these rules.
Keeping track of your lobbying
Perhaps the greatest danger to community organizations that lobby is not that they will exceed the limits, but that they won't maintain adequate records. You must keep records of your lobbying whether you elect to come under the new lobbying rules or not.
Your bookkeeping system should include line items for total lobbying expenses as well as grassroots expenses. You also need to be able to figure your total "exempt purpose expenditures." Given that a big lobbying expense is the time of your staff, time sheets need to include lines for both direct and grassroots lobbying. You also need to be able to keep track of lobbying costs as they are incurred by maintaining a "log" for various expenses such as postage, copying and faxing. Employees then record expenses on the log, indicating which ones involved lobbying.
Obviously not every employee is going to be an expert on what constitutes lobbying, so Being a Player strongly suggests that all organizations appoint one person to become the authority on the lobbying rules. "This lobbying monitor should act as a clearinghouse for all projects which may include ... either grassroots or direct lobbying activities," write the authors.
They add that this "monitor" should also maintain copies of all written lobbying communications stay on top of your record-keeping. It will be a lot easier to do it now than two years from now when you receive an audit notice from the IRS.
One important task for a "lobbying monitor" is to learn the complex rules regarding how expenses for things such as newsletters, "action alerts" and direct mail letters should be allocated.
The first allocation question concerns lobbying vs. non-lobbying expenses (such as a letter that urges members to give you money as well as call their legislator).
The second question concerns direct vs. grassroots lobbying (such as an action alert that urges members both to call their legislators and ask their neighbors to call).
While these allocation rules are complex, don't be tempted to throw up your hands in despair and call off lobbying. Many organizations do so little lobbying over the course of an entire year that they could allocate every penny of a particular letter or alert to lobbying -- even grassroots lobbying -- and still fall far short of the limits.
The allocation rules are critical only if you do a lot of lobbying, especially lobbying through written communications, such as widely distributed reports, newsletters, "alerts," and direct mail letters.
In general, if you do a mailing that goes entirely or primarily to your members, you can make a "reasonable" allocation of costs between nonlobbying and lobbying purpose (a nonlobbying purpose can include public education, fundraising or trying to influence an administrative agency).
The Alliance for Justice has excellent resources for nonprofits on this topic.