Referendum, Ballot Initiative or Similar Procedure (Part I)

Lobbying is generally defined as a communication to legislators intended to influence specific legislation.  Legislation includes action by the public in a referendum, initiative, constitutional amendment or similar procedure.  Such procedures become specific legislation when the petition to place the measure on a ballot is first circulated among voters for signature.

While public charities are certainly permitted to, and often should, engage in lobbying activities, subject to certain limitations, they are prohibited from engaging in substantial lobbying (discussed in an earlier post).  For electing charities (those that have made the 501(h) Expenditure Test election), the substantial lobbying prohibition translates to restrictions on total (direct and grassroots) lobbying expenditures and grassroots expenditures.

Direct lobbying expenditures include those expenditures made in connection with any attempt to influence specific legislation through communication with any member of a legislative body.  They include not only the costs to deliver or distribute such communications, but also the costs to research and prepare them.  With respect to a referendum, ballot initiative or similar procedure, the general public in the state or locality where the vote will take place constitutes the legislative body.  Accordingly, a communication to one or more members of the general public in that state or locality referring to and reflecting a view on a measure that is the subject of such procedure is direct lobbying. 

When engaging in ballot measure activities, charities must also consider applicable campaign finance laws.  In California, charities must be aware of provisions of the California Political Reform Act (CPRA) that govern the disclosure and reporting obligations of participants in California ballot measure campaigns (to be discussed in more detail in a future post) as well as any applicable local rules.  For example, a charity may trigger the reporting obligations of a Committee (as defined by the CPRA) if it does any of the following:

  1. Receives contributions for ballot measure activities of $1,000 or more in a calendar year.
  2. Makes independent contributions (not in coordination with a ballot measure committee) urging voters to adopt or reject a measure of $1,000 or more in a calendar year.
  3. Makes contributions for ballot measure activities of $10,000 or more (money or in-kind) in a calendar year.


The Public Charity’s Guide to the California Initiative Process, Northern California Grantmakers Public Policy Committee