RWJF is classified as a private foundation under the Internal Revenue Code of 1986 (the “Code”). Private foundations are prohibited from lobbying themselves or providing grant funds that are earmarked for lobbying. In contrast, tax-exempt charitable organizations that are classified as public charities under the Code are permitted to engage in some lobbying.
The definition of “lobbying” for the purpose of the IRS rules is different than other definitions of “lobbying,” such as the “lobbying” prohibited under grants and contracts received from state and federal agencies, or the activities that can trigger lobbying registration obligations under the Lobbying Disclosure Act and various state laws. These guidelines only address the Internal Revenue Code lobbying prohibition that applies to private foundation funds, but various other laws may also be relevant to the activities of grantees.
RWJF is required to publicly disclose prohibited lobbying activities and pay a penalty tax on them. In addition, repeated and/or serious violations can result in the possible revocation of RWJF’s tax-exempt status as a Section 501(c)(3) organization. In addition to these legal consequences, any violation of these rules could negatively impact RWJF’s reputation and/or those of its grantees.
For these purposes, lobbying covered by the prohibition can take two forms:
A communication (or the planning of a communication) that:
A communication (or the planning of a communication) that:
In order to have direct or grassroots lobbying, each of the three elements of the lobbying definition must be present. Any activity that is conducted for the purpose of planning a lobbying activity is also lobbying. If one of the three elements of the lobbying definition is missing, the communication is not lobbying, with the exception of communications distributed through paid advertising and communications on ballot measures, which are subject to special rules, as noted below.
Ballot measures are treated as legislation; the voters are the legislative body. As a result, a communication to the general public that refers to a ballot measure and reflects a view on it is considered direct lobbying.
Paid mass media ads
Paid mass media ads that run within two weeks before a legislative vote (committee or full vote) on “highly publicized” legislation is presumed to be grassroots lobbying if it:
Any activity that lacks one of the basic elements of the definition of grassroots or direct lobbying. For example:
Nonpartisan analysis, study, or research
A full and fair exposition of an issue that has a clear educational purpose and is distributed broadly (including persons on both sides of the issue).
Technical advice or assistance
Assistance in response to a written invitation from a legislative or other governmental body. The invitation must:
Examination of broad social issues
Public discussion, or communication with legislative officials, addressing broad social, economic, and similar problems that do not address specific legislation or include a “call to action.”
Direct communications with legislators about specific pending/proposed legislation that could impact an organization’s existence, powers, duties, tax-exempt status, or the deductibility of its contributions.
Technical support to advocates
Providing general technical assistance to increase the capacity of advocates or providing messaging or polling information to advocates on specific issues.
Can the Foundation make grants to an organization that also conducts lobbying on issues related to grant activities?
Absolutely. RWJF can make grants to support projects that also involve lobbying or make grants to organizations that also conduct lobbying on matters related to the activities conducted under the RWJF grant if certain requirements are satisfied.
In general, the grantee must:
In advocacy programs, grantees are generally required to demonstrate an existing relationship with legal counsel with expertise in the IRS rules. RWJF grant funds can be used to retain legal counsel. Program officers considering such awards should confer with the Law department in the early planning stages of the award process.
The nonpartisan analysis, study, or research (“NPA”) exception to the lobbying rules enables the Foundation and its grantees to distribute materials that refer to and reflect views on specific pending or proposed legislation without violating the lobbying prohibition.
To satisfy the requirements of this exception, the IRS regulations require that the communication must include a “full and fair” examination of the relevant facts sufficient for the audience to form an independent opinion on the issues and recommendations included in the materials.
In addition, the communication must have a demonstrated nonlobbying, educational purpose and be broadly distributed (not only to policymakers or those on the single-side of an issue). Finally, NPA may not contain a “call to action.”
The following factors are used to determine whether a product or presentation satisfies this exception:
As a private foundation, the Robert Wood Johnson Foundation is prohibited by federal tax law from engaging in or funding direct and grassroots lobbying activities.
For an overview of these rules, please see the document on Prohibited Lobbying and Political Campaign Activities. Direct lobbying activities may include providing federal, state, and local legislators and their staffers and other government officials and employees technical assistance concerning specific legislation unless the governmental entity in question invites such assistance through a formal request letter before any assistance is provided. Requests for technical assistance may include providing oral or written testimony, assisting with legislative drafting, or any other response to a policymaker or staffer that refers to and reflects a view on any aspect of specific legislation. A response to such requests for technical assistance can be considered to be lobbying, unless the invited individual or entity obtains a written request for assistance that satisfies all of the requirements below.
Responses to requests from government officials and employees concerning pending or proposed legislation require a formal written invitation letter unless the request can be addressed through the provision of nonpartisan analysis, study, or research.
If an RWJF grantee is asked by any federal, state, or local official or employee to provide assistance relating to legislation and cannot satisfy the request by providing nonpartisan research, then a formal request letter from the governmental body is required if RWJF funding or other resources (including the services of RWJF communications contractors) are to be used, or if the request is directed to a program that bears the RWJF name.
A letter obtained by the Foundation is not transferrable to our grantees, including our national program offices. A letter obtained by one grantee is not transferrable to any other RWJF grantee, even if those grantees are working within the same coalition of organizations. Any grantee wishing to provide assistance in response to a government request using Foundation funds or on behalf of a Foundation program must obtain their own letter, addressed to the legal name of the organization.
A written request for technical assistance from a governmental body, agency, committee, subcommittee, or working group must satisfy all of the following requirements:
Please seek assistance from counsel before requesting such a letter on behalf of a grantee in response to any request from a policymaker or staff of a policymaker.
Thank you for agreeing to participate as a speaker or panelist in a conference or other event sponsored in whole or in part by the Robert Wood Johnson Foundation (“RWJF”). RWJF values your contribution to building a national Culture of Health.
RWJF encourages robust and nonpartisan dialogue consistent with the highest standards of ethics and legal compliance. Please review and follow the guidelines set forth below at this RWJF-funded event.
Because RWJF is a private foundation, federal laws restrict our activities. These laws also restrict how organizations we fund can use our money. Although these laws are quite technical, we hope the points below will provide a simple overview.
There are many ways to address policy changes in your discussion at RWJF-funded events that are completely consistent with the rules described above. You may, for example:
These links to third-party resources provide additional information on lobbying and advocacy.
Policy Research and Technical Assistance