Day III: The Art of Change

Tuesday afternoon featured a session on advocacy for arts organizations and foundations, organized by Janet Brown of Grantmakers in the Arts and Bob Lynch of Americans for the Arts. Lynch could not attend as scheduled, but sent Chief Counsel of Government and Public Affairs Nina Ozlu Tunceli in his stead. Brown and Tunceli were joined by Olive Mosier of the William Penn Foundation, Marian Godfrey of the Pew Charitable Trusts, and Jennifer Goodale of the Asian Cultural Council/Trust for Mutual Understanding (and formerly director of corporate contributions at Altria).

Brown introduced the session with a story about her time as an arts advocate in South Dakota. The governor of her state at the time had a friendly, joking relationship with her, which she could tell was a good thing because it defused the somewhat stark political differences between them. Every year, she would send him a fax playfully asking him to mention the word “art” one time during his State of the State address. For the first three years, she listened for it in the State of the State to no avail, but in the fourth year, he mentioned that educational standards had remained high in several areas, “including in music, dance, theater, and visual art.” Shortly afterward, a member of Brown’s organization’s Board happened to be in attendance at a gathering of professionals in the concrete industry, and the subject of the Governor’s State of the State speech came up and one of them brought up the inclusion of music. With that, this group of burly  industry men launched into a half-hour conversation about how one of them had played trombone in high school, one of them used to sing in the choir, and how wonderful making music could be–the clear inference being that this conversation would never have happened without the Governor’s prompt (which itself wouldn’t have happened without Brown’s lighthearted advocacy efforts).

Storytime over, Tunceli gave an informative presentation on the legal issues surrounding advocacy and lobbying for foundations. It turns out that despite several restrictions intended to prevent foundations from lobbying elected officials directly, there is no reason for foundations to fear getting involved in advocacy efforts more generally. Tunceli explained that private foundations and most government grantmakers can perform all of the functions of advocacy with the exception of the narrow limits of “lobbying.” What is lobbying? Well, there are two kinds, direct lobbying and grassroots lobbying. Direct lobbying is only such if it is:

1. An attempt to influence specific legislation (proposed or identified)
2. By stating your position (for or against)
3. To a federal, state, local, or foreign public official (or his/her staff)

Unless an action meets all three of these tests, it is not direct lobbying and is thus allowed under lobbying restrictions. (There is also grassroots lobbying, which Tunceli didn’t explore explicitly during her presentation, involving mobilizing constituents or the public to speak to legislators in the manner described above. This is also prohibited for private foundations.)

Although private foundations and government grantmakers can’t engage in lobbying directly (unless it’s their own survival they’re lobbying for), public charities (which include most nonprofits) and community foundations may — as long as they don’t spend more than a limited portion, usually 5-10%, of their funds on it. (Note that regardless of lobbying restrictions, neither private foundations nor public charities can do anything to try to influence an election in an election year. So they can’t endorse a candidate, donate to a campaign, educate voters about candidates’ positions on the issues, etc. But they can educate voters about the issues as long as they don’t mention the candidate).

And foundations can, in fact, support organizations that do direct or grassroots lobbying — as long as they can plausibly show that none of their funds were used for such purposes. That means the grant has to be unrestricted in nature, and it can’t be more than or reasonably close to an organization’s or project’s budget.

So, to sum up, if you’re a foundation, you can:

• Have an opinion about an issue
• Share that opinion with the public
• Let that opinion drive your grantmaking
• Commission research on the issue
• Conduct surveys on the issue
• Create educational advertising around the issue
• File lawsuits related to the issue
• Try to get the media to cover your issue
• Draft policy papers related to the issue
• Conduct nonpartisan voter registration and turnout operations

And all of it can be perfectly legal as long as it doesn’t involve specific legislation or specific candidates. (Please note: this blog is not the same thing as professional legal advice, so don’t go changing your whole program strategy without consulting counsel first on the specifics of your situation. OK, now the lawyers are happy.)

Tunceli suggested that grantmakers’ fear of getting involved in advocacy has a chilling effect on the activities of their (less-regulated) grantees, particularly when language such as “lobbying activities are expressly forbidden” is used. (Tunceli received some pushback from her fellow panelists on this last point; they claimed that both counsel and auditors had urged the inclusion of that language. Godfrey explained that part of the reason for this is because of a perceived business risk that may be separate from any legal risk.)

Though Tunceli’s presentation was the star of the show, several interesting issues came up during the question-and-answer period. One audience member speculated that the reason that foundations (especially corporate foundations) don’t get more involved in advocacy is because advocacy takes time, and foundations may be looking for more of a quick fix. Since two of the panelists were from Philadelphia, the Greater Philadelphia Cultural Alliance received mention several times as one of the more sophisticated arts advocacy operations in the country — their Engage 2020 initiative includes some advocacy components, and they were extremely active in the recent drama involving the state arts budget. Mosier mentioned media strategy as a particular “hole in our toolkit” that hasn’t been exploited to the extent it could be, while Godfrey underscored that advocacy needs to seen as a standard part of doing business in order to become effective over the long term.