Legal Memo on Foundations Engagement on the Census

A message from Gary Bass, former Executive Director of the Bauman Foundation and Chair of Census Equity Initiative:

This legal opinion, written for the Bauman Foundation, a private foundation, may be useful as a roadmap for other private foundations promoting a fair and accurate census. “In short, the only census activities the Bauman Foundation itself should avoid undertaking are those that involve lobbying,” wrote Beth Kingsley, a national expert on nonprofit tax law and co-chair of the subcommittee on Politics and Lobbying Activities of the Exempt Organizations Committee of the American Bar Association Tax Section.

Written in 2018, the memo still applies today. Private foundations are permitted to make grants or otherwise engage in litigation (such as over the inclusion of a citizenship question), convey ideas for ways the Census Bureau should implement the census, respond to public comment periods, support public education, research, and “Get Out the Count” activities.

Feel free to share this memo 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 encourage persistently undercounted populations to fill out their 2030 Census form and the American Community Survey.

Here are five toplines from the memo:

1. 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.
2. Lobbying is defined as an attempt to influence legislation at any level of government. This includes asking Congress or state legislatures for census funding or to support or oppose bills that shape census operations. 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 also may engage in the work themselves.
3. 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 to how organizations conduct their work.
4. The Census Bureau periodically will invite public comments on the American Community Survey or 2030 Census policies and operations. 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.
5. Private foundations may circulate non-lobbying information about the American Community Survey and the 2030 Census to their grantees. They may also fund litigation, be a party to the litigation, or file an amicus brief. There are other permissible activities that funders may support to help get those who are persistently undercounted to fill out the 2030 census.