Bill No. A. 10742/S. 8160, introduced during the final hours of the spring legislative session and signed into law by Governor Andrew Cuomo, requires 501(c)(3) organizations to publicly disclose the identities of certain donors if those 501(c)(3) organizations make donations to 501(c)(4) organizations engaged in significant lobbying in New York.  These new disclosure requirements will take effect on November 22, 2016.

The new law also changes existing disclosure requirements applicable to 501(c)(4) organizations that lobby in New York.  The changes to these existing disclosure requirements went into effect on September 23, 2016.

Background

Under prior law, any 501(c)(4) organization that engaged in certain amounts of lobbying in New York was required to file a semi-annual “source of funding” disclosure report with the New York Joint Commission on Public Ethics (“JCOPE”).  Specifically, this filing requirement was triggered if, during either the calendar year or the 12-month period prior to the date of the report, (a) the 501(c)(4) organization spent over $50,000 on lobbying in New York and (b) the 501(c)(4) organization’s New York lobbying expenditures constituted at least 3% of the organization’s total expenditures.

The source of funding report required covered 501(c)(4) organizations to disclose to JCOPE the name of and amounts received from each donor that gave the organization over $5,000, where such funds were used to fund the reported lobbying activities.  However, 501(c)(4) organizations were not required to report any donor that was a 501(c)(3) organization registered to fundraise with the New York Attorney General’s Charities Bureau.

New Disclosure Requirements

501(c)(4) Organizations: Under the new law, the New York lobbying expenditure amount that triggers a source of funding report has been lowered to $15,000 (down from $50,000).  Additionally, the source of funding report must now name each source of funding that contributed over $2,500 (down from $5,000) where such contribution was used to fund lobbying, as well as the amount of the contribution.  There is no longer an exception for disclosure of donors that are 501(c)(3) organizations.  (The only exception to such disclosure relates to membership fees: 501(c)(4) organizations are not required to disclose amounts contributed that constitute membership fees, dues, or assessments, though they must still disclose the names of any organizations that contributed such fees, dues, or assessments.)

501(c)(3) Organizations: An entirely new funding disclosure obligation has been imposed on 501(c)(3) organizations.  Any 501(c)(3) organization that, during the six-month period from January 1 to June 30 or from July 1 to December 31 of a particular year, makes in-kind donations (including, but not limited to, donations of funds, staff, staff time, personnel, offices, office supplies, financial support of any kind, and any other resources) of over $2,500 to a 501(c)(4) organization required to file a source of funding report is now required to file a funding disclosure report for the relevant six-month period with the New York State Attorney General’s Charities Bureau.

The funding disclosure report for a 501(c)(3) organization must include:

• the names and addresses of both the covered 501(c)(3) organization and any 501(c)(4) organization that received or benefited from any in-kind donation from the 501(c)(3) organization in excess of $2,500 during the applicable six-month period;
• the names of any individuals who have operational or managerial control over the 501(c)(3) organization;
• the date upon which the in-kind donation was made to the 501(c)(4) organization; and
• most significantly, the identity of any donor who donated over $2,500 to the 501(c)(3) organization within the applicable six-month period, and the date upon which such donation was made. (Note that these donations need not have any connection to the in-kind donations to 501(c)(4) organizations that trigger the funding disclosure report requirement.)

The funding disclosure report must be filed with the Charities Bureau within thirty days of the close of the applicable six-month reporting period.  Thus, the deadline for the report is either January 30 or July 30.

Publication of Donor Information      

The new law requires the Charities Bureau to send funding disclosure reports received from 501(c)(3) organizations to JCOPE for publication on JCOPE’s website.  Consequently, under the new law, the identity of every donor that gives more than $2,500 during an applicable six-month period to a 501(c)(3) organization required to file a funding disclosure report will be publicly disclosed.  This disclosure will be made regardless of whether or not that donor had any knowledge that the 501(c)(3) organization made sufficient in-kind donations to a 501(c)(4) organization, or whether or not the donor intended for his or her donation to be used to support the 501(c)(4) organization’s lobbying activities – and even though the donor’s name would not otherwise be made publicly available on the 501(c)(3) organization’s Form 990 or in connection with the New York State CHAR 500 (or other applicable state filings).

Protecting Donors’ Privacy   

There is one potential way to avoid the publication of a 501(c)(3) organization’s funding disclosure report.  If the New York Attorney General determines, based on a review of the relevant facts presented by the 501(c)(3) organization, that disclosure of donations to the 501(c)(3) organization may cause harm, threats, harassment or reprisals to the donor or to individuals or property associated with the donor, the Attorney General may decide not to make such disclosure public.  If the Attorney General determines that the disclosure would not cause any such harm, the 501(c)(3) organization, pursuant to pending regulations, can appeal the Attorney General’s determination to an independent judicial hearing officer, and the identities of the relevant donors will not be disclosed pending the final outcome of the appeal.

Regulations

JCOPE has published proposed emergency regulations, effective September 23, 2016, governing the new source of funding report requirements for 501(c)(4) organizations.  The Charities Bureau has not yet issued regulations on the funding disclosure reports for 501(c)(3) organizations, nor has it issued guidance on how 501(c)(3) organizations may request nondisclosure of donations.

Considerations

In anticipation of these new disclosure requirements, 501(c)(3) organizations should ask 501(c)(4) organizations to which they provide in-kind donations whether they are required to file source of funding reports as described above.  501(c)(3) organizations may also research this question by searching the JCOPE Source of Funding Disclosures Database, though the database does not yet reflect source of funding reports filed pursuant to these new rules.

Additionally, Section 501(c)(3) organizations that make in-kind contributions to 501(c)(4) organizations should review the new disclosure requirements to determine whether any preparation is required before the effective date and the first filing deadline (January 30, 2017), including determining whether the requirements raise any donor privacy concerns that should be addressed in advance.

We will keep you posted on further developments.