HomeEssential Ethics / JANUARY 11, 2019

Essential Ethics

JANUARY 11, 2019

Latest Developments:

  • The United States District Court for the District of Maryland, in Washington Post v. McManus, found that the state’s Online Electioneering Transparency and Accountability Act, which was intended to curb foreign online/social media activity in domestic elections, is overbroad and violates the First Amendment rights of members of the domestic press, who sought an injunction.
  • The Federal Election Commission remains closed due to the federal shutdown.  The commission announced that it will not provide services, most of its staff will not be at work, and it will not respond to any pending matters until it reopens.  The Commission website remains up, although content will not be updated.  The public may continue to send comments on its two pending rulemaking matters.  Electronic filings may be made, although no staff is available to assist with any technical problems.  The Commission will not accept any paper filings during the shutdown.  All documents and materials required to be filed will be considered timely if received within 24 hours after the Commission reopens for business.
  • The California Fair Political Practices Commission meets next Thursday.  The meeting will be held in Oakland and will be attended by Nielsen Merksamer Attorney Joel Aurora.  The agenda includes a discussion of the Commission’s legislative agenda, including whether to request a bill to authorize the Commission to prosecute unlawful use of public funds for campaign activities.  The Commission will also consider adoption of proposed changes to regulations concerning conflicts of interest and the streamline settlement program.  Regulations that the commission will take up in the future include:
    • Discussion of advice letter procedures, including possible criteria for elevating requests for advice to opinion requests.
    • Review of procedures for probable cause proceedings under Commission Regulation 18361.4.
    • Discussion of gift rules as applicable to an agency provided tickets or passes under Commission Regulation 18944.1.
    • Discussion of the definition of “nondonor funds” for purposes of Section 84222.
    • Discussion of campaigning by governmental agencies under Commission Regulations 18420.1 and 18901.1.

In Case You Missed It:

  • Ethics First: House Democrats followed through on their promise and introduced an ethics bill as their first measure.  HR 1 intends to “reduce the influence of big money in politics, and strengthen ethics rules for public servants,” according to its title.  NPR provides the details on the broad contents of the bill; Open Secrets has an article on the campaign finance aspects of HR 1.  Those provisions include disclosure of dark money, digital advertising disclosure, and a call for a constitutional amendment to overturn Citizens United.
  • Crowded Revolving Door:  Roll Call reports that “the revolving door between Capitol Hill and K Street kicked into hyper-spin” with newly former members of Congress and their staffs seeking jobs in the lobby industry.  However, an unusually large number of people leaving Congress and seeking jobs has resulted in an oversupply of talent.
  • Beware of Ethics Issues if Dealing with Furloughed Employees:  Idled federal employees who have set up GoFundMe pages or who are seeking second jobs are still subject to federal ethics provisions according to the Federal News Network.  Those individuals remain federal employees during the furlough and are subject to all applicable federal ethics laws, which include provisions limiting gifts to federal employees – especially from prohibited sources.  Outside jobs must be vetted by the federal employee’s agency ethics officer, which is typically the agency general counsel during a government shutdown.
  • Choice of Organization Form Results in Dark Money:  According to Politico, Protecting America Now, a 501(c)(4) formed to support the nomination of Scott Pruitt to head the EPA, is being criticized for, among other things, choosing the wrong form of organization.  Critics say the organization should have formed as a 527 organization which may be formed “‘primarily for the purpose’ of trying to influence ‘the selection, nomination, election, or appointment’ of anyone to public office.”  A 527 organization would have disclosed its donors, whereas a 501(c)(4) is not required to publicly disclose those donors.
  • Chicago Politics:  The longest serving and, reportedly, Chicago’s most powerful Alderman has been charged in federal court with trying to shake down the owner of several local fast food franchises.  According to the Chicago Tribune, Alderman Ed Burke sought to steer business to his private law firm from a firm that was seeking building permits.  The powerful alderman’s wife is one of seven members of the Illinois Supreme Court.
  • Initiatives – The Playground of Billionaires:  The San Francisco Chronicle reports that “the price of putting an initiative on the ballot is soaring” in California.  The current cost to qualify an initiative is about $2 million.  With a recent high voter turnout, the number of signatures that will be required – which is a percentage of last November’s high turnout – will dramatically increase, and hence the higher costs.