December 2023: AESA State Examiner

Advocacy v. Lobbying:  Knowing the Difference and Maximizing Impact

What is advocacy, and how is it different from lobbying? And what can, or can’t, Educational Service Agencies (ESAs) do as it relates to these two important strategies? The answer to these questions is relatively straightforward. But, as is often the case, it is nuanced, and lobbying laws can vary from state to state. The December AESA State Examiner seeks to bring clarity to an often misunderstood set of issues around this topic.

Advocacy and lobbying are both strategies used to influence public policy and decision-making, but they differ in their approach, scope, and legality.

Advocacy involves raising awareness and promoting a particular cause, often seeking to change public opinion and create social change. It encompasses a wide range of activities, such as public education campaigns, grassroots organizing, and media outreach. Advocates aim to create a supportive environment for their cause by engaging with the public, mobilizing supporters, and generating public discourse. Education and awareness building are at the heart of advocacy.

Lobbying, on the other hand, is a more focused, intentional, and direct approach to influencing action by government officials, legislators, or policymakers to support specific policies, legislation, or regulatory changes. Organizations, corporations, or interest groups often employ lobbyists like state education associations to communicate their interests to government decision-makers. This can involve providing information, research, and data to support their positions, as well as making persuasive arguments to sway the decision-making process in favor of their members or clients.

One key distinction between advocacy and lobbying lies in the level of involvement in the policymaking process. Advocacy is more encompassing, targets the broader public, and aims to change societal attitudes through education and awareness building. In contrast, lobbying operates within the realm of government and focuses on influencing outcomes either legislatively or via regulation. Advocacy is generally more open and inclusive, while lobbying can sometimes involve more behind-the-scenes efforts and interactions.

Legally, advocacy is protected under freedom of speech and expression, allowing individuals and groups to voice their opinions and concerns. Advocacy is a right protected under the 1^st amendment of the United States Constitution, which states, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Lobbying, however, often involves more direct interaction with government officials, which can lead to regulations and disclosure requirements to ensure transparency and prevent corruption. Every state has laws and regulations that define lobbying and set the guidelines and parameters that oversee this activity.

In Texas, for example, the Texas Ethics Commission defines lobbying as direct communication and preparation for direct communication with a member of the legislative or executive branch to influence legislation or administrative action. Texas Government Code Chapter 305, also known as the Texas Lobby Law, requires a person to register as a lobbyist after exceeding statutory threshold amounts of expenditures or compensation related to lobbying activities. More importantly, state agencies and Educational Service Centers (ESCs) in Texas are prohibited from funding or engaging in direct lobbying.

In instances like this, while direct lobbying by ESAs may be prohibited, advocacy becomes an important strategy, as do tactics like coalition building and leveraging cross-sector partnerships with those who can influence policy decisions directly. It is always important to consult legal counsel and the appropriate state agency regulating lobbying in one’s respective state to ensure compliance before engaging in such activity or hiring an independent lobbyist or firm.

Individuals and public organizations are not the only ones who have questions about what restrictions they may have related to lobbying. State associations and related nonprofits representing education interests are often confused about what they can or cannot do under federal and state laws without threatening their nonprofit status.

Nonprofit organizations, while primarily focused on serving charitable or social causes, can engage in lobbying activities to advocate for their missions and promote policy changes aligned with their objectives. However, some legal limitations and regulations guide the extent to which nonprofits can participate in lobbying without jeopardizing their tax-exempt status.

In the United States, for example, nonprofit organizations are categorized as either 501(c)(3), 501(c)(4), or 501(c)(6) entities, each with different rules regarding lobbying. 501(c)(3) organizations, which include charitable and educational organizations, are subject to more stringent limitations on lobbying. 501(c)(3) organizations can engage in some level of lobbying but must adhere to specific restrictions to ensure that lobbying activities do not become their primary focus and do not jeopardize their tax-exempt status.

On the other hand, 501(c)(4) organizations, often known as social welfare organizations, have more flexibility in lobbying activities. 501(c)(4) organizations can engage in a substantial amount of lobbying if it is related to their social welfare mission. However, even 501(c)(4) organizations must be cautious not to engage in excessive lobbying, as this might still impact their tax status.

501(c)(6) organizations, inclusive of business leagues, chambers of commerce, boards of trade, and related organizations, may engage in lobbying that is germane to accomplishing its tax-exempt purpose without jeopardizing its exemption. However, if a 501(c)(6)  engages in political and/or lobbying activities, it may need to notify members of dues used for such activities and track and report lobbying expenditures, including direct expenses and the value of staff time devoted to lobbying activities.

As is the case for public entities, nonprofits are wise to check with legal and financial counsel before embarking on lobbying campaigns.

For ESAs and the organizations that represent them, the distinction between advocacy and lobbying remains important as they work to strike a balance between advocating for change and complying with regulations that govern the ability to impact government decision-making. Understanding these two separate but related strategies is important to raising awareness and advancing policy priorities that drive change for students and schools.

SHARE YOUR ADVOCACY SUCCESS STORIES

AESA would like to highlight successful state-level advocacy campaigns. Share your triumphs in state advocacy with fellow members! Contribute to our newsletter by submitting your success stories – your experiences can enlighten and inspire others in navigating the often complex landscape of state advocacy. Together, we can amplify our collective knowledge for the benefit of the entire AESA membership. Send your stories to jwade@aesa.us.