A message from Gary Bass, Executive Director of the Bauman Foundation:
While the legal opinion linked to above was written for the Bauman Foundation, which is a private foundation, it is very helpful in providing a roadmap for how private foundations in general can play a role in promoting a fair and accurate census. Every foundation has its own culture and style of operation; still it is helpful to know what foundations can and cannot do when it comes to the census. It is in that spirit that I’m sharing the memo with you. Feel free to share it with those who provide legal guidance for your foundation.
The bottom line: private foundations have enormous flexibility to support census advocacy initiatives as well as outreach efforts to get the hardest-to-reach to fill out their 2020 census.
Here are five toplines from the memo:
- Private foundations are not permitted to lobby without incurring a taxable expenditure. Public charities, including community foundations, are permitted to engage in limited (yet generous amounts of) lobbying without any fines or penalties.
- Lobbying is defined as an attempt to influence legislation at any level of government. It does not include an attempt to influence an executive branch action, to sue the government, or to discuss broad policy issues (such as with the census). This means that private foundations are not only permitted to fund non-lobbying activities, they may engage in that work themselves.
- Private foundations may support grantees that engage in lobbying. They can do this through a general support grant or a project grant where the size of the grant is not greater than the non-lobbying portion of the project budget. It is vitally important that foundations refrain from including a prohibition on using their funds for lobbying in their grant award letters. It is fine to say that the grant is not earmarked for lobbying or any specific portion of the project budget. But the outright prohibition is neither required by law nor regulation and adds an unnecessary restriction.
- It is expected that the Census Bureau will invite public comments in May on the 2020 census, which includes the citizenship question. Private foundations may submit comments, sign on to other comments, fund groups to submit comments, and encourage others (such as elected officials) to submit comments.
- Private foundations may also circulate non-lobbying information about the citizenship question to their grantees. They may also fund litigation in opposition to the citizenship question, be a party to the litigation, or file an amicus brief. There are other permissible activities that funders may support to help get the hard-to-reach counted during the 2020 census.