THE EU NEEDS TO BETTER CLARIFY LOBBYING EXCEPTIONS

The following are (or should be) exceptions to lobbying. They are not (or shouldn't be) considered lobbying activities:

1. Nonpartisan, Analysis, Study or Research: The communication must be nonpartisan, contain a 'sufficiently full and fair exposition of the pertinent facts to enable the recipient to form an independent opinion or conclusion'. The communication must also be widely distributed (not only to persons interested in one side of the issue). The communication may not include a 'direct call to action'. Engaging in nonpartisan analysis, study, or research and making the results of this work available to the general public or to government bodies, officials, or employees is not carrying out propaganda, or otherwise attempting to influence legislation. Nonpartisan analysis, study or research means an independent and objective exposition of a particular suject, including activities that qualify as educational activities. A mere presentation of unsupported opinion does not qualify as nonpartisan analysis, study, or research. A private foundation or association may choose any suitable means, including oral and written presentations to distribute the results of its non-partisan analysis, study, or research, with or without charge. This may include distribution of reprints of speeches, articles, and reports, presentation of information through conferences, meetings and discussions, and dissemination to the news media, including radio, television, and newspapers, and to other public forums. These presentations may not be limited to or directed towards persons who are interested only in one side of a particular issue.
2. Technical Advice or Assistance: Responding to written requests from a legislative body, committee or subdivision (not a single legislator or informal group of legislators) for technical advice or assistance on pending or potential legislation is not lobbying. The communication must be made available to every member of the body. Opinions are acceptable as long as specifically requested by the body or related to materials requested by the body.
3. Organisation Self-Defence: Communication with a legislative body or an individual legislator. It must be regarding one of four areas: existence of the organisation; powers and duties of the organisation; tax-exempt status of the organisation; or deductibility of contributions to the organisation. By contrast, a communication supporting the organisation's programmes or mission generally will not qualify as self-defence.
4. Examination of Broad Social Issues: Communication regarding a general subject; which may also be subject of specific legislation. The communication cannot address the merits of a specific legislative proposal. It also cannot involve a direct call to action.
5. Some direct communications: Direct communications with legislators or their staff where there is either (i) no reference to a specific legislative proposal or (ii) no view expressed on a such a proposal are not lobbying.
6. Certain communications with the general public: Communications with the general public where there is (i) no reference to a specific legislative proposal; (ii) no view expressed on such a proposal; or (iii) no call to action are not considered lobbying.
7. Some communications with executive or administrative officials: Communications with executive or administrative officials or their staff where (i) there is no reference to a specific legislative proposal; (ii) no view is expressed on such a proposal; or (iii) the official or staff person will not participate in the formulation of legislation are not lobbying.
8. Attempt to influence regulations or other administrative or executive action: Attempts to influence regulations or other administrative or executive action (including those that are implementing legislation) are not considered lobbying, even if the recipient of the communication is a legislator. This is because the action sought is not itself legislation.
9. Litigation activity: Communication made as a party to litigation are not lobbying.
10. Discussion on broad policy issues: Discussion of broad policy issues requiring a legislative solution are not lobbying, so long as the merits of the specific legislation are not discussed.
11. Communications by grantee to its members: Communications by a grantee to its members about specific legislation of direct interest to the grantee are not considered lobbying, as long as there is no direct call to action.
12. Personal activity of members on own time: Personal activity of foundation or grantee directors, trustees, employees or volunteers is not lobbying, as long as it is on their own time, at their own expense and does not use the organisation's resources or name.

Call for Action Definition: A specific means of encouraging the communication’s recipient to take lobbying action. A call to action must comprise one of the following actions: 1) tell the recipient to contact a legislator; 2) provide information on how the recipient can contact his legislator, such as providing the phone number or address; 3) provide a mechanism for enabling the recipient to contact his legislator, such as a postcard, petition, or email form; or 4) identify a legislator who will vote on the legislation as being opposed to or undecided about the organisation’s view on the legislation, a member of a legislative committee who will vote on the legislation, or the recipient’s legislator.

Questions

1. Does the activity involve expressing the organisation's views?
2. Is it on a specific legislative or administrative proposal?
3. Does it involve only action by an administrative body?
4. Is it a full and fair exposition of the facts, with no direct call to action?
5. Is it a response to a written request from a legislative committee or government body?
6. Does the issue affect the legal existence, powers, duties or tax-exempt status of the organisation, or the deductibility of contributions to it?
7. Is it a communication to the public or to members without a specific call to action?
8. Is a communication to a legislative or other government official?
9. Is it a communication to members directly encouraging them to contact legislative or other government officials?
10. Does it contain a call to action to activate the public, or does it come under the mass media or subsequent use rules?