Top Five Political Law Compliance Tips for 2020
Avoid common and costly missteps presented by political contribution, lobbying and gift laws
Another election year is upon us, and once again federal and state candidates are on track to raise and spend unprecedented sums for their election efforts. That means corporations, trade associations, 501(c)(4) advocacy organization, and their leaders, members and donors will be inundated with political contribution requests. They may also be asked to help candidates and political parties in other ways, such as hosting fundraisers or providing in-kind contributions of goods or services.
For many organizations, political engagement is not an option – decisions by federal, state and local officials may be critical to their success. Any organization engaged in political activity must understand the basic rules of the road in order to avoid common pitfalls. Here are our Top 5 compliance tips for addressing the political law risks facing your organization this election year.
Compliance Tip No. 1: Know which contribution rules apply to your organization
Federal corporate contributions are prohibited
- All incorporated entities, including corporations, trade associations and 501(c)(4) organizations, are prohibited from contributing to federally-registered candidates, political parties and PACs.
Federal and state corporate contribution rules often differ significantly
- However, direct and indirect independent corporate candidate advocacy is permitted by the Supreme Court’s Citizens United v. FEC ruling (e.g., radio, TV, cable, Internet and print ads expressly supporting or opposing candidates that are not coordinated with candidates). Corporate issue advocacy is also permitted.
- Only a few states allow unlimited corporate contributions in state/local elections.
Consider establishing a federal or state Political Action Committee (PAC)
- Contributions from incorporated entities are prohibited in about 20 states, and other states impose limits on corporate contributions.
Avoid common contribution missteps
- An incorporated entity (but not a 501(c)(3) organization) may establish a PAC as a vehicle for contributing when corporate funds cannot be used. PACs are funded by individuals affiliated with the organization. Only state-registered PACs can be used in some state/local elections.
- Conduit and “straw-man” contributions and contribution reimbursement schemes are almost always illegal, and are a favorite target for federal and state prosecutors.
Compliance Tip No. 2: “Pay-to-Play” contribution laws pose special risks for “public contractors”
- Corporate facilities or resources – such as conference rooms, copiers, phones, and secretarial time – should not be used to assist in fundraising activities in support of federal candidates (unless paid by a permissible source or limited safe harbor rules apply). Such “corporate facilitation” can result in significant fines. This activity is also illegal in many states.
- “Pay-to-play” laws may prohibit or restrict political contributions by state or local public contractors and other organizations that have agreements with governmental bodies (including pension fund investment advisers and municipal bond broker-dealers). These contribution restrictions may also apply to the organization’s PAC, and to its officers, directors, senior managers and even their spouses and children.
Compliance Tip No. 3: Lobbying registration and reporting laws are becoming more onerous
- The sanctions for violating pay-to-lay laws can be harsh – e.g., bids disqualified, contracts voided, prospective contract bans. In addition, adverse publicity is likely to accompany violations since the media covers pay-to-play violations closely.
- In many states, the term “lobbying” may mean more than just direct communications with legislators or executive branch officials. For example, lobbying laws and regulations may also cover “grassroots” lobbying (communicating with the public), “goodwill” lobbying (“getting to know” public officials), or “procurement” lobbying (communications about pubic contracts).
Compliance Tip No. 4: Anything you give a public official might be an illegal gift
- States are also requiring more disclosure about lobbying activities; imposing political contribution restrictions on lobbyists; and mandating ethics training for lobbyists and their employers.
- Gift giving is highly regulated by federal, state and local laws. Gift and ethics laws must be reviewed carefully because a “gift” may be anything of value – even a cup of coffee!
- Gift and ethics rules usually apply to gift giving to elected legislative and executive officials, and career government employees. And most states impose additional gift restrictions on lobbyists and government contractors.
Compliance Tip No. 5: Develop a political activity risk management strategy
- Virtually all gift rules have exceptions, which allow for some level of gift giving. Common exceptions permit officials to receive invitations to receptions, awards and certificates, and informational materials. In some jurisdictions a wide range of gifts are permitted, but advance planning is essential. When gift giving is allowed, the donor and/or recipient may have disclosure obligations.
- Develop clear political activity policies and procedures (tailored to your organization’s level of political engagement) outlining “do’s and don’ts” for employees.
- Designate a “go-to” person who can respond to employees’ political activity questions.
- Establish tracking processes for gifts, contributions and other reportable expenditures to facilitate preparation of lobbying, campaign finance and IRS reports.
- On a periodic basis (i) provide training and/or informative materials for certain key employee groups; and (ii) review the scope of your organization’s political activities to identify risk areas and prioritize compliance needs.
For additional information contact Jim Kahl at JKahl@wtplaw.com