Lobbying

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.

It can be a fact as shocking as learning that there are no “Berenstein Bears”:[1] a public library or library system—or even a town or a village—can engage directly in lobbying.

A public library, library system, or municipality can also join a membership organization that uses funds from its dues to engage in lobbying.[2]

Now, it is important to not confuse lobbying with political activity, political donations, electioneering, or telling regular voters (not lawmakers) how to vote on a particular item. Those are forbidden to any quasi-governmental organization, and all but the last one (telling voters how to vote[3]) are forbidden for association libraries and other private nonprofit organizations, too.

“Lobbying”—which any library organization of any type can do or pay another entity to do on its behalf—is an activity that is defined by state and federal law, and it means directly asking government officials for things,[4] such as:

• A budget item
• A new law
• A change to the law
• Voting against something
• Changing the enforcement or interpretation of something

Lobbying involves direct contact with a government official… not testimony at a hearing, not demonstrating in front of a building, and not attending an open meeting to make an ask or presentation (activities many people call “advocacy”).

For readers who are taking this in and having a Berenstain Bears Moment (“It can’t be true!”) about tax-funded entities lobbying, try this exercise: If an organization is lobbying or hiring lobbyists in New York, you can look up its reporting here. Search the database for “town” or “school district” and you will see many towns and other taxpayer-funded entities engaging in lobbying.

Basically, if a taxpayer-funded entity has decided that lobbying is in the best interests of the organization, the expenditure is legal.[5] As long as all the lobbying registration and reporting requirements are met and not too much money is spent on the lobbying, all will be well.[6]

So yes, a public library or library system can use budget moneys derived from taxpayer revenue to hire a lobbyist or pay dues to an organization doing advocacy/lobbying.

For more information on the difference between lobbying, political activity, advocacy, and gepvia,[7] please see this longer, more detailed RAQ.