The Technical Advice Exception
Now that it’s 2018, many nonprofits are preparing for upcoming legislative sessions. A question that arises during these preparations is whether or not nonprofits can provide testimony when they are requested to by a legislator.
Nonprofits, including private foundations, can provide testimony to legislators. While communicating with legislators on legislation is generally considered lobbying (something public charities can engage in), there is also an exception to lobbying for requests for technical advice.
The Internal Revenue Service (IRS) regulations state that a communication will not be considered a direct lobbying communication if it consists of providing technical advice or assistance to a governmental body, a governmental committee, or a subdivision of either in response to a written request by that body, committee, or subdivision.
The two primary components of this are that A) the request must come at the request of the entire governmental body, committee, or subdivision (often times this will be a letter with the governmental unit’s letterhead) and B) that the request must be in writing. In addition, the response provided must be available to every member of the requesting body. Accordingly, a nonprofit taking advantage of this lobbying exception should ensure that all responses to a request are made available to all members of the requesting body. But remember, for testimony to fall within this exception, the communication must be directly related to the subject matter of the request for technical advice or assistance.
How does this look in practice? Generally, a legislator will reach out to a nonprofit and ask them to speak to a committee to provide their perspective on an issue (frequently legislation). If the nonprofit does not want that communication about legislation to be considered a lobbying communication, they can tell the legislator that though they can provide the testimony, they would like to receive a request for the testimony in writing on behalf of the requesting committee. Once the nonprofit receives the written request, they can provide the testimony to the committee without it being considered lobbying (as long as the testimony is available to the entire committee).
Nonprofits should keep in mind that simply responding to a legislator’s request, even if the nonprofit is aware that the response will reach all members of the committee, will not meet the requirements for this exception. There must be a written request on behalf of the legislative body. Additionally, if a nonprofit advocates for a topic beyond the scope of the request, this exception will not apply.