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Guidance on the use of appropriated funds by NIH and its recipient for advocacy, lobbying, and related activities.
Background
Language included in Section 503 of Division F, Title V, of the FY 12 Consolidated Appropriations Act (P.L. 112-74, excerpted below, and continued in effect through annual appropriations to date), reinforces and (in selected respects) expands long-standing statutory and other provisions governing the use of appropriated funds by NIH and its recipients for advocacy, lobbying, and related activities. These long-standing provisions include allowable cost requirements in Office of Management and Budget (OMB) Circular A-21: Cost Principles for Educational Institutions, 2 C.F.R. Part 220; OMB Circular A-87: Cost Principles for State, Local, and Indian Tribal Governments, 2 C.F.R. Part 225; and OMB Circular A-122: Cost Principles for Non-Profit Organizations, 2 C.F.R. Part 230.
The discussion below provides a general overview of lobbying restrictions on the work of NIH recipients, along with examples of restricted and permissible activities. The examples are provided for illustrative purposes, but should not be regarded as definitive legal guidance, as they may not apply to the specific circumstances of the work of any specific recipient. Each recipient's designated NIH grants management officer(s) and/or program official(s) will be available to further discuss the impact of these restrictions on the recipient's work and to facilitate compliance.
As a renewed expression of Congressional intent, Section 503 serves as an important reminder of limits on lobbying activities using Federal funds that have always governed NIH recipients. These parameters have enabled NIH and its public health partners to advance a strong public health agenda, and the new language continues to enable many of these same activities. Overview of Application of Section 503 to NIH Recipients General examples of allowable and restricted activities are included in the material and links below. For further guidance on the applicability of Section 503 to NIH recipients please see NIH Guide Notice NOT-OD-12-034.
What is allowed?
- State and local agencies funded by NIH are permitted to work directly on policy-related matters across their equivalent branches of state or local government. This derives from language in Section 503 permitting communications through a normal and recognized executive-legislative relationship, and permitting a recipients to participate in policymaking and administrative processes within the executive branch of their state or local government, if within these boundaries.
- Non-government entities funded by NIH may also engage in a range of policy-related activities. However, these non-governmental entities do not have recognized executive- legislative relationships, and their allowable activities using Federal funds are therefore more constrained than state and local government recipients. The most relevant description of allowable activities is that which applies to non-profit institutions under the Internal Revenue Code (IRC), inasmuch as non-profit recipients generally are bound by those limits in order to maintain their tax-exempt status. Therefore, the obligation to comply with the provisions in the IRC greatly limits recipient participation in certain activities.
- Although they cannot engage in direct or indirect activities defined as lobbying, non- government recipients can undertake a range of other activities. Those activities, when conducted within applicable limitations, include highlighting and translating public health evidence; collecting and analyzing data; publishing and disseminating results of research; implementing prevention strategies; conducting community outreach services; fostering coalition building and consensus on public health initiatives; providing leadership and training, and fostering safe and healthful environments.
What is prohibited?
Federally-funded lobbying, either directly or indirectly (i.e., "grassroots lobbying), is prohibited by law:
- Grassroots lobbying: No appropriated Federal funds can be used by NIH recipients for grassroots lobbying activity directed at inducing members of the public to contact their elected representatives to urge support of, or opposition to, proposed or pending legislation or appropriations or any regulation, administrative action, or order issued by the executive branch of any Federal, state or local government. Recipient communications from which an external audience may infer that it should contact legislators concerning specific legislation should be considered carefully because they may run afoul of the prohibition, unless the communications fall within certain recognized exceptions to the definition of "lobbying" or "influencing legislation." It is this restriction on grassroots lobbying that prevents recipients' calling upon the public to take action and direct efforts on the part of recipients to encourage participation by others in advocacy.
- Direct lobbying by recipients: Except in certain cases of state and local government communication, as part of their normal and recognized executive-legislative relationships, as discussed above, recipients are restricted from using Federal funds to attempt to influence deliberations or actions by Federal, state, or local legislative or executive branches. This includes communications to a legislator or executive official that refer to and reflect a view on specific measure (legislative or executive).
What changed for FY 2012?
- While historical restrictions have applied only to legislative matters, the new language restricts the same kind of lobbying when directed to executive actions - including regulations, administrative actions, or Executive Orders.
- The restrictions were amended to specifically cover activities funded by appropriations transferred from the Prevention and Public Health Fund established by the Affordable Care Act.
- There are new statutory restrictions on lobbying at the local level. The provisions now prohibit lobbying directed at city councils, county commissions, and other local legislative bodies, and regulations and administrative orders issued by state and local executive branch officials.
- Congress in Section 503(c) made clear that the lobbying restrictions outlined above are intended to apply to advocacy related to proposed or future tax increases or restrictions on any legal consumer product. Impermissible types of lobbying activity described in Section 503(c) are generally restricted by other provisions in the newly revised Section 503. However, recipients and contractors should pay close attention to this new language in Section 503(c).
Examples of Legally Allowable and Restricted Activities: State and Local Government Recipients
The discussion below provides a general overview of allowable and restricted activities. The interpretation and examples should not be regarded as definitive legal guidance, as the examples cover broad areas of activities, and may not apply to the specific facts and circumstances of the work of NIH's state and local government recipients.
Allowable Activities Using NIH Appropriated Funding
- Educating the public on personal health behaviors and choices.
- Research on policy alternatives and their impact.
- Working with other agencies within the executive branch of their state or local governments on policy approaches, and on implementation of policies.
- Educating the public on health issues and their public health consequences.
- Educating the public on the evidence associated with potential policy solutions to health issues.
- Working with their own state or local government's legislative body on policy approaches to health issues, as part of normal executive-legislative relationships.
- All other allowable activities noted below under "Non-Government Recipients."
Restricted/Non-Allowed Activities Using NIH Appropriated Funding
Federally-funded lobbying activities are prohibited, including:
- Encouraging the public or other entities to support or oppose specific action proposed or pending before the Federal government, including the US Congress, often referred to as grassroots lobbying.
- Encouraging the public or other entities to support or oppose specific legislation or executive action proposed or pending before the state or local government, often referred to as grassroots lobbying.
- Direct lobbying of the US Congress.
- Direct lobbying of a state or local legislature, other than certain communications in the course of normal executive-legislative relationships.
- Advocacy to perpetuate or increase their own funding from the Federal government (Byrd Amendment).
Examples of Legally Allowable and Restricted Activities: Non-Government Recipient
The discussion below provides a very general overview of allowable and restricted activities. The interpretation and examples should not be regarded as definitive legal guidance, as they may not apply to the specific circumstances and facts surrounding the work of NIH's non-government recipients. Lastly, the below examples contain caveats and advice that may mirror regulations or rules governing tax-exempt organizations. These should only be viewed as examples and guidance concerning one settled understanding of what "lobbying" and "influencing legislation" mean.
Allowable Uses of NIH Appropriated Funding
Many non-profit recipients, in order to retain their tax-exempt status, have long operated under settled definitions of "lobbying" and "influencing legislation." These definitions are a useful benchmark for all non-government recipients, regardless of tax status. Under these definitions, recipients are permitted to prepare and disseminate certain (1) nonpartisan analysis, study, or research reports; (2) examinations and discussions of broad social, economic, and similar problems in conferences and reports; and (3) information provided upon request by a legislative body or committee for technical advice and assistance. Along these lines, analysis, study, or research should contain a balanced, objective exposition of the facts to enable the public or an individual to form an independent opinion or conclusion. Materials must be posted or circulated widely to a diverse and numerous audience on a nonpartisan basis and must not contain an overt "call to action."
Examples include:
- Educating the public on personal health behaviors and choices.
- Conducting research on policy alternatives and their impact.
- Conducting educational campaigns that explain both the advantages and disadvantages of certain public policies or that demonstrate the efficacy and possible ineffectiveness of certain measures, as long as those communications are widely disseminated, balanced in their analysis, and avoid an express call to action with respect to specific legislation.
- Compiling and communicating the results of research on health issues and policy approaches that have successfully addressed them (e.g., presenting evidence on rates of injury associated with mandatory bike helmet laws and the extent to which different approaches may be more or less effective at preventing injuries based on the evidence). Such communication should contain a balanced view of the evidence that allows the public to form an independent opinion or conclusion.
- Upon formal, written request, providing public officials with technical advice or assistance concerning evidence of program or policy effectiveness (e.g., an NGO funded wholly by a NIH grant may respond to a county commission's written request to provide technical assistance to the county commission on a draft ordinance banning smoking in public buildings).
- Educating the public with examples of best practices or success stories across states or localities. Such communication should contain a balanced view of the evidence that allows the public to form an independent opinion or conclusion.
- Identifying and broadly disseminating balanced, objective evidence on options and alternatives for legislative or executive actions that would achieve a policy outcome (e.g., identifying and ranking effectiveness of policy options based on scientific evidence); provided the communications do not refer to specific legislation or administrative action, do not state a point of view on that legislation or action, and do not make an explicit "call to action" encouraging the public to contact the legislative or executive body responsible for passing the law or issuing the order.
- Identifying approaches for tracking and evaluating implementation of policy actions.
- Compiling and sharing best practices and success stories from jurisdictions adopting policy approaches, provided such tools are not designed as a call to action on a proposed or pending matter or are a "how-to guide" for lobbying.
- Broadly sharing balanced, objective information across large groups of interested parties (such as groups of other NGOs or state/local governments), e.g., meeting with an association of state or local education agencies to highlight evidence-based policy approaches to improve healthy choices in school lunches. This information may not make an explicit call that such policy approaches be adopted.
- Developing information to inform the public on potential policy solutions and their impact (e.g., balanced, objective materials designed to educate community groups or the public on the extent to which policies such as healthy food choices and indoor air quality policies can lead to health improvements). Communications should be designed to allow individuals and the public to form an independent conclusion.
- Communicating with the public about health issues and potential policy solutions (e.g., undertaking community outreach, media, or other campaigns designed to broadly disseminate the information described in the preceding example).
- Working with private sector organizations to achieve institutional or systems changes that do not require governmental or executive action.
- Communicating with the public about health risks and their consequences, provided that they do not include in these communications a call for the public to engage in the policy process.
Restricted/Non-Allowed Uses of NIH Appropriated Funding
Federally-funded lobbying activities are prohibited:
- Direct lobbying in support (or in opposition) to a matter proposed or pending before a legislature, including a state or local legislature or the US Congress, or to a proposed or pending decision by an executive agency (including regulations, executive orders, or other administrative action).
- Presenting materials relating to public policies that may require legislative or executive action that do not include an objective, balanced presentation of evidence.
- Presenting materials relating to public policies that may require legislative or executive action that are only made available to allies or a narrow or selective audience.
- Developing and/or disseminating materials that exhibit all three of the following characteristics: (1) reference to specific legislation or other order; (2) reflecting a point of view on that legislation or other order; and (3) containing an overt call to action.
- Encouraging the public or other entities to support or oppose specific action proposed or pending before the US Congress, also referred to as grassroots lobbying.
- Encouraging the public or other entities to support or oppose specific legislation or executive action by a state or local government, also referred to as grassroots lobbying.
- Advocating to perpetuate or increase their own funding from the Federal government (Byrd Amendment).
The descriptions are a general summary based on tax law exceptions to the definition of "lobbying" and "influencing legislation." Consequently, recipients are referred to the Internal Revenue Code and implementing regulations for a complete statement of applicable requirements. Recipients may wish to consult their tax and/or accounting advisors for assistance. Note also that recipient activities are not restricted under Section 503 if recipients use funding sources other than Federal appropriations for those activities. At the same time, recipient activities may be limited by state law or other applicable restrictions.
Additional Resources
Section 503, Division F, Title V, FY 12 Consolidated Appropriations Act (P.L. 112-74 and continued in effect through annual appropriations to date)
(a) No part of any appropriation contained in this Act or transferred pursuant to section 4002 of Public Law 111-148 shall be used, other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes, for the preparation, distribution, or use of any kit, pamphlet, booklet, publication, electronic communication, radio, television, or video presentation designed to support or defeat the enactment of legislation before the Congress or any State or local legislature or legislative body, except in presentation to the Congress or any State or local legislature itself, or designed to support or defeat any proposed or pending regulation, administrative action, or order issued by the executive branch of any State or local government, except in presentation to the executive branch of any State or local government itself.
(b) No part of any appropriation contained in this Act or transferred pursuant to section 4002 of Public Law 111-148 shall be used to pay the salary or expenses of any grant or contract recipient, or agent acting for such recipient, related to any activity designed to influence the enactment of legislation, appropriations, regulation, administrative action, or Executive order proposed or pending before the Congress or any State government, State legislature or local legislature or legislative body, other than for normal and recognized executive-legislative relationships or participation by an agency or officer of a State, local or tribal government in policymaking and administrative processes within the executive branch of that government.
(c) The prohibitions in subsections (a) and (b) shall include any activity to advocate or promote any proposed, pending or future Federal, State or local tax increase, or any proposed, pending, or future requirement or restriction on any legal consumer product, including its sale or marketing, including but not limited to the advocacy or promotion of gun control.