Social Media and 501(c)3 Advocacy Rules

So it has been established that I’m kind of militant about getting nonprofit 501(c)3 organizations to do advocacy, right? I’ve spent a lot of time talking with nonprofit leaders about the IRS rules around advocacy limits, their considerable options within those rules, and resources to help them navigate them. And, more recently, I’ve been talking with a lot of nonprofits about social media and its potential for their social change work.

Which has got me thinking about all of the unanswered questions regarding social media and nonprofit advocacy. Questions that really need to be addressed before some pioneering organization takes a risk and ends up in trouble with the IRS, which, in turn, becomes this inflated legend used as a rationale (excuse?) for many other nonprofits to shun advocacy as “too risky” or even “unlawful”.

To be sure, much of the social media/advocacy nexus falls under the rubric of online advocacy, which the Internal Revenue Service and related court decisions have already substantially addressed. But there are some areas that I view as unique and that, as of yet, I have been unable to find sufficient guidance on. If anyone is an attorney with good advice on how to interpret these areas (Alliance for Justice folks, are you reading this?) or has found a good guide that I’ve somehow missed, please share. And if you have other questions related to social media and advocacy rules, leave those in the comments, too, and I’ll do my best to track down some answers.

  • Who is a member?
    So 501(c)3 organizations’ allowable advocacy is divided into two “types”–direct and grassroots. Direct lobbying is anything directed at the actual change makers OR at the organizations’ members. My first question, then, is, who is a “member” within social media? Membership traditionally requires that people do something to indicate their interest in membership, and it could certainly be argued that being a fan on Facebook or following someone on Twitter meets this criteria. While, within social media, this distinction might not be as critical (because the costs associated with grassroots lobbying in social media are insignificant, making the whole accounting function not entirely relevant), it IS quite significant if these individuals are to be considered members outside of the social media context. For example, someone is a fan of your organization on Facebook, but you’re not a membership organization in the traditional sense. Can you then email or call or direct mail that individual, with a call to action on a policy issue, without it being considered grassroots lobbying, since he/she is a “member”? Or not? Given that grassroots lobbying expense caps are much easier for nonprofits to hit than the overall cap, this is not a trivial distinction.

  • Blurring the line between grassroots and direct, Part II
    In addition to the above, I have a question about when an organization directs a lobbying communication AT a decision maker but does so in a public forum designed, at least arguably, to bring about grassroots action. For example, I send a Tweet to an elected official but all of my Twitter followers can see it–is this direct lobbying, because it’s directed at my elected official, or grassroots, because, while it might lack the ‘call to action’ that traditionally distinguishes advocacy from non-advocacy issue education, it’s happening in a context (Twitter) where it is assumed that the goal is to get people to take action pursuant to your tweets?

  • What responsibility for ultimate action is borne by the nonprofit? The phenomenon that is viral marketing has changed, dramatically, the way that messages are produced and shared, often in very uncontrollable ways. This has implications for nonprofit 501(c)3s and their advocacy; if you create something and it is disseminated widely and has a tremendous impact on a policy conversation, are you responsible for only your initial distribution of the message, or for at least some of the ways in which it was used? My first thought on this is that it is even stronger evidence for organizations to file a 501(h) election, because you can no longer have any assurances that your advocacy will not constitute a “substantial part” of your activities. But I also wonder whether this could potentially trip up even electing organizations, especially around Election Day.
  • When is advocacy electioneering? Which brings me to my last question. In general, we know that nonprofit organizations have to be careful about what they do around election time–even some of their advocacy messages (tell incumbent XYZ not to sell us out on health care reform, for example) which, during non-election times are considered “safe” can be taboo during election cycles and considered unlawful electioneering. The whole viral phenomenon raises concerns about this for me, too. Imagine, for example, that one of your “members” (rather loosely defined, see above), decides to Tweet right before Election Day photos of your organization’s action against that elected official months before with text saying, “it’s time for a change!”. This is obviously electioneering. But is it YOUR electioneering? They are your photos, she’s your member, your organization’s logo is probably in the pictures, and you certainly paid for the action. While the IRS has ruled in the past that an organization cannot be responsible for everything that anyone affiliated in any way with an organization does or says, the sheer volume of information available in today’s environment, and the ease with which it is altered, duplicated, and shared raise questions about accountability and where to draw these lines.

    The social media experts spend a lot of time talking about how organizations need to be comfortable with “losing control of the message” as they dive into social media. I agree, in principle, but the area of nonprofit advocacy rules is one where we cannot tolerate mavericks. Our (c)3 status, and our ability to continue to be strong voices on behalf of social justice, depend on understanding and following the rules.

    Now we just need to know what those rules are.

  • 4 responses to “Social Media and 501(c)3 Advocacy Rules

    1. Alliance for Justice HAS read this, and is proud to say we have just such a guide in the works. We are in the process of writing a guide for e-advocacy and will let you know as soon as it is available. In the meantime, please contact us with any questions (

      • Are you guys omnipotent, or what? 🙂 Another reason why AFJ is such a valuable resource for any nonprofit trying to influence policy and public opinion–I will continue to spread the word and send people your way! Thank you so much.

    2. Thank you Melinda and AFJ!
      I’m in the process of writing our organiziations Social Media Policy and this will be a big help.
      Any update on recent case-law in the past year?

      • I don’t have a sense of case law updates, and, honestly, I think that the whole field is still evolving. I attended and AFJ training about a month ago, on advocacy and (c)3s, and they’re still trying to sort some of this out, I think. You might give them a call to see when there might be some new guidance forthcoming, though, especially because it’s great that you’re looking at these issues from the beginning of your organization’s social media policy. Good luck to you!

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