Political Action

As a private not-for-profit corporation, an association library can engage in public advocacy on ballot measures such as a budget referendum, including telling voters to “Vote Yes.” However, association libraries that have 501(c)(3) tax-exempt status or otherwise accept tax-deductible donations cannot support or oppose political candidates, which the IRS considers to be prohibited “political activity.”

These conditions also apply to a “Friends of the Library” group. Friends of the Library can lead a Vote Yes campaign for a budget referendum, but they cannot support or oppose political candidates, including a library trustee candidate on the same ballot as a budget referendum.

Friends of the Library and association libraries that have 501(c)(3) status must be careful not to make advocacy a substantial part of their activities. A helpful rule of thumb derived from Section 501(h) of the Internal Revenue Code is that a small not-for-profit corporation should spend no more than 20% of its revenue on advocacy, such as campaigning for a ballot measure or lobbying elected officials.

Of course, a library receiving taxpayer money and then telling people how to vote could raise objections from the public, even though such conduct is legal. For this reason, it’s wise to address this issue as part of a carefully planned and visible Vote Yes campaign. Here’s a sample FAQ that an association library in this situation could post on its website and social media.

Can a library really ask people to vote “yes”? 

Yes, it can. As an association library, the [NAME] Library is a private not-for-profit corporation, not a government entity. 

Doesn’t the Library receive taxpayer funding?

Yes, it does, and the Library is fortunate to receive that support. Many not-for-profit corporations receive public funds—that does not make them government agencies or prohibit them from engaging in public advocacy.

Why is the Library telling me how I should vote?

The Library’s Board of Trustees voted in favor of requesting additional funding to maintain and improve the valuable services that the Library provides to our community. In furtherance of its mission to provide information access, educational services, and community resources, the Library is conducting a public awareness and advocacy campaign that informs our community about the benefits of the proposed budget and encourages voters to vote “yes.”

Can I help?

Yes, the Library is gratefully accepting help and coordinating with advocates and professionals who share our vision for a bigger, brighter, and future-focused library. Please contact [NAME] at [CONTACT INFORMATION] to offer assistance!

An association library can also contract a marketing firm or public relations professional to handle this delicate work. Good luck out there in the arena of civic participation and thank you for an important question!

This is an area that (literally) tears groups apart.

There is no one right answer to this, but countless examples show that the process for arriving at an answer is just as important as the decision to issue a statement (or not) of support (or opposition).

For a professional association, that process starts with the founding documents of the organization: the charter or certificate with its “purpose,” its bylaws, and any applicable statement of ethics or law relevant to its foundations.

If the purpose, bylaws, or ethics apply directly to an issue, the obligation (or justification) to speak up is plain.

For example, a professional organization of lawyers issuing a statement objecting on ethical grounds to calls to impeach judges based on duly issued judicial decisions can cite the relevant constitutional provisions, law, regulations, and ethics—as well as respect for the rule of law—to justify issuing the statement.

On the other hand, if the purpose, bylaws, or ethics of the organization don’t have a direct correlation, it’s a harder sell.

For example, the same professional organization of lawyers issuing a statement in opposition to contemplated restrictions on TikTok might have to work a tad harder to justify a statement. But a different organization of lawyers—one created to promote advances in technology, communications, and free speech, for instance—might find it easy to justify.

When an immediate connection to the issue at hand is not easily discernible, it is up to leadership to develop an iterative process to discern the preferences of the members. This is cumbersome and, for matters perceived as urgent, can result in leadership being criticized as “too slow,” but it is the only way to draft and issue a statement that the organization can truly support.

This “iterative process” is where things get tough: some members will want immediate and strong statements. Others will disagree, either because they see the issue differently or because they think it is not the place of that particular organization to take a stance. People will argue, and hopefully, they will keep it civil—but even when they do, this is where things can fall apart.

To minimize the chances of that happening, it is essential to develop a good iterative process.

To do that, leaders should carefully solicit and receive input from members on that controversial topic. This can be done by creating a committee or working group to frame the question: to make a statement or not to make statement?

Because it was a cultural touchstone, let’s take the example of issuing a statement regarding the murder of George Floyd.  His hideous murder by law enforcement inspired many organizations to issue immediate statements, even if they were not directly involved in civil rights or law enforcement. 

In the case of George Floyd, this decision was based on some version of the question: If our fundamental purpose doesn’t require us to stand against this horrible murder by people charged with protecting public safety, what are we for? 

For an organization that did not feel an immediate ability or call to issue a statement, the rubric for deciding whether or not to make an immediate statement would be:

• Does the issue directly touch on a fundamental purpose or foundation of the organization?
• If yes, is leadership authorized to issue statements without further approval from the governing body or membership?
• If yes, does the statement to be issued serve the purpose of the organization?

If the answer to any of those questions is either “no” or “unknown,” then further assessment (or drafting) through an iterative process is needed.

Because an ad hoc iterative process can be cumbersome, some organizations have officers, public relations committees, and/or administrative teams who are empowered by policy (adopted by the governing board) to assess and develop timely statements. For organizations that want to be nimble when reacting to public events, if such a structure is not in place, it is time to create one.

The structure created (whether permanent or an ad hoc committee) will ask deeper questions:

• Even if the issue doesn’t directly touch on a fundamental purpose or foundation of the organization, is there a compelling reason for the organization to speak up?
• If yes, what is that reason?
• What, if any, are the risks of speaking up?
• Do those risks outweigh the reasons?
• What are the hoped-for results of issuing a statement? How will those results be assessed to inform future decision-making?
• If all things point to issuing a statement, who should be authorized to issue the statement, and who will address follow-up?        

By exploring these questions, the organization can assess and articulate its position. To ensure transparency and assure members of how the decision was reached, the answer to every question should be documented before the governing body authorizes the issuance of a statement or decides not to issue one.

Here is where the legal aspect comes in.

Because governing boards are the fiduciaries of the organizations they govern, the documentation assembled should show that the decision about issuing a statement—whatever it is—is based on the best interests of the organization.

Is this cumbersome? Yes.

Is it essential? Yes.

Will an organization engage in the most careful process ever and still risk alienating some members? Absolutely. Could a well-documented decision still create reputational damage? Yes. That is the price of admission for addressing serious questions. Not everyone will agree, and not everyone will be happy, but the board will be able to show it did its duty (regardless of impact).

With that said, here are answers to the specific questions:

Are there legal or ethical boundaries for issuing such statements that we should be aware of?

Yes—the founding documents, bylaws, and policies of the organization should be considered, and the decision should be rooted in the best interests of the organization.

Would a statement by the president of the organization, not necessarily reflecting the views of the board/organization, for example, be safer for the organization and/or the president?

No. The leader of an organization—if speaking in that capacity—speaks for the organization. If they are making their own personal statement, it should be characterized as such, which makes it a nullity for purposes of this issue.

If we speak out in favor of one group, do we have to do so for every group?

That depends on the needs of the organization. An association devoted to biology as a profession may want to speak up on every matter that relates to the profession, including groups that may have less access to a path towards that career due to certain quantifiable factors. On the other hand, an association devoted to biology may maintain a policy of only “speaking up” by creating a rigorously peer-reviewed publication,[1] basing its decision on ensuring that the credibility of the organization’s publication can’t be undermined by any other activity. While either decision can be criticized, either is justifiable and appropriate (legally speaking).

The only “wrong” decision here is if an officer, board member, or board “goes rogue” and issues a statement on behalf of the organization without a clear justification or authority. Such action can be the basis for removal, and that is a whole other type of controversy.

Thank you for this series of thoughtful and timely questions.

I am so glad we got this request! A long, detailed, and deeply footnoted resource is the only way to responsibly discuss the difference between these things.

We’ll start with: what is “lobbying?”

“Lobbying” is broadly defined as making contact with a government official to ask for something.

Of course, “asking for something” encompasses a LOT of activities. So, after broadly defining lobbying, the law then narrows it down a bit.

The federal lobbying law[1] whittles its definition of “lobbying” down by exempting things such as testimony, rule-making submissions, “asks” made in speeches or other general communications, and contact between public officials in their official capacity (for instance, if a library treasurer asks the IRS to give the library an extension on filing its Form 990, they are not lobbying).[2]

New York State’s lobbying law[3] also reduces its broad definition of lobbying with various exceptions (for instance, if a library’s attorney asks a local government’s attorney about collaborating on a bond initiative, it is not lobbying).

Because of the many holes in this wide net, a large part of getting lobbying right is taking the time to know what lobbying is, and what it isn’t.

For libraries, museums, and other cultural institutions, things that are NOT lobbying (although they could be interpreted as “asking the government for things”) are:

• Issuing reports to the community that could be construed as making an “ask” related to funding, a grant, or legislative action[4];
• Stating legislative, financial, or other asks of the government to reporters or the news media;
• Joining in a public statement with other libraries or a library system about pending legislation at the local, state, or federal level;
• Testifying before a local, state, or federal legislative body (even if it pertains to something of importance to the library);
• Engaging in advocacy that doesn’t make contact with a specific official (for example, gathering at the steps of the capital building with signs asking for funding);
• Appearing before a local zoning or planning committee as part of a proceeding;
• Submitting a response to a question put by a legislator or public official;
• Procurement activity after the contract is awarded.

For libraries, museums, and other cultural institutions, relevant examples of things that ARE lobbying are:

• Directly asking a legislator to change a law;
• Directly asking the governor to issue, adopt, rescind, or amend an executive order;
• Directly asking any public official to make a determination regarding a procurement (like a contract to the library system to do a scanning project);
• Asking in private for budget moneys as part of the municipal budget (not at an open meeting or public hearing);
• Directly attempting to influence an official’s decision, outside of an established process (“Can we meet for lunch and talk about a new roof for the library?”).

In addition to knowing what is (and isn’t) lobbying, it is important to know who is (or isn’t) a “lobbyist.”

In New York, a lobbyist is “every person or organization retained, employed or designated by any client to engage in lobbying.”

Again, a pretty wide net! Basically, whether a company employs or hires a lobbyist as an independent contractor, or someone volunteers to ask a government official for something on the organization’s behalf, they are a “lobbyist” who has to register and report on their lobbying.

But just as with the definition of lobbying, the NY definition of lobbyist has holes. Here they are: “The term ‘lobbyist’ shall not include any officer, director, trustee, employee, counsel or agent of the state, or any municipality or subdivision thereof of New York when discharging their official duties; except those officers, directors, trustees, employees, counsels, or agents of colleges, as defined by section two of the education law.”

This is a very exciting loophole for public libraries,[5] because it means their officers, directors, trustees, employees, counsels or agents are not lobbyists (although their paid lobbyists are). This can save some registration paperwork and filing.

What “paperwork and filing” can it save?

Well, in New York, every lobbyist who receives in excess of five thousand dollars in reportable compensation and/or expenses per year must register as a lobbyist and file quarterly reports of lobbying activity; this is true no matter what type of organization the lobbyist is working for. But public library employees, officers, and trustees lobbying state and local officials are exempt from being considered “lobbyist”,[6] meaning those people might by lobbying, but they don’t have to individually register.

That said, I have to add two important caveats.

First, while there is a registration exemption for public libraries who only use a director or trustee to lobby in New York, this has no impact whatsoever on the Internal Revenue Code’s bar on excessive use of resources for lobbying purposes.

As the IRS puts it: “In general, no organization may qualify for section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying). A 501(c)(3) organization may engage in some lobbying, but too much lobbying activity risks loss of tax-exempt status.” The IRS then has some “tests” to ensure a 501(c)(3) does not get too close to the danger zone.[7]

Second, this exemption for public library employees and trustees does not apply to federal lobbying, although the annual threshold triggering registration and reporting is higher ($16,000 dollars).[8]

And now we’ll move on to “political activity.”

Here is where things can get tricky, and a lot of people get confused: “political activity,” despite its broad phrasing, is defined by the federal Internal Revenue Service as supporting or opposing a political candidate or party. That is something a 501(c)(3) corporation can never, ever do[9], and is why a public library—or any 501(c)(3) tax-exempt organization—cannot donate to a political action committee (a “PAC”).[10]

And now we’ll move onto something for which (until November 2025) there has been no word or succinct phrase (just a string of case law and advisory opinions)— gepvia.[11]

Gepvia is the use of government resources to tell voters how to vote on a particular issue. Examples include:

• A public library paying for “Vote Yes!” flyers
• A school district public library board voting to issue a “Vote Yes” statement to the public
• Public library property with signs telling people how to vote[12]

Why is “gepvia” forbidden? Because the use of public resources to pay for production and distribution of campaign materials for a partisan cause in any election or referendum has been held to “fall within the prohibition of Article VII, Section 8 of the N.Y. Constitution.”[13]

I know this is a tad complicated,[14] so here is a poem to summarize:

Libraries using tax money

Can pay to lobby and remain sunny.

But a public library boosting its idea

Might be engaging in gepvia.

Meanwhile Section five-o-one-cee-three

Forbids political activity.

And no matter how strong your feeling,

Do not engage in electioneering.

So...

Ask a senator to take action?

The law allows that satisfaction.

Tell the voters how to vote?

Publics can’t get in that boat.

Want to support a candidate?

No library org can participate.

Want to advocate at a polling place?

That’s a crime, give it some space.

And...

For the publics, here’s a handy quote:

“You can hang in the lobby, but don’t tell voters how to vote!”

Thank you for hanging in there on this complicated issue.

To answer this question, we need to leave the hard, unyielding pavement of a clear prohibition (We know that the library cannot say “vote yes.”) and hang out in the weeds.

Which weeds?

Let’s go with:

• The Bullthistle of the Election Law
• The Dandelions of additional definitions
• The Knotweed of particular circumstances

We’ll start with the Bullthistle.

The Election Law

Under the Election Law, a vote on a library budget is a “ballot proposal”[1] and a group of people organized to express an up-or-down opinion on that vote are a “committee.”[2]

A committee that plans to spend under $100 can file form CF-5,[3] and then advocate for the ballot proposition.

But remember, we are walking in bullthistle! Make sure not a penny over $100 is spent.

The Dandelions of additional definitions

With the election law as a backdrop, let’s talk about some definitions.

Association libraries such as the member asking the question are generally a “501(c)(3)” organizations that are barred from “political activity”.

But does this “501(c)(3)” definition and resulting bar from “political activity” mean an association library is barred from promoting a “yes” vote on their budget?

Let’s see what the IRS, in its training video posted here, has to say about that:

Voice 1: As we have seen, a charity may not advocate for or against a candidate for public office.

Voice 2: On the other hand, it may advocate for or against a particular issue as long as that advocacy furthers its mission. Charities may continue to advocate issues during a political campaign, but must not use advocacy as an excuse for, or to double as, political campaign intervention.

Of course, IRS regulations are not the source of the member’s question (I just wanted to get that issue out of the way[4]). The member’s question is: as a largely taxpayer-funded entity, can their association library spend its money on “issue advocacy” in such a way that they might be operating as a committee per the Election Law (as in, expressing an up-or-down opinion on a budget vote)?

This question was addressed in the 1995 case Schulz v. State,[5] which states:

The use of public funds ...to pay for production and distribution of campaign materials for ...a partisan cause in any election falls squarely within the prohibition of N.Y. Const. art. VII, § 8.

Which brings us to the Knotweed.[6]

The Knotweed of particular circumstances

So far, we have reviewed:

• A library of any type may present neutral information and education about a ballot initiative without any restrictions or filing requirements;
• An association library can spend resources on issue advocacy[7] related to its mission;
• That said, if “issue advocacy”, relates to a ballot proposal (like a budget vote) it can turn a corporation or group into a political committee that must report donations and spending;
• Spending any amount of taxpayer dollars on the production or distribution of campaign materials risks being accused of violating the New York State Constitution.

Which means:

1. An association library can remind people to vote on the budget (information & education), no problem.

2. An association library CANNOT use library assets to tell people to “Vote Yes!” on a ballot proposition.

3. A group of people (like some library trustees[8] and their buddies) CAN register as a political committee and tell people to “Vote Yes!” on a ballot proposition.

 Which means we can now step out of the weeds and the member’s questions:

Can we create a Facebook event for the Library Budget Vote, reminding people to vote?

YES, if the Facebook event is truly “information only” (and comments are restricted to not transform it into something else).

In emails, social posts, or other marketing materials reminding people to vote on the library budget, can we use language like: “Your vote matters!” “Library supporters- your vote is critical!”

Ouch. I have to say “no.” To be safe in the tax, legal and public relations arenas, only neutral information and outreach should be generated and distributed using library resources.[9]

BUT, as stated, there is a third option: a political committee that registers, accepts donations,[10] and engages in advocacy specifically for purposes of the budget vote (which doesn’t need to be organized as a “Friends”). 

A great resource on forming such a committee is here. If possible, a local who knows the ins and outs of political committee work would be good for the group to consult with.

While such a committee does take some small initial effort to form and register—and it does have to limit, track and report donations—it can not only engage in advocacy but can create a solid infrastructure for future advocacy going forward.

Thanks for a great question, and sorry if going into the weeds gave you allergies!

This answer applies to an association library, a cooperative library system, or regional library council (e.g. the Western New York Library Resources Council or the Northern New York Library Network).

It can also apply to a chartered museum or historical society.

If you are a public library (municipal, special district, school district) or a consolidated/confederated library system, feel free to read along for fun[1]...but this does not apply to you, since there are some extra things to consider before such an entity directly engages[2] in activity that looks/acts/smells like lobbying.

But speaking of "looks/acts/smells like lobbying"... what is "lobbying"?

By law[3], "lobbying" is "any attempt to influence":[4]

(i) the passage or defeat of any legislation or resolution by either house of the state legislature including but not limited to the introduction or intended introduction of such legislation or resolution or approval or disapproval of any legislation by the governor;

(ii) the adoption, issuance, rescission, modification or terms of a gubernatorial executive order; (iii) the adoption or rejection of any rule or regulation having the force and effect of law by a state agency;

(iv) the outcome of any rate making proceeding by a state agency;

(v) any determination: (A) by a public official, or by a person or entity working in cooperation with a public official related to a governmental procurement, or (B) by an officer or employee of the unified court system, or by a person or entity working in cooperation with an officer or employee of the unified court system related to a governmental procurement;

(vi) the approval, disapproval, implementation or administration of tribal-state compacts, memoranda of understanding, or any other tribal-state agreements and any other state actions related to Class III gaming as provided in 25 U.S.C. § 2701, except to the extent designation of such activities as “lobbying” is barred by the federal Indian Gaming Regulatory Act, by a public official or by a person or entity working in cooperation with a public official in relation to such approval, disapproval, implementation or administration;

(vii) the passage or defeat of any local law, ordinance, resolution, or regulation by any municipality or subdivision thereof;

(viii) the adoption, issuance, rescission, modification or terms of an executive order issued by the chief executive officer of a municipality;

(ix) the adoption or rejection of any rule, regulation, or resolution having the force and effect of a local law, ordinance, resolution, or regulation; or

(x) the outcome of any rate making proceeding by any municipality or subdivision thereof.

So, "lobbying" is attempting to influence various decisions and actions of state and local government. 

And although the above list doesn't say it, lobbying can be done either by a contractor retained by an organization, an employee of the organization, or through the "grassroots" work of an organization.

With all that said....

YES, a non-profit entity chartered by NYSED (including a university, college, museum, historical society, library, library system, or library council) can hire a lobbyist to advance their interests at New York's state capital, or at the local level, through lobbying. 

That said, before hiring or employing a person to lobby at the state or local level[5], there are some important things to consider.

First, an organization should familiarize itself with the many requirements imposed on lobbying entities in New York (basically, on lobbyists and their clients).

As of October 10, 2023, the state has a helpful guide on those requirements—which are so extensive I would exceed my "Ask the Lawyer" word count[6] if I tried to even summarize it—is posted here: https://ethics.ny.gov/lobbying-overview.

Of those requirements, one of the most significant is this: for any organization that will spend more than $4,999.99 on lobbying during a calendar year (not just on one lobbyist, but overall lobbying activities), there are some routine reporting requirements.  So before signing a contract with a lobbyist or lobbying firm, or budgeting for employee or organizational resources for lobbying, a governing board should consider what is needed to both comply with the law and get the most out of a lobbying relationship and activities.[7]

From these requirements spring some "considerations".  The big ones are:

• All lobby firms or lobbyists hired must be registered with the state[8];
• All lobbying contractual agreements and reporting must meet precise regulatory requirements[9];
• A client spending more than $4999.99 a year on lobbying must file a semi-annual report to the New York State Commission on Ethics and Lobbying in Government (due every July 15th and January 15)[10] which requires creating a login and developing a profile https://my.ny.gov
• Once triggered, the duty to self-report lobbying activity may also include "direct lobbying" (lobbying by employees of the organization)
• The CEO of the organization hiring the lobby firm must attend mandatory ethics training (see https://ethics.ny.gov/information-mandated-ethics-training-requirement-lobbyists-and-clients)
• The objectives of lobbying should be clear and the decision to spend resources on lobbying should be re-evaluated at least annually (when the budget is approved).

In other words: while the benefits can be immense, the decision to retain a lobbyist—or to in any way spend at least $5,000.00 annually on lobbying—comes with added obligations.  Responsibility for meeting those obligations should be assigned with clarity and monitored routinely.

Which means that any organization engaging in lobbying OR employing employees who lobby should have a policy on lobbying.

As readers know, at "Ask the Lawyer," when we say "you should have a policy" we provide a template policy. 

Of course, as with all templates, this template should be reviewed by your own legal counsel and customized to your institution's own operations.  

But it is a good place to start.

Here it is:

To ensure compliance with state and federal lobbying law and regulations, any lobbing done on behalf of the NAME ("Organization") will follow this policy and procedure.

Before passing such a policy, a board should review the guidance linked in the footnotes, and make sure the organization is set up to comply with the requirements.  Whenever possible, having a local attorney review the final version before it is adopted is a wise idea.

Thank you for a great question.  May all your visits to state and local officials be cordial, helpful, and productive!