Advocating on Judicial Nominations

 

We are deeply saddened by the loss of one of the greatest jurists of our lifetime. Ruth Bader Ginsburg was a champion for a just and free society, as an advocate, an attorney and a Supreme Court Justice. She is irreplaceable, but someone will be nominated to take her seat on the Court. 

For over 4 decades, Alliance for Justice has been a leader on Supreme Court nominationsgalvanizing a large and diverse coalition of progressive advocatesNow we are faced with the biggest fight yetIf you and your nonprofit care about the cause of equal justice, and the future of our country—now is the time. Not only can your nonprofit take a stand. It must. 

Read Alliance for Justice’s full statement on the passing of Justice Ginsburg

Our attorneys for this episode:

Tim MooneyLeslie Barnes Quyen Tu

Shownotes:

Work supporting or opposing a judicial nomination like the Supreme Court counts as lobbying.  

For 501(c)(3) public charities, it’s legal to lobby but tax law limits how much you can do. 

There are two ways for (c)(3)s to measure their lobbying limits. If you’re going to be active in this area of judicial nominations, you should make the 501(h) election, which we’ll cover in more detail in a future episode. 

The benefits of making the 501(h) election: 

  • Clear dollar based lobbying limits 
  • Clear definitions of lobbying 
  • It’s retroactive to the beginning of your tax year 
  • Although there is a limit, the consequence of going over the limit is an excise tax and going over in one year doesn’t jeopardize your exempt tax status. 

Other 501(c)s can lobby an unlimited amount, but they can also tie their issue advocacy to electoral outcomes. For example, they can tie judicial nomination advocacy to their candidate endorsements.
 

Pre-nomination advocacy 

Trying to influence the President on specific nominees is lobbying 

Speaking to Senators before the nomination – unlikely to be lobbying. 

Talking about the process  for instance waiting until after the election to proceed with filling the vacancy — probably not lobbying activity before or after a nomination.

 

Post-nomination advocacy 

Direct lobbying – Senators and sometimes the President 

Grassroots lobbying – the general public, when there’s a call to action 


How does the election factor in?
 

For 501(c)(3)s that focus on the nomination itself, it is safe lobbying territory 

501(c)(3)s should not stray from the nomination process and tie their advocacy into whether the President or Senators should be reelected. That gets into partisan territory.  

Listen to the first episode of Rules of the Game more on advocating in an election season. 

 

Best Practices 

Do’s 

  • Talk about the importance of the Supreme Court and the lower courts in protecting people’s rights. Do talk about RBG’s legacy and her decisions. Do talk about the 5-4 votes and how the balance could be tipped. 
  • Talk about any nominee’s record on the issues, with a particular focus on the potential impact on issues on which the organization has a record of working and speaking  
  • Talk about the nominee’s experience (or lack thereof). 
  • Tie a Senator’s public position on the issues to the nominee’s known record, or President’s statement on qualities he wants in nominees. 
  • Engage in grassroots mobilization. If your efforts include a call to action, for example, “Tell your Senator to Vote No,” track activities as grassroots lobbying. If advocacy concerns the process, that will generally not be counted as lobbying. For example, “No vote until after inauguration day,” or “A lame duck Senate should not be voting on a lifetime Supreme Court seat,” will likely not count as lobbying.  
  • Fund this work if you are a private foundation  

Don’ts

  • Don’t say a Senator should be defeated or re-elected because of their actions on this vacancy.   
  • Don’t praise or criticize statements of the people who are running against sitting Senators or the President on the nomination. 
  • Don’t share social media posts from candidate accounts—check before you tweet. Sitting Senators will have a campaign account and an account for their Senate role—check to ensure you are sharing from a non-campaign account. Be careful with c4 and PAC accounts—many will be posting content a c3 should not share. 

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