New York Attorney General Eric Schneiderman announced today that he has adopted regulations requiring non-profits engaging in certain electioneering activity in New York, including 501(c)(4) organizations, to disclose their donors.  We previously wrote on the proposed rules, which after a series of public hearings, have been slightly modified and adopted by the Attorney General.  The new regulations are effective immediately.

The new regulations require organizations that make more than $10,000 in expenditures in New York elections to disclose on an annual financial report (1) election-related expenditures over $50, and (2) information about donors who gave $1000 or more to the organization that year.  The donor disclosure threshold increased from $100 in the proposed rule and the $50 expenditure threshold was added.

Election-related expenditures.  The regulations require these covered organizations to disclose detailed information about communications that contain express advocacy as well as communications that contain “election targeted issue advocacy.”  The latter is similar to “electioneering communications” on the federal level, but covers communications that run within 45 days of a primary election and 90 days of a general election and refer to, or feature the image or voice of, a clearly identified candidate, or refer to a political party, constitutional amendment, or any other question put to the voters in that election.  The 45/90 day window was reduced from 180 days in the proposed rule, but is still broader than the 30/60-day window for federal electioneering communications.

Donor Disclosure.  The regulations also require covered organizations to disclose detailed information about donors who gave $1000 or more to the organization during the year.   The new regulations attempt to allow an organization to limit the scope of this disclosure.  While the language of the proposed rule applied to any contribution made to the organization “that is available to be used for a New York election related expenditure,” the new regulations cover any contribution to the organization unless “the donation is deposited into an account the funds of which are not used for making New York election related expenditures.”

A few additional notes on the new regulations.  In discussing the proposed rules, we noted that the potential reach of the proposed rule was unclear.  The pertinent statutes on which the AG relies regulate “charitable organizations.”  In an existing rule, but a rule that has apparently not been the subject of a serious challenge, the AG has interpreted the statutes to include 501(c)(4) social welfare organizations.  If there was any previous ambiguity, the AG’s press release announcing the adopted regulations makes clear that the purpose of these rules is indeed to require 501(c)(4) organizations to disclose their donors and expenditures.

In addition, the AG’s press release states that the new regulations apply to other types of 501(c) organizations::

The new regulations apply to all registered organizations exempt from taxation under section 501(c) of the Internal Revenue Code, except for 501(c)(3) organizations, which are already strictly prohibited from intervention in political campaigns.

Specifically, in a document that contains the AG’s responses to public comments on the proposed rule, the AG’s response to a comment on 501(c)(6) trade associations states that they could also be covered: “The rule as drafted applies to trade associations to the extent they are charities required to register with the Attorney General pursuant to New York law.”

It is ironic that this “charitable organizations” regulation only excludes true charities from its reach.  As we noted earlier, the underlying question whether the AG’s office has legal authority to expand that office’s reach is far from clear.