Lobbying and Advocacy

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:

Direct lobbying

A communication (or the planning of a communication) that:

1. refers to specific pending or proposed legislation;
2. expresses a view on such legislation; AND
3. is directly communicated to a member or employee of a legislative body or any government official or employee who participates in the formulation of the legislation.

Grassroots lobbying

A communication (or the planning of a communication) that:

1. refers to specific pending or proposed legislation;
2. expresses a view on such legislation; AND
3. encourages the recipient of the communication to take action with respect to such legislation by including any ONE of the following “calls to action:”
   • urges contact with a legislator,
   • provides contact information for a legislator,
   • provides a petition, draft email, postcard, or other means to communicate with a legislator,
   • identifies a legislator as being for, against, or undecided on the legislation or serving on the committee that will vote on the legislation, or
   • identifies a legislator as the audience’s representative.

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

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:

• reflects a view on the general subject of the legislation and either:
  • refers to that legislation, or
  • asks people to contact legislators on that general subject.

   

Any activity that lacks one of the basic elements of the definition of grassroots or direct lobbying. For example:

• Any advocacy activities with respect to nonlegislative action, such as regulations and administrative rules.
• Contacts with executive branch officials or others who do not participate in the formulation of legislation.
• Contacts with the general public that do not include a “call to action” as defined above and are paid mass media advertisements on highly publicized legislation

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:

• predate the assistance,
• come from the individual with the authority to bind the body, on behalf of the entity as a whole, and
• specify the assistance requested.
  

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.”

Self-defense

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:

1. be a public charity;
2. provide, in advance, an allocated budget demonstrating that they have sufficient non-RWJF unrestricted funds to conduct any related lobbying activities; and
3. demonstrate that they have a sufficient understanding of the IRS rules to appropriately identify and track their lobbying activities.

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:

• Is the communication a sufficient length to provide a full and fair analysis? While there is no set requirement, fact sheets, short issue briefs, and media ads generally lack the detail and context to provide a full and fair analysis.
• Is tone/perspective appropriately independent and objective with respect to the subject matter, such that the audience can form their own opinions and conclusions?
• Are the relevant issues fully explored and addressed?
• Are alternative, opposing our counterarguments acknowledged and analyzed?
• Are recommendations supported by objective facts and analysis?
• Are citations to reputable, objective sources included?
• If the communication relies on a research study, is the research methodology explained?
• What is the purpose of the communication?
• What is the distribution plan for the communication?

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:

• The letter must be written on behalf of the governmental body, agency, committee, or subcommittee, or working group requesting assistance.
  • A letter from the governor or, if relevant, the official with legally delegated authority from the governor with respect to the topic of legislation for the state, which requests assistance for specified executive agencies and/or bodies, will be sufficient for all of those specified agencies or bodies.
  • A letter from an agency must be signed by the person with the authority to bind the agency.
  • A letter on behalf of a legislative committee, subcommittee, or working group must be signed by its chair.
     
• The letter must specify the topics on which assistance is requested.
• The letter should specify the kinds of assistance requested; e.g., providing testimony, participating in telephone conferences and meetings, and reviewing and commenting on draft legislation. The letter also should note that the recipient of the request is expected to limit their participation to providing information or assistance that has been requested.
• The letter should note that all assistance and advice provided shall be made available to every member of the governmental body, agency, committee, subcommittee, or working group requesting assistance and shall be for the use of all members.

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.

• Inclusiveness. We support forums that are open to different perspectives and experiences and are respectful of all participants and their views.
• Nonpartisanship. We believe that RWJF brings value to the public debate of important issues because of its balanced and evidence-based approach.
  

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.

• No partisan political activity permitted. This event cannot be carried out in a way that directly or indirectly supports or opposes any candidate for public office or any political party. You should refrain from discussing election campaigns, candidates, or political party platforms.
• No mention of any participant's candidacy. No one was invited to attend this conference in their capacity as a candidate for public office. Please do not discuss--or even refer to--a conference participant's status as a candidate for public office.
• No lobbying activity permitted. RWJF is also prohibited from sponsoring any lobbying activity.
  • You should not suggest participants contact legislators about legislation (whether already introduced or simply being discussed) as such suggestions to the public are considered a lobbying activity. Specifically, you should not identify legislators who are: opposed to legislation, undecided, members of the committee considering legislation, or the representatives of the conference attendees.
  • If your audience will likely include individuals who participate in the legislative process (e.g., elected officials or legislative staff members), you should also not reflect a view about specific legislative proposals. Lobbying, in this context, includes communications with legislators and other public officials involved in the legislative process to advocate for or against legislation.
    

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:

• Discuss legislation that already has passed. Please note, however, that your discussion of legislation that has passed in one jurisdiction may be lobbying if you suggest to legislators that they should adopt similar legislation in other jurisdictions or suggest to members of the public that they contact their legislators to push for the adoption of similar legislation in their jurisdictions.
• Provide an analysis of legislation if the analysis includes a full, fair, and objective discussion of the relevant facts sufficient to permit that audience to form an independent opinion. Discussions of proposed legislation should include such an objective review of the evidence, both pro and con, relevant to the legislation. This is in keeping with the purpose of all RWJF-sponsored events, which is not to advocate for any particular policy but to explore all promising solutions to an important problem. Evidence in this context is not limited to academic studies but can include what policymakers and administrators have learned through experience with a policy.
• Discuss broad social issues. Such discussions are not lobbying, even if the issues discussed are the subject of pending legislation. These discussions, however, cannot touch on the merits of a specific legislative proposal or encourage participants to take action with respect to a legislative proposal.

These links to third-party resources provide additional information on lobbying and advocacy.

• Learn Foundation Law Advocacy & Lobbying Rules for Private Foundations
• Alliance for Justice: Boulder Advocacy: Investing in Change
• Alliance for Justice: Bolder Advocacy: Influencing Public Policy in the Digital Age
• Alliance for Justice: Bolder Advocacy: Tips on Using Social Media for Advocacy

Policy Research and Technical Assistance 

• A Guide for Researchers