Expansion on the Section
501(h) Election
For an organization to remain eligible for tax-exempt status under
section 501(c)(3), it must not engage in too much lobbying activity.
Section 501(c)(3) provides in relevant part that an organization
shall be eligible for tax-exemption so long as "... no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting, to influence legislation (except as otherwise provided
in subsection (h))...". Since under the "no substantial
part" test there is very little guidance to help section 501(c)(3)
organizations know what is too much lobbying, in 1976 the Congress
added subsection (h) to section 501. Subsection (h) generally allows
section 501(c)(3) organizations to elect to have the question of
whether they are engaging in too much lobbying decided on the basis
of how much money they spend on lobbying, i.e., the level of their
lobbying expenditures. We will refer to this election as the
"(h) election." Generally, section 501(c)(3) organizations
are permitted under the (h) election to spend up to 20% of the first
$500,000 of their budget on lobbying and reduced percentages of
budget amounts above $500,000 with an overall cap of $1 million.
Of the permissible amounts, only 25% may be spent on grassroots
lobbying. Generally grass roots lobbying involves contacting
members of the general public and in turn urging them to contact
legislators to urge them to act favorably or unfavorably on some
proposed legislation.
The (h) election provides very clear guidance
as to what is and is not lobbying, etc., and its
rules are liberal in the sense of characterizing
activity, that might be considered lobbying under
the rules that apply if a group has not made the
election, as not constituting lobbying.
Many close observers of the nonprofit sector
think that groups that do lobbying at any
significant level are well advised to make the
election. It appears, however, that few
have done so.
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