Taking a Stance on the Filibuster: Probably Lobbying for 501(c)(3)s

As the sun rises on a new administration, it’s easy to forget that despite the change in leadership in the White House and the US Senate, that passing legislation is still a tremendous challenge. While Schoolhouse Rock taught young Gen-Xers how a bill becomes a law, it left out a few details, none more important than the filibuster and cloture rules in the Senate.

The filibuster is based on a Senate rule that allows a minority within the Senate a practical veto over whether a bill can get to a final vote. While it is a relatively well-known procedure, many are surprised to learn that the filibuster only dates back to the early twentieth century and is not found in the Constitution. The filibuster has a sordid history, most notably and frequently used as a tool to prevent the passage of civil rights legislation.

The bottom line on the filibuster is if any Senator wants to derail passage of a bill, the Senate rules allow them to demand continued debate, stalling the ability for that bill to get a final vote. The only way to end debate—Senate rules call that “cloture”—is for 60 Senators to agree that debating is over and it’s time for a vote on the bill. That means a bill that would pass 59-41 can be stopped in its tracks by Senators who would be on the losing side of that vote.

In recent years, most substantive bills before the Senate have been filibustered, effectively requiring 60 votes for approval rather than a simple majority. However, the Senate has changed the cloture rules to narrow what can be filibustered, excluding the need for a supermajority to confirm executive branch officials and federal judges. But the rule still serves as a barrier to most legislation unless it is a part of a budget bill that fits into another exception that has allowed passage of things like President Trump’s tax cuts for the wealthy.

There have been efforts to end the filibuster and the need for a super-majority for most legislation before the Senate. For many in the nonprofit community, the filibuster stands as a barrier to passing laws that are a part of the mandate from voters in the 2020 election.

Lobbying or Not?

To end the filibuster, Senators would need to change Senate Rule 22, which defines how debate ends in the US Senate. For 501(c)(3)s, the question is whether advocacy to keep or amend the rule is considered lobbying activity. Private foundations are heavily excise taxed if they engage in lobbying, while public charities are allowed to do it, but limited in the amount and need to report it to the IRS every year. For more on this, see Bolder Advocacy’s Being a Player.

But is advocating to change or maintain Senate Rule 22 to US Senators or the general public lobbying? The answer is it can be. The IRS would probably consider the rule to be “specific legislation” for purposes of the lobbying definitions because any changes to the rule ultimately require a vote of the Senate. IRS guidance has established that unicameral legislative acts within the Senate, such as judicial confirmation votes, treaty ratifications, and resolutions count as specific legislation. As a consequence, any advocacy to Senators or their staff for or against changing Rule 22 would be direct lobbying (although we do not have any definitive rulings from the IRS about this).

But what about advocacy to the general public? In that circumstance, it depends whether the communication includes a call to action for the public to contact their Senators and urge them to vote on a Rule 22 change. If a public communication by a 501(c)(3) that has made the 501(h) election advocates for a change in the cloture rule, but does not have a call to action, it is not lobbying under the rules. For more on what counts as a call to action under the rules, see Bolder Advocacy’s Being a Player.

The Filibuster – It’s Complicated

For as many people that are advocating for the end of the filibuster, there seem to be just as many that want to retain it, making it unclear whether the effort to amend Rule 22 will fall as other attempts have before. If your 501(c)(3) is taking a stance, however, it’s important to know that some of the advocacy on the matter may count as lobbying.