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Essential Ethics: Check Out the Latest Developments in Political Law, Public Briefings and Client Workshops

Nielsen Merksamer, a leader in national political law compliance, hosts briefings, workshops and communications to share best practices and recent developments in campaign finance, lobby disclosure and government ethics laws across the nation.  For the latest from our research team, read on…

WEEK OF NOVEMBER 9, 2018

Latest Developments:

  • Election Day Results:  Several States provided voters with the opportunity on Election Day to vote on ballot measures that covered, gifts, campaign contributions, redistricting commissions, public officials’ conduct, and lobbyist activityNPR has a discussion of the most important issues contained within these measures.  The election results are summarized below:
  • Arizona Proposition 306 [Passed]: Prohibits statewide and legislative candidates for office from transferring funds from public financing accounts (“clean election accounts”) to either political parties or tax-exempt 501(a) organizations that can engage in activity to influence elections. The measure also removes the Citizens Clean Election Commission’s exemption from rule-making requirements, thus making that commission’s regulations subject to the state’s Administrative Procedures Act. (Yes – 56% with 99% of precincts reporting.)
  • Colorado Amendment 75 [Failed]: Provides that if a statewide or legislative candidate contributes one million dollars or more to his or her own campaign, other candidates in that race may accept five times the normal campaign contribution limit.  (No 66% with 100% of precincts reporting.)
  • Colorado Amendment Y and Amendment Z [Both Passed]:  These two measures on the ballot would create congressional and legislative redistricting commissions, respectively.  The Independent Congressional Redistricting Commission and the Independent Legislative Redistricting Commission would each be composed of four Democrats, four Republicans, and four independents, selected in a process conducted under the supervision of three retired judges appointed by the Chief Justice of the Colorado Supreme Court. (Yes 71% for both, with 100% of precincts reporting.)
  • Florida Amendment 12 (Constitutional Revision 7) [Passed]:  Expands current restrictions on lobbying. State and local public officials would be banned from lobbying for six years.  Those officials are currently banned for two years after leaving office.  The measure would also prohibit public officials from lobbying another government agency while currently holding a public office.  The proposal would additionally ban public officeholders and their families and businesses from receiving a “disproportionate benefit” as a result of their status as an officeholder.  That term would be defined later by the state’s ethics commission.  (Requires 60% vote for passage; Yes 79% with 99% of precincts reporting.)
  • Massachusetts Question 2 [Passed]:  Establishes a 15-member citizens’ commission to consider and recommend potential amendments to the United States Constitution to establish that corporations do not have the same Constitutional rights as human beings and that campaign contributions and expenditures may be regulated.  The measure, among other things, states that, “Citizens United v. FEC presents a serious and direct threat to our democracy.”  (Yes 71% with 99% precincts of precincts reporting.)
  • Michigan Proposal 2 [Passed]:  Creates an Independent Citizens Redistricting Commission to redistrict both congressional and legislative districts.  The Secretary of State would be responsible for providing support services to the commission.  At least four commissioners must be Democrats, at least four must be Republicans, and at least five would be unaffiliated voters.  Public officials, party officials, and lobbyists would be ineligible to serve on the commission. (Yes 61% with 100% precincts of precincts reporting.)
  • Missouri Amendment 1 [Passed]:  Revises state law on lobbying, gifts, campaign finance, redistricting, and public records. Lobbying: legislators and legislative employees would have to wait two years before becoming a paid lobbyist.  Gifts: legislators and legislative employees may not accept gifts of more than five dollars in value. Campaign finance: establishes cash contribution limits for legislative candidates ($2,500 for Senate candidates; $2,000 for House candidates) for each election cycle, prohibits disguising the source of contributions, and prohibits fundraising on public property. Redistricting: creates the “non-partisan state demographer,” who would be selected by the State Auditor and the majority and minority leaders in the State Senate for a five-year term to redraw district maps. Public records: legislative records are considered public records; all legislative proceedings would be subject to laws governing public access.  (Yes 62% with 99% precincts of precincts reporting.)
  • New Mexico Constitutional Amendment 2 [Passed]:  Creates a seven-member State Ethics Commission that would investigate and adjudicate complaints concerning standards of ethical conduct for state officers and employees of the executive and legislative branches of government, candidates or other participants in elections, lobbyists, and government contractors.  (Yes 75% with 100% precincts of precincts reporting.)
  • North Carolina Legislatively Referred Constitutional Amendment (House Bill 4) [Failed]: Removes the Governor’spower to make appointments to the Bipartisan State Board of Ethics and Elections Enforcement and reduces the board from 9 members to 8.  Those 8 would be split, with four Republicans and four Democrats, all appointed by the legislature.  (No 62%, with 99% precincts of precincts reporting.)
  • North Dakota Initiated Constitutional Measure 1 [Passed]:  Establishes a five-member North Dakota Ethics Commission selected by the Governor and the majority and minority leaders in the State Senate; the commission could adopt ethics rules.  The measure also prohibits gifts from lobbyists to public officials, with certain exceptions, prohibits lobbyists from delivering campaign contributions from others, and prohibits public officials from lobbying for two years after leaving office.   It bans contributions from foreign entities and persons as well as personal use of campaign contributions, and requires that reports of campaign expenditures over $200 be electronically accessible to the public.  (Yes 54%, with 100% precincts reporting.)
  • Oklahoma State Question 798 [Failed]:  Provides that the Governor and Lieutenant Governor be elected on a single joint ticket beginning in 2026.  (No 54%, with 100% precincts reporting.)
  • South Dakota Constitutional Amendment W [Failed]:  Requires lobbyist registration and disclosure, prohibits gifts from lobbyists to senior public officials, with some exceptions, and prohibits lobbyists from delivering contributions made by others.  Prohibits contributions in the State Capitol building, contributions by foreign governments, personal use of campaign contributions, and use of state property by public officials for personal gain.  Prohibits corporations and labor unions from making campaign contributions to state or local candidates.  Establishes election-cycle contribution limits for candidates ranging from $500 for State Representative or local offices to $4,000 for Governor.  Replaces the old board with a new State Government Accountability Board as an independent commission appointed by the Governor and Supreme Court, and empowered to adopt ethics rules.
  • The initiative would also require voter approval for any substantive changes to a voter-approved initiative or referendum. This measure was proposed in response to the state legislature repealing Initiative 22, a campaign finance and election-related measure approved by voters in 2016. Initiative 22 was an initiated state statute, which meant that the legislature was able to repeal or amend it. This 2018 initiative is a constitutional amendment and can’t be repealed or amended without voter approval.  (No 55%, with 100% precincts of precincts reporting.)
  • South Dakota Initiated Measure 24 [Passed]:  Prohibits contributions to ballot question committees from non-residents, out-of-state political committees, and entities that haven’t filed with the Secretary of State’s office for the preceding four years.  (Yes 56%, with 100% precincts reporting.)
  • Utah Proposition 4 [Passed]:   Establishes the Utah Independent Redistricting Commission to recommend revised congressional and legislative districts following a federal census or other specified events.  The chair of commission would be appointed by the Governor, and the other six members would be appointed by various legislative leaders.  Proposed maps would be submitted to Chief Justice of the State Supreme Court who would determine if the maps meet certain criteria. The approved maps would be submitted to the legislature for its approval.  (Yes 50.6%, with 100% of precincts reporting.)
  • Boston, Massachusetts enacted a new Lobby Ordinance.  The measure requires annual registration with, and quarterly reporting to, the new Municipal Lobbying Compliance Commission.  Those who lobby 25 hours or less in a quarter or who receive less than $2,500 during a quarter would be exempt.
  • The Federal Election Commission meets next Thursday, November 15.  The Commission’s Agenda includes a discussion of only one version of the draft advisory opinion that would permit the provision of security software to protect personal electronic devices from cyber threats for free, without being an impermissible campaign contribution.
  • The California Fair Political Practices Commission meets next Thursday, November 15.  The agenda includes adoption of new gift limits, campaign contribution limits, and officeholder account limits.

In case you missed it:

  • Repackaging PACs:  Corporate PACs are rebuilding their image according to Politico, after a midterm election that saw a large number of candidates refuse to accept corporate PAC money.  The National Association of Business PACs points out that“the real villain in politics is unchecked spending by super PACs and mystery donors, not the more-regulated fundraising committees attached to businesses and trade groups.”  The group is seeking to raise the limit on the amount a PAC can contribute to a single candidate.
  • Can you Build a Fence to Keep Money Out?:  The South Dakota Measure passed Tuesday (see above) that prohibits out-of-state contributions for ballot measures is likely to face a challenge.  The Rapid City Journal interviewed sources from Americans for Prosperity, Common Cause, and Ballotpedia, among others, about the measure.  Most are skeptical about a state’s ability to restrict out-of-state ballot measure contributions; some are willing to say the measure is “clearly unconstitutional.”
  • Vacation Time in D.C.:  Monday and Tuesday of election week was vacation time for many lobbyists in Washington, D.C., according to Politico“Members of Congress are getting help before Election Day from a tiny but influential subset of on-the-ground volunteers: Washington lobbyists eager to help their old bosses — and perhaps their own careers.”  Many lobbyists took vacation time and spent the past weekend in states across the country knocking on doors to help turn out voters.
  • Too Many Lobbyists up North?: The CBC reports that Canadian Senators “are being lobbied more than ever — and some are feeling overwhelmed.”  One Senator complained that “lobbyists have been given ‘too much time and too much importance.’”  A representative of the lobbyists’ trade association countered that “lobbyists also offer politicians practical advice, flag provisions that might be unworkable, point out unintended consequences, and offer recommendations to close loopholes.”

WEEK OF NOVEMBER 2, 2018

Latest Developments:

  • A United States District Court in Illinois issued an opinion in Proft and Liberty Principles PAC v. Madigan. Under Illinois law certain events result in the lifting of limits on contributions to candidates.  However, the court ruled that lifting the limits does not permit independent expenditure committees to contribute directly to candidate committees or to coordinate with them.  Courthouse News Service summarized the court analysis, noting “the state has a valid anti-corruption interest in ensuring that money raised for independent expenditures be used only for that purpose and not as campaign contributions.”
  • The New York Joint Commission on Public Ethics met Tuesday, October 30. Among other things, the Commission discussed their new electronic system for lobbyist registration and reporting, in conjunction with the new lobby regulations.  Additional resources, including an updated lobby guide should be available in mid-November; a new registration portal should be open by December 3.

In case you missed it:

  • Election Transparency Buried in Paper: The Kentucky Registry of Election Finance cannot process paper election reports fast enough.  The Associated Press reports that the Registry of Election Finance has 12 staffers who cannot enter the data fast enough to make it available to the public.  Virtually all candidates have filed on paper this year.  According to the article, “Registry of Election Finance chairman Craig Dilger pleaded with lawmakers Wednesday to pass a law next year requiring all candidates to file their campaign-finance reports electronically, something most states already do.”  Lawmakers have approved funds for a new computer system, but have not yet required electronic reporting.
  • Less than a Week to Go, and Still in the Dark: The New York Times discusses something called the “Hub Project,” a Democratic organization with “(a) structure unknown even to some of those involved.” Fourteen groups around the country are “funded and coordinated out of a single office in Washington, with the goal of battering Republicans… during the midterm elections.”  The group’s executive director, according to the Times, “displayed no ambivalence about using undisclosed contributions — traditionally a source of dismay for Democrats — to punish Republicans for last year’s $1.5 trillion tax law and their attempts to repeal the Affordable Care Act.  ‘We don’t believe in unilateral disarmament,’” he said.
  • Encouraging Pay to Play: The Voice of San Diego reports that 80% of construction companies that gave $5,000 or more to a pro-school bond campaign in the last seven years received contracts with the San Diego Unified School District.  According to the article, most of these were “service provider contracts,” not competitively bid contracts awarded to the lowest bidder.  In fact, none of the donors sought those type of competitively bid contracts.
  • Ethics Bumps in the Road: The Washington Post reports that the Florida Commission on Ethics charged the Mayor of Lantana, Florida with asking for sex in exchange for approving speed bumps on a constituent’s street.  After witnessing several accidents involving animals and children, a resident asked the city to install speed bumps on her street.  The Mayor allegedly said, “have sex with me and I will guarantee that you get your speed humps that you want.”   The Commission “found probable cause that [the Mayor] ‘misused his position to attempt to obtain a sexual benefit for himself,’ and ‘solicited sex from a constituent based on an understanding his vote, official action, or judgment would be influenced.’”

WEEK OF OCTOBER 26, 2018

Latest Developments:

  • The Federal Election Commission met Thursday, October 25.  The only substantive matter on the agenda was a proposed opinion regarding whether: (1) to permit the provision of cybersecurity services to federal candidates and national parties for free because it is not for the purpose of influencing an election; or, (2) to prohibit it as an impermissible in-kind contribution.  The matter was put over to a future meeting.
  • The United States Department of Justice announced an indictment of a former lobbyist on obstruction of justice charges.  The department alleges that Christopher Petrella was lobbying in support of a fraudulent scheme and, among other things, provided a false quarterly lobbyist report to federal law enforcement officials.
  • The California Fair Political Commission has issued a notice that it will hold a hearing on proposed amendments to gift limit and campaign contribution limit regulations at its meeting on November 15, 2018.  The Commission proposes to increase the annual gift limit to $500 beginning January 1, 2019.  Campaign contribution limits are proposed to increase, among others, to $4,700 per election for legislative candidates and to $31,000 per election for candidates for Governor.
  • The New York Joint Commission on Public Ethics meets next Tuesday, October 30.  The agenda includes a discussion of proposed legislation to allow public disclosure of some matters under investigation and a pending opinion regarding post-employment restrictions.

In case you missed it:

  • Bad TimingThe North Carolina State Board of Elections and Ethics Enforcement fined a federal PAC over $40,000 for a series of contributions made during the state legislature’s blackout period.  According to NC Policy Watch, 48 contributions were dated on days that the General Assembly was in session, although the checks were not sent out until a later date.
  • Do you Live in a Swamp?:  The Coalition for Integrity has published its States With Anti-corruption Measures for Public Officials [S.W.A.M.P.] Index Report 2018.  The group’s interactive map shows, at a glance, which states have the toughest and the weakest laws on ethics and transparency.  Scores range from 0% in North Dakota to 78% in Washington State.
  • Billionaires with Carpetbags Full of Cash:  The Center for Public Integrity has compiled a list of billionaires who have contributed to state ballot measures, including in many states far from their own homes.  The article describes “how billionaires from other states are shaping this year’s ballot measures.”
  • Federal Clean-Up Crew Still in NY:  The New York Times reports that Dean Skelos, former Senate Majority Leader was sentenced in federal court to four years and three months for corruption, which included businessmen paying his son $300 for “no show” jobs.  Also, according to the Times, his son was sentenced to four years in federal prison.  Meanwhile, the Rochester Democrat & Chronicle reports that New York Assemblyman Joe Errigo was charged this month in federal District Court in Rochester with taking bribes in connection with the introduction of legislation to influence a local development.
  • South Carolina Corruption Trial:  The former Chair of the State House of Representatives Judiciary Committee is on trial for corruption.  The State newspaper, in Columbia, South Carolina, reports that the trial of Jim Harrison will determine whether “untraceable, undisclosed payments made to lawmakers or on their behalf — is legal in South Carolina.  Lawmakers are supposed to report money that their employers get from companies that lobby the Legislature, and Harrison (allegedly) didn’t do that.”
  • North Carolina Corruption:  The Charlotte News and Observer reports that the North Carolina State Board of Elections and Ethics Enforcement found that a state representative failed to report $141,000 in campaign contributions, including $25,000 in ATM withdrawals.  The board found that bank records had been altered, and it unanimously referred the matter for prosecution.

WEEK OF OCTOBER 19, 2018

Latest Developments:

  • The Governor of North Dakota has announced a final Ethics Policy, which forbids gifts that exceed $50 in value to the Governor, Lieutenant Governor, or their employees, according to the Bismarck Tribune.
  • The Alaska Public Offices Commission is wavering on lobbyist involvement in campaign contributions:  Alaska prohibits lobbyists from collecting or delivering campaign contributions to candidates for the legislature or Governor.  However, according to Fairbanks Daily News-Miner, informal advice from the Alaska Public Offices Commission (APOC) permits lobbyists to inform others of upcoming fundraisers.  That advice has led lobbyists to email public officials’ fundraiser invitations to others.  APOC’s director cautions that informal advice is non-binding and won’t protect a lobbyist if a complaint is filed.  Moreover, following the press reports, APOC staff has drafted an opinion to stop the practice; the opinion will be presented to the Commission for approval in January.
  • San Francisco, CA, Ordinance No. 212-18 took effect on October 14, 2018.  That ordinance requires disclosure of candidate and third party spending in elections for the city’s Retirement Board, Health Service Board, and Retiree Health Care Trust Board.  Any person who makes expenditures totaling $1,000 or more in a calendar year to support or oppose a candidate must register and file regular reports and must use an account at an office of a bank located in San Francisco.
  • The Federal Election Commission meets next Thursday, October 25.

In case you missed it:

  • CEO Political SpendingMarket Watch reports that America’s CEOs are investing in the midterm elections.  Although some CEOs avoid partisan politics, the article indicates that at least 388 of the S&P 500 CEOs have collectively contributed over $24 million to various political groups and candidates.  Market Watch created a searchable database with its findings.
  • Dark Money Struggles to Find the Light:  Notwithstanding a court order to reveal their donors, according to Politico, few organizations disclosed their donors as a reporting deadline passed on October 15.  Of the 18 so-called “dark-money political groups” tracked by the Campaign Legal Center, only four filed reports disclosing their donors.
  • Never Report Today What you Can Report After the ElectionPolitico also reports on the accelerating phenomenon of Super PACs opened just after a reporting deadline that spend large amounts and don’t’ file any reports until after the election.  According to the article, “The strategy – which is legal – is proving increasingly popular among Democrats and Republicans.”  The article contains a lengthy list of Super PACs that successfully avoided pre-election disclosure.

WEEK OF OCTOBER 12, 2018

Latest Developments:

  • The Federal Election Commission provided advice on how to report independent expenditures following the decision in CREW v. FEC.  The advice applies to persons other than political committees that make independent expenditures aggregating more than $250 in a calendar year for a particular election.
  • In California, the state’s Fair Political Practices Commission (agenda), Los Angeles City Ethics Commission (agenda) and the San Francisco Ethics Commission all meet during the week of October 15.
  • The Washington State Court of Appeals upheld a $319,281.58 fine imposed on Food Democracy Action! for concealing its activity during an election.  In State of Washington v. Food Democracy Action!, the court found that the organization solicited and received over 7,000 contributions totaling nearly $300,000 to support Initiative 522.  The organization, in turn, contributed large lump sums to the Yes on I-522 campaign; that campaign reported the amounts as contributions from Food Democracy.  After the election, when the Washington State Public Disclosure Commission began an investigation, Food Democracy registered as a political committee and filed a disclosure report listing its contributors.  I-522 would have required GMO disclosure labels, but narrowly failed passage in the 2012.
  • The Oklahoma Ethics Commission meets Friday, October 12.  The Commission’s agenda includes a continuing discussion of proposed amendments to three ethics rules that concern: (1) coordination, (2) expenditures to influence legislation, and (3) candidate committee to candidate committee transfers.
  • CPA-Zicklin announced the release of its 2018 Index of Corporate Political Disclosure and Accountability.  The annual publication analyzes and scores political disclosure and accountability policies and practices of leading U.S. public companies.

In case you missed it:

  • What Happens When There’s no Deadline in the Ordinance:  The Fort Meyers New-Press reports that an audit by the Lee County (Florida) Clerk of the Court found that 60 percent of registered lobbyist failed to file required quarterly or annual statements of their activity.  [Editor’s note:  Nielsen Merksamer clients who subscribe have access to the Nielsen Merksamer Summary of Lee County, Florida Lobby Law, which includes information on the deadline to file lobbyist reports in Lee County.]
  • Murky MoneyPolitico describes the technique of political spending against opponents timed so that disclosure of the source occurs only after the election is over.  The method relies on creating a Super PAC right after a reporting deadline has passed and raising and spending all the money before the next reporting deadline, which is often after the election occurs.  The article points out that Super PACs created between October 18 and November 6 won’t have to file reports until after the midterm election.  An alternative technique is to borrow money, spend it, and seek contributions after the election.
  • Money and GamesThe Federalist Society reports that the “’no duh’ school of campaign finance regulation suffered another welcome correction in September.”  Last week we noted that the Philadelphia Inquirer wants the state legislature to enact new restrictions following a U.S. District Court’s decision in Deon v. Barasch that the state’s ban on contributions from gaming interests is too broad and therefore unconstitutional.  The Federalist Society points out that the same code section was previously struck down by the Pennsylvania Supreme Court in 2009, but the legislature’s response was to simply add language to the Gaming Act describing what it thought was a compelling state interest, rather than amending the challenged statute and tailor it.
  • The Public has to Guess:  According to the Santa Fe New Mexican, a 2016 change to the lobby laws which brought about electronic filing also stripped away the requirement that gifts of less than $100 to lawmakers be disclosed.  As a result, many of the biggest spending lobbyists do not reveal who received food and beverage or other gifts.

WEEK OF OCTOBER 5, 2018

Latest Developments:

  • The Illinois First District Court of Appeal upheld Cook County’s restrictions on campaign contributions from lobbyists and persons seeking official actions from the county.   In Berrios v. Cook County Board of Commissioners, the County Assessor and a private attorney doing business before the assessor’s office challenged those restrictions.

Ballot Measures to Watch in November:

Several states around the country have political law measures on the November ballot.  These measures include various changes to campaign contribution limits, lobbyist gifts, revolving door provisions, and creating or revising ethics commissions or redistricting commissions.

  • Arizona Proposition 306: Prohibits candidates for office from using public financing accounts (often called “clean election accounts”) to give funds to either political parties or tax-exempt 501(a) organizations that can engage in actions to influence elections. The measure would also remove the Citizens Clean Election Commission’s exemption from rule-making requirements.
  • Colorado Amendment 75: Creates the ability for candidates to accept five times as much in contributions to their campaigns as is normally allowed only if another candidate contributes $1 million or more to his or her own campaign.
  • Colorado Amendment Y and Amendment Z:  These two measures on the ballot would create congressional and legislative redistricting commissions.
  • Florida Constitutional Revision 7:  Expands current restrictions on lobbying for compensation by former public officers, creates restrictions on lobbying for compensation by currently serving public officers, provides exceptions, and prohibits certain abuse of public office for personal benefit.
  • Massachusetts Question 2:  Establishes a 15-member commission that to recommend constitutional amendments related to corporate personhood and political spending. The commission would be required to report on political spending in Massachusetts and the ability of states to regulate corporations, and to draft proposals for constitutional amendments. The commission would also be tasked with recommending that personhood does not include corporations and with overturning Citizens United v. FEC.
  • Michigan Proposal 2:  Creates the Independent Citizens Redistricting Commission that would draw both congressional and legislative district lines. Selection process occurs through the secretary of state’s office, with 13 commissioners randomly selected from a pool of registered voters. Four members would self-identify with each of the two major parties, five would be unaffiliated/independent. Current and former elected officials, lobbyists, and party officers would not be eligible.
  • Missouri Amendment 1:  Reforms lobbying, campaign finance, redistricting, and public records. Lobbying: legislators and legislative employees have to wait two years before becoming a paid lobbyist and both could not accept gifts above $5 in value. Campaign finance: establishes cash contribution limits for legislative candidates and candidate committees for each election cycle, prohibits disguising who contributions are from, and prohibits fundraising on public property. Redistricting: governs legislative redistricting by creating a non-partisan state demographer position who would be selected through a special process and draw maps to present to the legislature. Partisan fairness and competitiveness would be two of the criteria. Public records: legislative records are considered public records.
  • New Mexico Constitutional Amendment 2:  Creates a seven-member state ethics commission tasked with investigating alleged violations of ethical conduct by state officials, executive and legislative employees, candidates, lobbyists, government contractors, and others as provided by law.
  • North Carolina Legislatively Referred Constitutional Amendment (House Bill 4): Removes the governor’spower to make appointments to the Bipartisan State Board of Ethics and Elections Enforcement, meaning legislative leaders would make all eight appointments to the board.
  • North Dakota Initiated Constitutional Measure 1:  Establishes a 5-member ethics commission selected by the governor and state senate, bans campaign contributions from foreign entities and people, creates lobbyist restrictions, establishes conflict of interest regulations for public officials, and requires that campaign finances be publicly accessible.
  • Oklahoma State Question 798:  The governor and lieutenant governor would be elected on a joint ticket starting with the 2026 election.
  • South Dakota Constitutional Amendment W:  Restricts lobbyist gifts to politicians, bans foreign money in SD elections, toughens ethics law enforcement, reduces special interest money in SD elections, and removes the ability of the legislature to overturn a ballot measure passed by the public.  The initiative would replace the existing ethics and accountability commission with a seven-member accountability board with new provisions determining board member selection and expanded duties and authorities of the board—including authority over members of the legislature. The initiative would also establish campaign finance and lobbying restrictions, require voter approval for any substantive changes to a voter-approved initiative or referendum, require voter approval to make alterations to the state’s initiative and referendum process, and constitutionalize the simple majority requirement for the approval of initiatives and referendums on the ballot. This measure was proposed in response to the state legislature repealing Initiative 22, a campaign finance and election-related measure approved by voters in 2016. Initiative 22 was an initiated state statute, which meant that the legislature was able to repeal or amend it. This 2018 initiative is a constitutional amendment and can’t be repealed or amended without voter approval.
  • South Dakota Initiated Measure 24:  Bans out-of-state contributions to ballot question committees from non-residents, out-of-state political committees, and entities that haven’t filed with the Secretary of State’s office for the preceding four years.
  • Utah:   Establishes a commission to draw both congressional and legislative districts in the redistricting process. The commission would have seven members and needs at least five members to approve between one and three maps that are submitted to state Supreme Court chief justice who determines if the maps meet the criteria. Then the approved plans are submitted to the legislature for approval. The measure establishes criteria ranked in order of importance.

In case you missed it:

  • Bright Lights in a Legislative Black-out Period:  Despite a ban on contributions from lobbyists and their employers to legislators in North Carolina during the legislature’s session, com reports that two co-CEOs of a company that employs seven lobbyists managed to give $41,000 to legislators during the period.  Under a so-called “loophole,” CEOs and PACs are not expressly covered by the ban which prohibits contributions from lobbyists and the corporations or others that employ the lobbyists.  More than $1.1 million flowed into legislators’ campaign accounts during the six-week session.
  • The Odds may be Stacked:  The Philadelphia Inquirer has called on the Pennsylvania legislature to enact some kind of limits on contributions following a U.S. District Court’s decision in Deon v. Barasch that the state’s ban on contributions from gaming interests was too broad.  The Inquirer noted that the state has no limit on campaign contributions and cited a study that links the presence of casinos to an increase in public corruption.
  • Follow the Money: NPR reports on the “outside money” spent both in favor and in opposition to Brett Kavanaugh’s confirmation to the Supreme Court.
  • Panem et Circenses: Meanwhile, Roll Call details the calls for Sen. John Kyl to recuse himself on voting for Kavanaugh’s confirmation. The Judicial Crisis Network, which reportedly has spent more than $12 million in favor of Kavanaugh, reported paying Kyl for federal lobbying last year while he was a lobbyist at Covington & Burling, a position he held until his recent appointment to replace the late Sen. John McCain.

WEEK OF SEPTEMBER 28, 2018

Latest Developments:

  • A State Court in Nashville has enjoined Tennessee’s Pre-Election Blackout Period:  In Tennesseans for Sensible Election Laws v. Tennessee Bureau of Ethics and Campaign Finance et al,18-0821-III, plaintiffs sought to make contributions within 10 days of an election but were faced with the threat of criminal prosecution.  According to The Tennessean, on Wednesday, September 26, the judge enjoined the law prohibiting political action committees from making campaign contributions to candidates within 10 days of an election.  The state plans to appeal.
  • The California Fair Political Practices Commission issued a regulation banning contributions by cryptocurrency.  The Commission expressed skepticism based on the ability to money launder cryptocurrencies and the lack of oversight of those cryptocurrencies.

Reminder —  PLI is coming to San Francisco October 4 and 5:

PLI will hold a repeat performance of the popular Corporate Political Activities 2018:  Complying with Campaign Finance, Lobbying and Ethics Laws in San Francisco on October 4 and 5.  The program will be webcast. The keynote speaker will be Richard Hasen, election law blogger, renowned professor, and author.  For more information, check out the full program here.   Nielsen Merksamer clients and California Political Attorney Association members receive a discount.  Please contact a political law attorney at the firm for additional information.

In case you missed it:

  • Junketeer’s Remorse:  Rollcall reports that the U.S. Department of Justice has indicted a man for unlawfully funneling money from an Azerbaijani oil company through a nonprofit to pay for a congressional fact-finding trip to Azerbaijan.  Ten lawmakers and more than 30 aides took the trip in 2013.  Federal provisions permit members of congress to take educational trips paid by nonprofit organizations, but not by private entities.  Kevin Oksuz, who is now a fugitive, is an American citizen who ran the nonprofit organization and took money from an oil company operated by the Azerbaijani government.  Congressional members and their staffs were forced to return gifts received during the trip.
  • Concern about Contributions from Canada:  A Canadian company is accused of illegally contributing to Oregon candidates and PACs through a US subsidiary.  According to the Bend Bulletin, the company is trying to build a LNG plant in Coos Bay along with a pipeline and says the contributions are from U.S. activity.  The Oregon Elections Director says state law doesn’t address subsidiaries of foreign companies, but indicates that federal is applicable.  Federal rules require that contributions come from a separate segregated fund.
  • Meanwhile Canada Aspires to Higher Ethics:  Canada’s House of Commons’ Ethics Committee has launched a review of the country’s Lobby Act and the Conflict of Interest Act.  The Ottawa Globe and Mail reports that the announcement of the study “comes on the heels of a Globe and Mail analysis of Liberal Party fundraising records, which found more than 200 instances of lobbyists attending Liberal fundraisers since early 2017, when the party said it would be imposing tight restrictions on the attendance of lobbyists.”
  • Orange is the New Dark:  The Voice of OC reports that nearly $3 million in so-called dark money has flowed into hotly contested house races in Orange County, California, with much more expected to flow before the election.  Once a bastion of California Republicans, four Republican seats are viewed as battlegrounds.  At least 14 different nonprofit organizations or PACs have spent money, most of which are based out-of-state.  Some money can be traced to out-of-state billionaires, including Sheldon Adelson and Charles Koch on the Republican side, and George Soros and Michael Bloomberg on the Democrat side.
  • Bama Reform:  The Alabama Code of Ethics Clarification and Reform Commission will vote on proposals to reform state law at its October meeting.  com reports that, among other things, the Commission will consider redefining who is a lobbyist employer.  The current law defines the term “principal” as a business or person who employs a lobbyist. The Commission will seek to clarify which individual employees and board members of a business that hires a lobbyist are considered principals (lobbyist employers).
  • Private Jet Travel OK for Hawkeye Governor: The Des Moines Register reports that Governor Reynolds has been cleared by the Iowa Ethics and Campaign Disclosure Board of any wrongdoing in accepting 9 trips on private aircraft.  “The board voted to dismiss the complaints against Reynolds, concluding the flights were ‘legitimate in-kind campaign contributions and allowable under Iowa’s gift law.’”
  • Still No Money for Ethics: The Oklahoma Supreme Court ruled against the Oklahoma Ethics Commission in its effort to force the state legislature to provide more funding to the Commission.  NewOK reports that the court indicated that the Commission must follow the same budgetary procedure as other state agencies.

WEEK OF SEPTEMBER 21, 2018

Latest Developments:

  • The Oklahoma Ethics Commission, at its meeting on Friday, September 14, unanimously adopted Ethics Rule Amendment 2019-03, which consists of revolving door provisions that prohibit elected officials and agency heads from lobbying for two years following their service.  The rule change will take effect in 2019, following the adjournment of the legislature, if the legislature does not affirmatively reject the rule.
  • The D.C. Circuit Court of Appeals dismissed as premature American Action Network’s (AAN) appeal of the district court holding that the amount a group spends on electioneering communications presumptively counts towards deeming that group has a major purpose of nominating or electing candidates and, therefore, that it must register as a political committee.  The Court relied upon the “final judgment rule” to dismiss the case, rather than reaching the merits.  The Court’s dismissal means that Citizens for Responsibility in Ethics (CREW) will be able to proceed with its own private attorney general suit against AAN which alleged that AAN failed to register and disclose donors as a political committee based on ads run in 2010.

Reminder – PLI Coming to San Francisco October 4 and 5:

PLI will hold a repeat performance of the popular Corporate Political Activities 2018:  Complying with Campaign Finance, Lobbying and Ethics Laws in San Francisco on October 4 and 5.  The program will be webcast. The keynote speaker will be Richard Hasen, election law blogger, renowned professor, and author.  For more information, check out the full program here.   Nielsen Merksamer clients and California Political Attorney Association members receive a discount.  Please contact a political law attorney at the firm for additional information.

In case you missed it:

  • The Rules Apply to EveryoneCNN reports that federal prosecutors are considering criminal charges against both former Obama White House Counsel Greg Craig and his then law firm for failure to register as a foreign agent under the Foreign Agents Registration Act (FARA).  The investigation grew out of the probe by Robert Muller and apparently relates to activities by Paul Manafort, who sought the law firm’s help for Ukraine.  The firm reportedly received $4.6 million in fees through the Manafort connection.  According to CNN, Democratic lobbyist Tony Podesta and former Republican Congressman Vin Weber are also under investigation for FARA violations.
  • But Congress isn’t Concerned:  Congress had great interest in updating and strengthening FARA in the period after Paul Manafort was indicted.  However, according to Politico, Congress has lost its enthusiasm for overhauling FARA, with Mike Johnson (R-La.), a leading proponent of reform, declaring that, “There’s these very fierce efforts to maintain the status quo.”  FARA legislation appears dead for the year.
  • Put Away those Quill Penscom reports that the United States Senate is finally moving to electronic filing of campaign reports for U.S. Senate candidates.  If the President approves a bill pending on his desk, candidates would file electronically with the Federal Election Commission, rather than paper filings with the Secretary of the Senate.
  • My Way or No Highway:  According to CBSSacramento, the California Fair Political Practices Commission is reportedly investigating whether campaign rules were violated when Caltrans employees or contractors distributed fliers opposing Proposition 6, a ballot measure that would repeal gas tax hikes enacted last year.  Laurie Berman, Director of Caltrans, stated the personnel identified in a complaint filed by proponents of the measure were Caltrans private contractors and that “the Department does not condone political advocacy or the distribution of campaign information on work project sites and is contacting its contractors to remind them of this.”  The article notes that, “Construction companies and unions representing construction workers, who stand to benefit from more road work, are among the biggest funders of the campaign to defeat Proposition 6.”

WEEK OF SEPTEMBER 14, 2018

Latest Developments:

  • The Federal Ninth Circuit Court of Appeals reversed a lower court’s decision and upheld the California Attorney General’s requirement that nonprofit organizations that engage in political spending must disclose their donors to the state, as reported on an IRS Form, “Schedule B.”   According to Politico, “The Americans for Prosperity Foundation had argued that the state’s rules requiring filing of the donor list violate the First Amendment by discouraging individuals from giving and by exposing them to threats and harassment.” Politico reports that in Americans for Prosperity Foundation v. Becerra, the court held that “the state had a legitimate need for the data and that the Koch-founded group had not shown a significant burden on donors.”  As we previously reported, the U.S. Treasury Department has announced, in Revenue Procedure 2018-38, that the IRS will no longer require that the names and address of donors be disclosed on Schedule B for tax years starting with those that end December 31, 2018.
  • The Federal Eighth Circuit Court Appeals affirmed a lower court ruling holding that the provisions of Missouri Constitutional Amendment 2, approved by voters in November 2016, which impose a ban on PAC to PAC transfers, violates the First Amendment.  In Free and Fair Election Fund v. Missouri Ethics Commission the court noted that the Eleventh Circuit has upheld a ban on PAC to PAC contributions in Alabama, but distinguished the circumstances of that ban.
  • The New York Joint Commission on Public Ethics met Wednesday, September 12.
  • The Commission discussed a proposal to amend state law to permit the Commission Chair or designated staff to publicly disclose that a matter is under investigation, has been closed, or has been deferred at the request of law enforcement.  Commissioners, by consensus, asked that the measure be posted online with a request for public comment.  The matter will come back before the Commission next month with those public comments.
  • On Thursday, September 20 at 1:30 p.m. EDT, the Commission will hold a training on the new lobby regulations.  Over 500 people have signed up for the training, and as a result, the training will be live-streamed on the Internet.  A video of the training will be subsequently posted on the Commission’s website
  • The Oklahoma Ethics Commission meets Friday, September 14.  The Commission’s agenda includes a discussion of three amendments to Rules, including campaign finance rules regarding coordination, lobbyist rules concerning disclosures, and revolving door provisions for elected officers and chief administrative officers.
  • The California Fair Political Practices Commission meets next Thursday, September 20.  The agenda includes a report from the Enforcement Review Task Force, a continuing discussion on Bitcoin and crypto currency contributions, and a discussion of Citizens for Responsibility & Ethics v. F.E.C, which staff finds inapplicable to the FPPC.
  • The California FPPC has also given notice of review of the following regulations:

October 18, 2018:

  • Top contributor disclosure requirements under Assembly Bill 249 (the Disclose Act) (Prenotice) – The Commission may consider the potential adoption of regulations identifying top contributor disclosure requirements when contributions may not legally be used for the advertisement at issue or have been earmarked for other purposes.
  • Regulation 18756. Electronic Filing System Certification (Prenotice) – The Commission may consider additional certification requirements for Form 700 Electronic Filing System Certification under Section 87500.2 to ensure systems can exchange data with the Commission’s electronic filing system.

November 15, 2018:

  • Cost of Living Adjustment (Adoption) – The Commission will consider a cost of living adjustment to Contribution Limits, Voluntary Expenditure Ceilings, and the Gift Limit Sections 83124, 85316(b)(4), and 89503(f).
  • Regulation 18702.2. (Prenotice) – Discussion of materiality thresholds under the Act’s conflict of interest provisions for real property interests including clarification of the 500- foot property rule.

Scheduling to be Determined:

  • 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.
  • The Oakland Public Ethics Commission met on Tuesday, September 11, 2018, and took up the matter of alleged improper gifts of sports tickets to the Mayor and to City Council Member McElhaney.   The staff report (as detailed here last week) cleared them of any wrongdoing with regard to use of city tickets.  Apparently, seven more cases of city officials’ allegedly improper use of tickets are pending; the Commission sent the matters back to staff for further consideration.  The Commission expressed that, in the future, a “public purpose” must be provided to support the personal use of city tickets for exempt official business and referred the policy question regarding tickets to a subcommittee to clarify the Commission’s position.  In addition, the San Francisco Chronicle reports that Council Member McElhaney faced a proposed penalty of $8,625 for taking improper gifts from a developer; the Commission reduced that penalty to $2,550.

In case you missed it:

  • Free Stuff for Campaigns: The Federal Election Commission issued a ruling permitting Microsoft to provide “enhanced online account security services at no additional charge on a nonpartisan basis to its election-sensitive customers, including federal candidates and national party committees.”  The commission found that the provision of the services is not a prohibited in-kind donation as the services provided are commercial in nature and not political.
  • More Light on Dark MoneyIssue One has issued a report entitled Dark Money Illuminated, which discusses the top 15 spenders of dark money, from the U.S. Chamber of Commerce (No. 1) to Planned Parenthood (No. 15).  Issue One created a database of donors to those 15 entities.
  • Judicial Campaign Settlement in the Land of Lincoln:  State Farm settled a case in which it was accused of funneling campaign contributions through entities that are not required to disclose contributors.  The Insurance Journal reports that the contributions were intended for an Illinois Supreme Court Justice who won and ultimately voted to wipe out a billion-dollar verdict against the company.  The company denied wrong-doing, but agreed to pay a $250 million dollar fine.
  • Not a Day at the Beach: Taxpayers May be Stuck for Ethics Violations:  The Los Angeles Times reports that five current and former members of the California Coastal Commission were found to have violated ethics/disclosure laws and fined.  In addition, Spotlight on Coastal Corruption, which brought the suit, has been awarded $959,000 in attorney’s fees.  The Times speculates that taxpayers, rather than the commissioners, may end up footing that bill for these fees, which is in addition to the $650,000 spent on the Attorney General’s legal expenses to defend the commissioners.  The Attorney General has appealed.

WEEK OF SEPTEMBER 7, 2018

Latest Developments:

  • The Federal Election Commission is touting a campaign safety information program established by the Federal Bureau of Investigation.  The FBI program, called “Protected Voices,” is intended to raise awareness among campaigns of the risk of cyber influence operations.  The FBI urges each “campaign to enhance its own cyber hygiene, the technological equivalent of locking your doors and windows.”
  • The New York Joint Commission on Public Ethics meets next Wednesday, September 12.  The agenda includes a discussion of a proposal to amend state law to permit the Commission Chair or designated staff to publicly disclose that a matter is under investigation, has been closed, or has been deferred at the request of law enforcement.

In case you missed it:

  • National Champion Golden State Warriors present a Municipal Ethics Challenge:  The San Francisco Chronicle reports that the Mayor of Oakland has been cleared of any wrongdoing for personally using $54,000 worth of sports tickets she received.  Another council member personally used $320,000 in sports tickets.  Generally, the City of Oakland limits gifts from a single source to $250 in value per year.  But the law has exceptions, including for “personal oversight” of the municipally-owned sports arena and stadium.  The Mayor and council member both used the personal oversight exception for their acceptance of sports tickets, which included the Golden State Warriors NBA playoffs and finals tickets that had face values of $5,000 and $10,000 per ticket, respectively.  Those post-season games required lots of personal oversight; no word on whether there has been any interest whatsoever in personal oversight of the Oakland Athletics’ stadium.  Maybe later this year, if the Athletics make it to the playoffs as a wildcard?
  • Alaska puts Drinks on Ice:  Alaska has a new ethics reform measure that would make Carrie Nation proud.  The Cordova Times indicates that the Governor approved House Bill 44 which, among other things, adds additional limitations on gifts from lobbyists to legislators.  The exception that permits gifts of food or beverages for immediate consumption is now limited to food or nonalcoholic beverages and also is limited to a value of $15 or less, unless it is provided as part of an event that is open to all legislators or legislative employees.
  • Payday Lending may have Paid Off Too Well:  Federal Authorities are building a corruption case against Ohio Ex-Speaker Cliff Rosenberger that relates to an effort to stall payday lending reform legislation.  The Dayton Daily News reports that in a response to media requests, the government released a copy of the search warrant and subpoena served in the case.  Those documents show the government sought records relating to “payday lending legislation; evidence of payments, kickbacks, bribes or other benefits such as payment of travel-related expenses…”  The ex-speaker is alleged to have received travel and other benefits in exchange for holding up the legislation.
  • How Much does it Take?:  The Kansas City Star reports on the effect of lobbyists’ gifts and campaign contributions on legislative policy.  The Star interviewed a variety of interested people on whether small gifts, large contributions, or dark money can buy a Missouri legislator’s vote.
  • Now Earn 5% Cash Back or Miles on Fines for Ethics Violations: The California Fair Political Practices Commission announced this week that it would finally start accepting credit and debit cards for payments of enforcement fines.  No more need to get a cashier’s check or money order, according to the press release; the Commission is finally stepping into the twenty-first century.
  • Disclose as I say, not as I do:  The FPPC’s press release promoting its new payment mechanism, as described and linked immediately above, fails to disclose one tiny detail.  Before you start earning that cash back or those miles, read the (8.5-point Helvetica) fine print in the lower right hand corner of the actual payment form:  A convenience fee of 3.0 % will be charged by a third party processor for this transaction. Yes, we believe that is a “disclosure,” although it is neither “the same size as the majority” of the form, nor is it “14-point, bold, sans serif type in contrasting print color.”  (Those font size requirements are among the ones that the Commission imposes on others with regard to various political advertising disclosures.)

WEEK OF AUGUST 31, 2018

Latest Developments:

Among the recollections of the late Sen. John McCain’s legislative achievements, NPR ran a segment on the Senator’s impact on Campaign Finance, including his essential role in the so-called Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold. Unmentioned was McCain’s past as a member of the “Keating Five” corruption scandal, which took place amidst the larger Savings and Loans collapse of the late 1980s. McCain himself cited the scandal as an impetus for his often-Quixotic undertakings for reform.

Nosce te Ipsum: The LA Times reports on Gov. Jerry Brown’s Monday veto of a bill that would have prevented politicians from paying family members an amount greater than fair-market value for goods and services. Sponsored by Assemblyman Marc Steinorth (R-Rancho Cucamonga), the bill sought to ban politicians from making excessive payments to parents, children and siblings working on their campaigns.

Reminder:  

Our annual Essential Ethics Workshop will be held on Wednesday, September 5 at the University Club in Washington, D.C. from 12:30 – 2 p.m.  We’ll be discussing new developments in political law, sharing experiences and best practices for responding to lobby audits, and discussing the potential changes to the Supreme Court’s campaign finance precedent in light of the upcoming appointment of a new Justice.   This event is free and open to all clients.  Contact Donna Flanagan for more information.

In case you missed it:

  • Ongoing North Carolina litigation, taking place amidst the invalidation of its Congressional districts, has led to an order to halt the printing of ballots pending review of the NACCP’s challenge of the language of two Constitutional amendments set for the November ballot. Analysts claim that these developments threaten chaos for the upcoming general elections.
  • Tallahassee Mayor Andrew Gillum’s stunning upset in Tuesday’s Democratic gubernatorial primary has brought attention to the ongoing FBI corruption investigation that appears to be focused on Tallahassee City government. Since Gillum’s victory, both Slate and Fox News have covered the investigation and its nexus to the mayor.
  • Ex-Pa. Mayor Convicted In Pay-To-Play SchemeLaw 360 reports that a Pennsylvania federal jury on Thursday found ex-Reading Mayor Vaughn Spencer guilty on charges of bribery and wire fraud in connection with a scheme in which he solicited campaign donations from city vendors in exchange for lucrative contracts.

WEEK OF AUGUST 24, 2018

Latest Developments:

 The Governor of New York signed SB 4761, which bans the use of placement agents, including registered lobbyists, who seek to obtain investments by the New York State Common Retirement Fund.  The bill takes effect immediately.

 The Los Angeles City Ethics Commission met Tuesday, August 21.  The Commission’s agenda included possible action on various proposed campaign finance changes.  The result, according to the Los Angeles Times, is that the Commission tabled a proposal to ban contributions from real estate developers.  However, the Commission approved increased public financing provisions (matching funds) and sent that proposal to the City Council for consideration.

 The Kansas Governmental Ethics Commission voted this week to permit the use of campaign funds to pay for child care, according to KCUR.  The intent is to make it easier for parents to run for office.  The move follows a similar decision by the Federal Election Commission earlier this year, as reported by NPR.

 The Kentucky Legislative Ethics Commission asked the Legislature to amend the state’s ethics provisions.  According to WPFL, the Commission is seeking authority to dismiss politically motivated charges when the complainant makes public statements about the case.  The commission also proposed provisions requiring additional gift disclosure and clarifying that the Commission has jurisdiction over those who have left office.

The Baltimore City Council gave initial approval to an ordinance that would require quarterly lobbyist disclosure reports instead of annual reports.  A final vote on the Transparency in Lobbying Act is scheduled for September 17, 2018.

 Reminder:  

 Our annual Essential Ethics Workshop will be held on Wednesday, September 5 at the University Club in Washington, D.C. from 12:30 – 2 p.m.  We’ll be discussing new developments in political law, sharing experiences and best practices for responding to lobby audits, and discussing the potential changes to the Supreme Court’s campaign finance precedent in light of the upcoming appointment of a new Justice.   This event is free and open to all clients.  Contact Donna Flanagan for more information.

In case you missed it:

  • First Amendment Lawsuit FiledCourthouse News Services reports that a coalition of press entities, including the Washington Post, has filed suit to block Maryland’s new online political ad disclosure law.  The plaintiffs contend that the law is unconstitutional for its regulation of newspapers, including the threat of criminal prosecution for non-compliance, and that its provisions are unconstitutionally vague and overbroad.  They also assert that the law is impossible to follow and conflicts with the Communications Decency Act of 1996.  As we reported earlier, Google announced that it could not comply with the law and therefore would no longer accept political ads in Maryland, but Facebook is on board with the law.
  • More Money, eh?  The Richland Standard reports that Canada’s Lobby Czar is seeking a budget increase to modernize the office and respond to growing demands.  Her budget has not been increased in 10 years, despite an increase in the number of lobbyists.  The office is seeking money to fund a new website and updates to the lobby registry.
  • Looking for a Drain in the Swamp:  Elizabeth Warren has proposedsweeping anti-corruption legislation according to Politico.  The Anti-Corruption and Integrity Act proposes a lifetime ban on lobbying by the President, members of Congress, and cabinet officials.  It would also impose a six-year revolving-door restriction on other federal officials and ban lobbying by foreign governments and companies.  The measure would ban lobbyist campaign contributions, contingency fees, and gifts to members of Congress.
  • Please, No Green from Grass:   According to the New York Times, Wells Fargo noticed a candidate for Florida Agriculture Commissioner was “advocating for expanded patient access to medical marijuana.”  The bank asked the campaign if it would accept contributions from lobbyists and others in the medical marijuana industry. After the campaign replied affirmatively, the bank closed the campaign’s account.  Bank of America, Citigroup and JPMorgan Chase said their banks did not have policies that would prevent them from offering services to a candidate who accepts money from that industry.

WEEK OF AUGUST 17, 2018

Latest Developments:

 A United States District Court Judge in Wyoming found the state’s ban on campaign robocalls to be unconstitutional.  According to Government.com, the ban on political calls was far more restrictive than the limits on commercial robocalls.  In Victory Processing LLC. v. Wyoming Attorney General, the plaintiffs asserted that the robocalls ban violated their right to free speech under the First Amendment.

 The California Fair Political Practices Commission met on Thursday, August 16.  The Commission announced that its phone lines would be open longer hours beginning September 1, and running through Election Day. (Temporary hours: Mon.-Tue. 9 – 12; Wed.-Thurs. 1 – 4 [Usual hours are Mon.-Thurs. 9-11:30 a.m.])  The Commission also adopted updated campaign manuals and forms, with changes reflecting new legislation.

The Los Angeles City Ethics Commission meets next Tuesday, August 21.  The Commission’s agenda includes possible action on proposed campaign finance changes.

 Reminder:  

 Our annual Essential Ethics Workshop will be held on Wednesday, September 5 at the University Club in Washington, D.C. from 12:30 – 2 p.m.  We’ll be discussing new developments in political law, sharing experiences and best practices for responding to lobby audits, and discussing the potential changes to the Supreme Court’s campaign finance precedent in light of the upcoming appointment of a new Justice.   This event is free and open to all clients.  Contact Donna Flanagan for more information.

In case you missed it:

  • New “Disclosure” SubterfugesPolitico reports that the newest method to avoid donor disclosure is timing formation of committees so close to an election that the first donor disclosure reports are due after the election.  Another method is to borrow the money to make expenditures and collect donations later to avoid donor disclosure on pre-election reports.
  • It’s an election year, and California’s campaign watchdogs are busy fighting among themselves,” according to the Sacramento Bee.  The Bee has a review of the various commissioners’ shenanigans over the past year, from their successful efforts to increase their pay to “self-indulgent” review and revision of internal operations.
  • Atlanta Lobby Ordinance Introduced:  The Atlanta Daily World reports that the City of Atlanta is considering requiring all lobbyists to register.  The proposal would cover lobbying pertaining to legislation, contracts, and zoning matters.  The move follows a widening corruption investigation by federal prosecutors who are looking into payments to city employees who steered contracts to vendors who paid them, as reported by the Charlotte Observer.
  • Trump Discounts Raise Ethics Issues: Politico reports that President Trump’s Bedminster, New Jersey golf club is offering merchandise discounts to individuals who sport Secret Service pins that identify them as administration staffers.  Unless the discount is available to all employees, it would appear to be a gift, subject to federal gift limitations, according to sources quoted in the article.

WEEK OF AUGUST 10, 2018

Latest Developments:

A federal District Court Judge in Washington, D.C. issued a 113-page opinion invalidating a 38-year old Federal Election Commission regulation that required any person’s federal Independent Expenditure Report to only disclose contributors to the ad addressed by that report.  The Court instead held that the makers of an IE must disclose all of its contributors.  The decision’s implications for trade associations and nonprofits making any independent expenditures, and their donors, could be significant, and the Court stated that the FEC could enforce this requirement retroactively.  Pro-regulation groups hailed the decision as a blow to “dark money groups,” according to Politico.

The Wisconsin Ethics Commission has appointed another interim Ethics Administrator:  The Commission has appointed Florida attorney Daniel Carlton, Jr. as its new interim administrator.  The Wisconsin Law Journal reports that Carlton previously worked for the Florida Ethics Commission.  Wisconsin has struggled to find an acceptable leader since the demise of the old Government Accountability Board which occurred as a result of that board’s investigation of Gov. Scott Walker.

The California Fair Political Practices Commission meets next Thursday, August 16.  The Agenda, includes discussions about newly revised manuals and the use of Bitcoin for contributions.  The Commission will consider potential regulations about the use of Bitcoin at its September meeting and regulations for top donor disclosure under the Disclose Act at its October meeting.  Curiously, following appointment of a new Chair, none of the upstart subcommittees met in the past month.  Perhaps peace has returned to the Commission.

 

In case you missed it:

  • CNN reports that Special Counsel Robert Mueller has referred several possible violations of FARA to federal prosecutors in New York. The article infers that individuals who worked for the Podesta Group, Mercury Public Affairs, and Skadden Arps failed to register under the Foreign Agent Registration Act (FARA) while doing work for groups associated with Ukraine.
  • The New York Joint Commission on Public Ethics has been called “a puppet controlled by the Governor.” City & State New York reports that since JCOPE has been in existence, it has found only two legislators guilty of misconduct, while prosecutors have convicted 15 legislators of crimes.  Cuomo’s opponents are calling for a new ethics structure; the article notes that both Cuomo and his predecessor, Eliott Spitzer, created new ethics commissions upon taking office.
  • Up North, there is a different approachCNBC reports that Mario Dion, Canada’s new Conflict of Interest and Ethics Commissioner says that “My dream is that I will never be called (a lapdog).”  He says he would rather be criticized for being too harsh than for being too lenient.
  • NBC News asserts that the Trump Hotel in Washington, D.C. may be a “5-star conflict of interest.” Using public filings and social media sites, NBC analyzed spending at the hotel by the Republican Party, foreign governments, and federal agencies.  The report indicates that the hotel “continues to serve as a clubhouse for the (Trump) administration and its supporters.”

Reminder:  

Our annual Essential Ethics Workshop will be held on Wednesday, September 5 at the University Club in Washington, D.C. from 12:30 – 2 pm.  We’ll be discussing new developments in political law, sharing experiences and best practices for responding to lobby audits, and discussing the potential changes to the Supreme Court’s campaign finance precedent in light of the upcoming appointment of a new Justice.   This event is free and open to all clients.  Contact Donna Flanagan for more information.

WEEK OF AUGUST 3, 2018

Latest Developments:

The New York Joint Commission on Public Ethics (JCOPE) met on July 31.  The Commission highlighted its efforts to educate the public on the new lobby regulations that take effect on July 1.  The Commission will hold an educational program in Albany on September 20 for lobbyists and others to learn about the new regulations.  That program will be posted later on the Commission’s website.  The Commission has also issued a “Key Features” document that is an effort to put highlights of the new regulations in plain English.  In addition, the Commission will host an educational seminar on the First Amendment and lobbying in October.

A North Dakota Ethics constitutional amendment is the first measure to qualify for the November Ballot.  The West Fargo Pioneer reports that the initiative measure would “prevent lobbyists from giving gifts to public officials and would establish an ethics commission that could investigate public officials, candidates, and lobbyists.”

 

In case you missed it:

  • In Oklahoma, it’s the Legislature vs. the Ethics CommissionNewsOK reports on the continuing battle between the state’s legislature and the Oklahoma Ethics Commission over budget appropriations for the new fiscal year.  The Commission requested $4.5 million but received only $710,000 from the legislature.  The matter is before the State Supreme Court.  The Commission’s counsel suggested the agency was underfunded because it has imposed new restrictions on legislators, including limiting gifts from lobbyists.
  • Dems and GOP agree on something: How to use PACs to fund luxury lifestyles.  NBC News takes a look at a new report by the Campaign Legal Center, which documents incredible amounts of leadership PAC money spent to support federal officeholders’ over-the-top lifestyles.
  • Soda Tax Proponents Failed to Report Lobby Activity:  Philadelphians for Fair Future, which raised over $2 million to promote a tax on soda, was fined more than $8,000 for multiple ethics violations, including failure to register and report its lobby activities.  The Philadelphia Business Journal reports the group hired five different firms and individuals who lobbied on its behalf, but all failed to register as lobbyists and neither the lobbyists nor PFF reported any of the activity.  PFF characterized the matter as “simple filing errors” that were inadvertent.
  • Liberals have Dark Money too:  The Sixteen Thirty Fund has been identified as the source of funding for a myriad of liberal causes.  Politico characterizes the group as a secret organization using the type of structure developed by the Koch brothers.  The group has engaged in advocacy in about a dozen congressional races in 2018.
  • Pay-to-Play in New York StateChief Investment Officer reports that a New York State Common Retirement Fund portfolio manager was sentenced to 21 months in prison for taking bribes in the form of “prostitutes, narcotics, travel, lavish meals, tickets to sporting events, luxury gifts, and cash payments.”  A managing director for Sterne Agee and a Vice President of FTN Financial also pled guilty to providing the bribes.
  • Reform of the Foreign Agents Registration Act appears to be supported by both sides of the aisle.  But Rollcall reports that congressional efforts to update FARA have stalled just as Paul Manafort goes to trial on a wide variety of charges, including the allegation that he failed to register as required under FARA.  Although a dozen or more bills have been introduced, no single bill has emerged with any momentum.

WEEK OF JULY 27, 2018

Latest Developments:

The Governor of Montana has filed suit against the U.S. Treasury Department and Internal Revenue Service seeking to block the revenue procedure that eliminates the reporting of the identity of contributors to politically active nonprofits that make political expenditures.  Reuters reports that Governor Steve Bullock believes the loss of reporting will lead to foreign money in U.S. elections. The changes were made by the U.S. Treasury Department in Revenue Procedure 2018-38, as we reported last week.

The New York Joint Commission on Public Ethics (JCOPE) meets next Tuesday, July 31, but does not list anything particularly remarkable on its agenda.

The Georgia Government Transparency and Campaign Finance Commission has posted the General Assembly’s sexual harassment policy.  As we told you in our May 18, 2018 edition, the Governor of Georgia signed H.B. 973 on May 10, 2018.  That bill requires all lobbyists to agree to abide by the sexual harassment policy.  The policy applies to lobbyists, “during the period in which they either have legislative business at the state capitol or are doing legislative business with the Senate, the House of Representatives, or a joint office (‘third parties’).”  Lobbyists are required to acknowledge that they have read the policy each time they register.

Reminder:  

August 1 is the PLI One-Hour Briefing on the “Basics of the Federal Election Campaign Act 2018.”  You can sign up at the Practising Law Institute.

In case you missed it:

  • A jury in Alabama convicted an attorney and a coal executive of bribing a state legislator.  The Lexington Ledger reports that an attorney from Balch and Bingham along with a Vice President of Drummond Co. were found guilty of conspiracy, bribery, three counts of honest services wire fraud and money laundering.  The defendants asked the legislator to oppose expansion of an EPA Superfund site and prioritization of the cleanup.
  • The Los Angeles Times reports that the California Secretary of State’s efforts to update the state’s website for disclosure of campaign contributions and lobby activity is nearly a year behind schedule and its budget has doubled.
  • Sunshine in the Orange County, CA Ethics Commission is hard to findThe Voice of OC tells us that Orange County Campaign Finance and Ethics Commission officials have declined to identify persons who were caught violating county campaign finance laws.  Notwithstanding the California Public Records Act, The Voice reports that the “enforcement process was set up to be handled mostly in secret so violations wouldn’t be used in political campaigns.”
  • Congressional Leadership PACs under ScrutinyRoll Call reports that a bipartisan group of retired congressmen have sent a letter to the FEC asking it to re-examine the use of contributions to congressional leadership PACs for expenses such as “country club fees, clothing purchases, and trips to Disneyworld.”  A report indicated that only 45% of the money contributed actually went to candidates or political committees.
  • Calmatters describes some of the recent turmoil at the California Fair Political Practices Commission.  Through it all, the commission has settled a record number of cases and imposed more than a million dollars in fines in the last year.  However, it also has an enormous backlog of cases.

WEEK OF JULY 20, 2018

Latest Developments:

The United States Treasury Department announced that it will no longer require the names and addresses of donors to be included on Schedule B, which is filed with IRS Form 990, for any nonprofit other than a charity (501(c)(3) organization) or PAC (527 organization).  For example, nonprofit social organizations that engage in political speech and register under IRC Section 501(c)(4), such as ballot measure committees, will no longer disclose the names and addresses of their donors.  Filers will still disclose each contribution of $5,000 or more received without names and addresses.  The changes are contained in Revenue Procedure 2018-38 and will apply to tax years ending on or after December 31, 2018.

The California Fair Political Practices Commission met Thursday, July 19, 2018, with the following results:

  • New Chair Alice Germond expressed three goals: (1) to hold more meetings around the state, outside of Sacramento; (2) to partner with educational institutions and public groups with interest in the Commission; and (3) to continue the streamlining process, making things simple and clear for individuals who want to run for office.
  • The Commission voted to withdraw the Andrews advice letter, which required charities who have contributed restricted funds to nevertheless be listed as a top donor, and instead create a regulation on this point as to when a top donor may be omitted.
  • The Commission announced the appointment of a chair for its task force concerning enforcement.
  • The Commission voted to support AB 2689, which prohibits legislative contributions by appointees subject to legislative confirmation.  It deadlocked on support for AB 84, a bill about legislative caucus committees (see below).

The San Francisco Ethics Commission meets Friday, July 20.  The Commission’s agenda includes a discussion of staff proposals for regulations regarding requests for opinions.

Reminder:   August 1 is the PLI One-Hour Briefing on the “Basics of the Federal Election Campaign Act 2018.”  You can sign up at the Practising Law Institute.

In case you missed it:

  • Politico reports that the Treasury Department is on the defensive over its decision to stop collecting donor information.  (See above.)  The department says it doesn’t use the information, the collection of which dates to the Nixon administration.  Critics say it eliminates transparency and the ability to follow the money.
  • Rollcall has reactions to the Treasury’s new Revenue Procedure from both sides.  On one side, Sen. Mitch McConnell said that the existing government collection of data can “chill political speech and invite harassment of citizens.”  At the other end of the spectrum, Sen. Jon Tester called the move, “the swampiest, darkest, dirtiest decision.”
  • The Campaign Legal Center issued a summary of Supreme Court Nominee Brett Kavanaugh’s stance on campaign finance issues.  “(H)e would expand the power of big money in politics,” according to the article.  The Institute for Free Speech responded with its own analysis castigating the CLC, and noting that Judge Kavanaugh’s opinions, “generally gave the First Amendment a robust interpretation protective of individual rights.”
  • New Ways to Give:  California Assembly Bill 84 was gutted on July 5, and new provisions were inserted.  The newly amended bill would permit each party in each house of the legislature to establish a “caucus committee” with the same contribution limits as a political party committee.  Politico reports that state Democratic Party officials fear the move will dilute their power, saying that the bill would “untether some campaign cash from the party endorsement system.”  The bill would permit legislative leaders to control more campaign cash.
  • Ouch:  The Security and Exchange Commission fined Sofinnova Ventures, a bioscience investment firm, $120,000 for a $2,500 contribution made by one of its employees that violated the SEC’s pay-to-play rulePensions & Investments reports that the Illinois Teachers’ Retirement System had invested some $45 million in Sofinnova funds and the firm had a contract to provide investment services to the System when one of its employees made the contribution to a candidate for Governor, who subsequently won.

WEEK OF JULY 13, 2018

Latest Developments:

Sexual Harassment Developments: In Maine, SB 695 was enacted. It requires Legislators, legislative staff and lobbyists to attend and complete a course of in- person education and training regarding harassment, including sexual harassment, at the beginning of each regular session of the Legislature. It requires the Legislative Council to develop and implement the course. Rules and further instructions are pending.

The California Fair Political Practices Commission meets July 19. The commission is slated to further discuss appropriate questions for an AG Opinion regarding the Bagley-Keene Open Meeting Act that they agreed to request at the January 2018 meeting. Further, in keeping with a February 18th agreement, a task force is meeting to conduct a holistic review of the Enforcement Division’s practices and procedures. One of its purposes is to create a procedures manual that provides an overview of how an enforcement complaint is filed, opened, investigated and resolved. Our firm, among others, is represented on the task force.

In case you missed it:

  • What’s good for the goose…USA TODAY published a story in which they calculate that so-called “secret money” (or perhaps the more ominous and ubiquitous pejorative label “dark money”) has thus far funded more than 40% of outside congressional ads. The supposedly objective story appeared to convey a bias against this form of campaign finance, taking to task what are considered Republican friendly groups as being on the offensive while portraying Democratic friendly groups as merely spending this “secret money” as defensive measures.
  • Free Speech Can’t Catch a Break:  Only July 12, NPR reviewed “A Riveting Documentary [that] Sheds Light on ‘Dark Money.’” The similarly titled Dark Money film focuses on the ongoing campaign finance litigation in Montana and is directed by Kimberly Reed, a native of that state. The review agreed entirely with the film’s premise, that “invisible corporate shenanigans…threatens to sink our democracy outright,” employing dramatic language throughout, labeling the campaign finance issues an “assault on the American electoral and judicial process by corporations whose agenda is nothing less than the dismantling of government itself.” The melodrama reaches an apex when the reviewer describes Dark Money as “a hair-raisingly specific American tale of illicit power.”

WEEK OF JULY 6, 2018

Latest Developments:

The California Fair Political Practices Enforcement Review Task Force meets next Wednesday, June 11.  The Commission created the task force to obtain input from the regulated community and other interested parties regarding creating/revising the commission’s enforcement manual.  The agenda includes organizational activities such as selecting a leader and establishing goals.

The Missouri Ethics Commission issued two new regulations that contain (1) clarifications on when an out-of-state committee, including a federal PAC, must register and (2) related definitions. The regulations take effect on August 8, 2018, in time for the General Election Cycle.

In case you missed it:

  • The New York Times traces the Supreme Court’s view of the First Amendment over the last few decades, from the days of Earl Warren to the Roberts court.  The most recent incarnation of the court is skeptical about any government effort to regulate speech.  Decisions from Buckley v. Valeo to Citizen’s United to this year’s decisions regarding speech about abortion and union dues show the court’s evolving view of the First Amendment.
  • Not even Google is that tech savvy:  Google says it lacks the capability to comply with new Maryland requirements for disclosure of online advertisements, according to the Baltimore Sun.  The new law requires disclosure of who is paying for political ads and how much they are paying.  In the absence of the ability to comply, Google indicates that it will stop selling political ads for Maryland state and local races.
  • Ann Ravel, former Chair of the Federal Election Commission is now on the staff of Maplight, which is known for its online research tools regarding the influence of money on political decisions.   According to Maplight, “She will develop a robust, evidence-based policy platform to address deceptive politics and strategically advance solutions that safeguard our political system.”
  • A reporter for TV Station WRAL Raleigh, in North Carolina tracked down dark money spending on TV ads, Facebook ads, and mailers in North Carolina campaigns.  According the report, the common element behind the various groups with different names is a single Democratic political law attorney, Michael Weisel.
  • The Texas Statesman reports that the Texas Ethics Commission fined a consultant for creating a deceptive website to attack a candidate.  Mike Lewis, a candidate for County Chair of the Democratic Party created a website called LewisforChair.com.  According to the Commission , the consultant created a website called Lewis4Chair that redirected users to TheRealMikeLewis.com.  The consultant violated a Texas statute that prohibits entering into a contract to publish a campaign communication from a source other than its true source with intent to injure a candidate and was fined $1,500.

WEEK OF JUNE 29, 2018

Latest Developments:

California Governor Jerry Brown appointed a new Chair of the state’s Fair Political Practices Commission last Friday.  According to the Sacramento Bee, Alice T. Germond joins the Commission after a lengthy political career that includes serving as the Governor’s Deputy Campaign Manager in his 1978 re-election.  Her term will expire in January.

In case you missed it:

  • No coordination allowed – but signals permitted:  The Federal Election Commission has dismissed a complaint that a candidate’s public posts on his website that were subsequently copied by an independent expenditure committee were “coordinated.”  According to Politico, candidates signaled their desires this way during the 2016 elections.  The Commission found that similarities in ads were insignificant evidence of private coordination.
  • Kaiser Health News reports that when a drug company was faced with public pressure over the high cost of its products, it spent more on Washington lobbyists and its PAC spent more money on federal candidates, doubling its contributions over that of the previous year.  Facing mounting criticism, including a lawsuit and a dropping stock price, Novo Nordisk, a Danish multinational, doubled what its American employee PAC spent on federal candidates and the company itself increased what it spent on lobbying to $3.2 million.
  • How do you know if you are a “foreign agent?” Bloomberg Government describes the conflicting advice often given by the federal Justice Department.  Bloomberg looked at the advisory opinions recently released by the Justice Department and found a very complex decision-making process as to who is a foreign agent and who is not.
  • Congressional staffers have first class seats on the gravy train.  The Washington Examiner reports that one congressional staffer, Oliver Schwab who is chief of staff to Rep. David Schweikert, managed to spend more than $5,000 from congressional funds on a lavish Super Bowl weekend in 2015, which doesn’t include the many gifts of entertainment received over that weekend.  He spent over $800 per night on a hotel room and $660 for a rental car for the weekend.  Politico indicates that the House Ethics Committee has launched an investigation into Schweikert and Schwab’s spending of public funds and alleged illegal campaign contributions.
  • Don’t mess with Montana:  The Missoula Current reports that, in a dispute between the Montana Commissioner of Political Practices and the Montana Shooting Sports Association, the association alleges that it has been fined $28,000 for stapling supporting documents to the wrong form.  The president of the association states that all forms were placed in one envelope, but that a list of candidates that should have been attached to Form C-2 was instead attached to Form C-7.
  • An Arkansas State Senator was sentenced to 18 months in federal prison for submitting fraudulent bids through straw men to the Western Arkansas Economic Development District, which was responsible for administering state General Improvement Funds in his district, according to Arkansas Business. The now former Senator pocketed tens of thousands of dollars in state funds; the court ordered restitution.

WEEK OF JUNE 22, 2018

Latest Developments:

 The Oklahoma Ethics Commission raised lobby registration fees by $100 to $250, beginning July 1.  According to The Oklahoman, the increase follows a dispute with the state’s legislature which gave the commission no general fund monies for support for the upcoming fiscal year.  The commission will be forced to fund all of its operations from fee income during the 2018-2019 fiscal year.

 Colorado Secretary of State Wayne Williams issued new Campaign and Political Finance Regulations on June 19, 2018, following a federal court decision in Holland v. Williams last week, as reported here.  The new rules include a different procedure for filing complaints that allege a violation of campaign and political finance laws. (See Rule 18 of the new regulations.)  Complaints are no longer sent to the Office of Administrative Courts within 3 days, but instead are reviewed and may be investigated by the Secretary of State’s Office.  Someone deserves an award for responsive governmental action – these new rules were adopted as emergency regulations exactly one week after the federal district court issued its opinion.  The Denver Post reports on the details.

The California Fair Political Practices Commission met Thursday, June 21, 2018.  Following the resignation of the Chair and her most vocal opponent, the Commission returned to a more collegial form.  Among the agenda items discussed:

  • The Ad Hoc Committee on Enforcement has 15 members who have volunteered to participate.
  • The Commission debated whether Bitcoin and other virtual currencies should be acceptable as campaign contributions and whether the nature of crypto currencies is as cash or as property.  (See the action of the federal Office of Government Ethics, below).  Staff will continue to research the issue.
  • The Commission voted to support 3 bills pending before the legislature:  AB 664 (prohibits spouse compensation from campaign funds), AB 2155 (ad disclosures), and AB 2880 (contracts with local ethics agencies).
  • Bob Stern’s request that the Commission sponsor legislation year to make the Chair of the Commission a part-time position did not have the unanimous support required to move forward, and the concept was referred to the Subcommittee on Law and Policy for further study.  The Los Angeles Times reports that the Commissioners essentially deadlocked on the matter.

The United States Office of Government Ethics has issued Guidance that virtual currencies must be disclosed as “property.”  Virtual currencies (such as Bitcoin) are not true legal tender and, as such, federal officers and employees must disclose their holdings in these crypto currencies.  As an investment asset, holding a virtual currency may create a conflict of interest, according to the Guidance, dated June 18, 2018.

The New York Joint Commission on Public Ethics (JCOPE) meets next Tuesday with a very light agenda.

In case you missed it:

  • The New York Times reports on the phenomenon of consultants who peddle influence failing to register as lobbyists.  Tightening the rules has resulted in more lobbyists deregistering and becoming shadow lobbyists who purport to be political strategists or consultants rather than lobbyists.
  • Kansas SB 394 takes effect July 1, 2018.  That bill broadens the definition of lobbying to include most lobbying of the executive branch (not just rules and regulations) and administrative matters in the judicial branch.  The bill will cover procurement lobbying, with minor exceptions.  It also increases the executive branch gift of a meal provision from $25 to $40 to match the general legislative lobbyist gift limit.
  • Misuse of Expertise:  A Justice of the West Virginia Supreme Court, who authored a book on corruption in the state, has been indicted on 22 federal corruption charges.  Law and Crime reports that Justice Allen Loughry has been charged with, among other things, using a government credit card for personal use and taking a historical Supreme Court desk to his house for use in a home office.

WEEK OF JUNE 15, 2018

Latest Developments:

The United States Supreme Court says it’s “OK” to wear your “political” T Shirt to the Polls.  In Minnesota Voters Alliance v. Mansky, the court (in a 7 to 2 decision) struck down Minnesota’s ban on wearing political apparel at a polling station as a violation of the Free Speech clause of the First Amendment.  The court indicated that a state could prohibit forms of campaign advocacy at the polling place, but found Minnesota’s ban too broad.  The ban on “political” apparel was used to initially bar a voter with a T shirt containing a Tea Party Patriots’ logo and the words, “Don’t Tread on Me,” and a button that said, “Please ID Me.”

The Eighth Circuit Court of Appeals struck down a Missouri law that required committees to form and register at least 30 days before an election.  In Missourians for Fiscal Responsibility v. Klahr, the court found that that the restriction “prohibits (or at least significantly burdens)” political speech.  The Missourians group had formed 14 days before an election, in violation of the Missouri statute.  The court noted that the only legitimate governmental interest for restricting campaign finances is preventing corruption or the appearance of corruption.  The time restriction was not narrowly tailored and did not address that issue.

The San Francisco Ethics Commission meets Friday, June 15.  The agenda includes a discussion about future priorities.  Among the 20 items on the “Policy Prioritization Plan” are reviews of the lobby code, expenditure lobbying, the major developer disclosure program, behested payments, and the lobby regulations.

The California Fair Political Practices Commission meets next Thursday.  Among the agenda items:

  • Bob Stern is asking the Commission to sponsor legislation this year to make the Chair of the Commission a part-time position by January 2019.  He states that he “made a mistake” in making the Chair a full-time position when he drafted the original Political Reform Act initiative.
  • Staff is asking the Commission to consider Regulation 18700.2 at its August meeting.  That regulation would determine when an official has a financial interest in a parent, subsidiary, or otherwise related business entity for purposes of the Political Reform Act’s conflict of interest provisions.
  • Commissioner Audero of the California Fair Political Practices Commission resigned following the resignation of the Chair.  The Sacramento Bee reports that Commissioner Audero has been appointed by as the U.S. Magistrate for the Central District of California.  Her departure leaves in doubt how the two-person subcommittees will function.  The Commission is down to only three sitting members of a 5-member panel.
  • In response to commissioners’ request, staff is proposing that the Commission hold its September meeting at Los Angeles City Hall.

In case you missed it:

  • The S. Justice Department released 49 opinions regarding the Foreign Agents Registration Act (FARA).  These opinions date back to 2010 and provide guidance as to when registration is required under FARA.
  • Colorado Politics reports that a federal district judge in Colorado has barred private complaints against political speech.  Under the state’s campaign finance laws, any person who believes that a campaign finance violation has occurred may file a written complaint which must be referred to an administrative law judge within three days.  In Holland v. Williams, a mom who placed ads in the local paper that criticized the Common Core education curriculum and urged citizens to vote in a school board election, but did not urge or oppose any particular candidate, became the subject of a complaint that the mom had not registered as a political committee.  The court found the enforcement provisions to be unconstitutional. The law purported to regulate core political speech because it was content-based, and the statue failed the “strict scrutiny” test.
  • The San Francisco Board of Supervisors approved amendments to the city’s Campaign and Governmental Conduct Code, which take effect on June 30, 2018.  Among other things, the changes increase disclosure requirements, revise pay-to-play provisions, expand the class of persons who may bring a private attorney general action and collect fees and costs, and impose new duties on public officials regarding conflicts and recusals.

WEEK OF JUNE 8, 2018

Latest Developments:

Montana Governor Steve Bullock signed an executive order today (6/8/18) that requires anyone who seeks to do business with the state’s executive branch (contracts for goods of more than $50,000 or services of more than $25,000) disclose any expenditures for electioneering communications if the aggregate is over $2,500 in the past 24 months.  Contracts that last more than 2 years would require an annual, updated disclosure.  The state’s Department of Administration is directed to implement the disclosure policy by September 1, 2018.

The California Fair Political Practices Commission held a special meeting on Monday, June 4, 2018.  The four commission members unanimously approved new governance regulations that strip power from the chair (who resigned last week) and divide it among two bipartisan subcommittees and the Executive Director.

In case you missed it:

  • Before his resignation, the Governor of Missouri, Eric Greitens, was ordered to comply with a legislative subpoena to produce records of his nonprofit and his campaign to show whether the campaign coordinated so-called “dark money” spending by the nonprofit in support of the Governor, according to the Kansas City Star.  However, following his resignation, the legislative investigation ended and the special counsel for the legislative committee withdrew his request, but reiterated his view that the records ought to be public.

WEEK OF JUNE 1, 2018

Latest Developments:

The Oklahoma Ethics Commission meets Friday, June 8.  A discussion of the fee schedule, effective July 1, 2018 is on the agenda.  Among the fees that are the subject of review, are registration fees for lobbyists, lobbyist employers, and PACs, and late fees.

The California Fair Political Practices Commission will hold a special meeting on Monday, June 4, 2018.  The sole matter on the Commission’s agenda is approval of governance regulations to establish two bipartisan subcommittees, a Budget and Personnel Committee and a Law and Policy Committee.  Each committee will consist of two members each, none of whom is the Chair of the Commission.  Facing a mutinous group of commissioners, the Sacramento Bee reported that Chair Remke resigned.

The Oakland Ethics Commission meets Monday, June 4, 2018, with a long but unremarkable agenda.  However, within the Director’s report are the goals for 2018-2019, which include establishing e-filing for lobbyist registrations and for reporting of behested payments.

In case you missed it:

  • NPR reports on the deadlocked efforts of the Federal Election Commission to limit foreign influence.  The partisan division of the commission remains a roadblock to any solution.
  • The risks of secret corporate political spending are discussed in an article by The Hill.  Following the revelations of AT&T and Novartis’ spending on Michael Cohen, The Hill notes that, “Secrecy blown up by inadvertent disclosure can aggravate the bad optics of a suspicious expenditure on politics.”
  • A cautionary tale from Rod Blagojevich (remember him?):  The Washington Examiner reports on the Wall Street Journal interview in which the former Governor of Illinois philosophizes about his prison time (year 6 of 14) for what he characterizes as “practicing politics” by raising campaign contributions.  The U.S. Supreme Court declined to hear his appeal in April of this year.
  • Is the Federal Election Commission powerful enough to kill Zombies? Bloomberg Government reports that the Campaign Legal Center and others are pushing the FEC to adopt rules to crack down on the perceived personal use of old “zombie” campaign funds.  The FEC has announced that it will review campaign funds for former officeholders who have been out of office for more than one term, beginning in July.

WEEK OF MAY 25, 2018

Latest Developments:

The New York Joint Commission on Public Ethics met Tuesday, May 22, 2018.  Among the agenda items discussed:

  • The Executive Director reported on three legislative proposals, including one to require lobbyist disclosure of campaign fundraising activity, one to impose accomplice liability for violations of ethics laws, and another that would enhance penalties for violators including permitting debarment of lobbyists for failure to file required reports.  The latter proposal would also extend the “look-back” period for repeat offenders from 5 years to 10.  The Executive Director noted that three proposals from 2017 were introduced as bills, although the Commission has not taken a position on any of them.  The 2018 proposals, as with the prior year, are simply staff suggestions that are put out for public discussion.  The Commission did not take any formal action to endorse any of the current proposals.
  • The Commission unanimously adopted amendments to four regulations pertaining to Financial Disclosure Statements.

The Oklahoma Legislature adjourned on May 3, 2018.  Under the unique provisions of the Oklahoma Constitution, Ethics Rule amendments proposed by the Oklahoma Ethics Commission that were not rejected by the state’s legislature become statutes and are operative upon adjournment.  Changes include:

  • Documents that are required to be filed electronically are due on the date specified, and the deadline is no longer extended to the next business day after a weekend or holiday, under amended Rule 1.4.  For example, lobbyist reports that were due on Saturday, May 5 technically were due on that day, not on the following Monday.
  • PACs that have made a contribution to a candidate may make a post-election contribution if the aggregate does not exceed the $5,000 contribution limit.  Under the former version of Rule 2.33, only PACs that did not make any contribution to that candidate were permitted to make any post-election contribution.

In case you missed it:

  • US News and World Report tells us that the Ninth Circuit Court of Appeals has upheld Montana’s campaign reporting requirements.  In Montanans for Community Development v. Mangan, the court found that the appellant’s claim that the law was vague, overbroad, and unconstitutional as applied to MCD was without merit.  The court found, among other things, that the disclosure requirements are substantially related to a sufficiently important governmental interest.
  • The Digital Advertising Alliance, an organization that establishes and enforces social media advertising guidelines, has announced a new set of guidelines for political advertising, according to the Wall Street Journal. Ads that advocate the election or defeat of a candidate for federal and certain statewide elections must include a link to a site with additional detail about who placed the ad, their contact information, and the details of their political spending and contributions.
  • The Associated Press reports that the U.S. Justice Department is cracking down on violations of the Foreign Agents Registration Act (FARA).  According to the AP’s article, the Justice Department has not changed any interpretation of FARA, but is stepping up enforcement of the act.
  • On May 17, 2018, an  all-Republican panel of the Texas Court of Appeals, Third District in Austin, issued a ruling in Sullivan v. Texas Ethics Commission.  In 2012, the Ethics Commission found that conservative commentator Sullivan, who contacted officials to influence legislation for compensation in his role as President of Empower Texans, failed to register as a lobbyist and fined him $10,000.  Sullivan sought to dismiss the matter under the Texas Citizens Participation Act (TCPA), which protects citizens who speak on matters of public concern from retaliatory lawsuits.  The court found the statutes must be harmonized and held that the TCPA did not apply; it coexists with the lobby registration statute.

WEEK OF MAY 18, 2018

Latest Developments:

The New York Joint Commission on Public Ethics meets next Tuesday, May 22, 2018.  Among the agenda items:

  • A staff report about three legislative proposals, including one to require lobbyist disclosure of campaign contributions and another that would permit debarment of lobbyists for failure to file required reports.
  • Amendments to four regulations pertaining to Financial Disclosure Statements.

Colorado’s Secretary of State adopted new Lobby Regulations.  The regulations, among other things, require that, beginning January 1, 2019, a lobbyist report all position changes (monitor, oppose, or support) with the monthly disclosure statement.  A controversial provision that would have required disclosure of the terms of new lobbyist engagements was dropped.  The regulations take effect May 30, 2018, which is 20 days after publication in the Colorado Register.

The California Fair Political Practices Commission met Thursday, May 17, 2018.  Among the more interesting actions:

  • At the urging of Commissioner Audero, the Commission voted to establish a large task force regarding enforcement review.  The task force will be composed of a wide variety of stakeholders.
  • The Commission voted to circumscribe language that can be put in closure letters in enforcement and voted to amend a closure letter sent to a Novato City Council Member.
  • Commissioner Audero remains fixated on being paid at least minimum wage for her service; however, the Commission failed to take further action on the matter.

The Governor of Georgia signed H.B. 973 on May 10, 2018.  That bill requires all lobbyists to agree to abide by the General Assembly’s sexual harassment policy.

The San Diego City Council passed an amendment to the City’s Election Campaign Control Ordinance.  According to the San Diego Union Tribune, the amended ordinance requires disclosure on the City’s website of donors of $10,000 or more, and adopts provisions similar to the State of California’s recently enacted Disclose Act specifying the size and placement of disclosures in advertising.

In case you missed it:

  • The New York Times reports that on May 11, 2018, a federal appeals court upheld the convictions of three former staffers of Ron Paul’s presidential campaign.  The staffers were convicted of causing false records and expenditure reports and making false statements by arranging for money to be funneled to a state senator who endorsed Paul.
  • Mike Columbo of Nielsen Merksamer is the author of an article for the Institute for Free Speech about Citizens for Responsibility and Ethics in Washington v. Fed. Election Comm’n.  The article analyzes a recent controversial decision by a federal District Court in Washington, D.C.  The court ordered the FEC to presumptively treat all so called “electioneering communications,” which include issue ads run in the months before an election, as evidence a group may be required to register as a political committee and disclose its donors.  The court’s new rule would be retroactively applied to a nonprofit organization’s ads broadcast shortly before the 2010 general election.  The article notes that the decision has been appealed and concludes that it should be reversed.
  • Sheldon Silver, the former Speaker of the New York State Assembly was found guilty in a retrial which took place less than a year after his original conviction was thrown out, according to the New York Times.  He was convicted in 2015, but that conviction was overturned following the U.S. Supreme Court’s 2016 decision regarding former Virginia Governor Bob McDonnell (McDonnell v. United States, 579 U.S. ___ (2016).)
  • An Arkansas Supreme Court Justice, who is running for reelection, filed suit for defamation seeking to end advertisements funded by “dark money.” The Arkansas Times reports that Associate Justice Courtney Goodson is the target of ads by the Judicial Crisis Network, a 501(c)(4) organization that supports one of her opponents.
  • Politico reports that AT&T and Novartis issued mea culpas following the revelation that they engaged Michael Cohen as a consultant.  The CEO of AT&T stated that his General Counsel “David (McAtee)’s number one priority is to ensure every one of the individuals and firms we use in the political arena are people who share our high standards and who we would be proud to have associated with AT&T.” That observation stands as an important reminder that it is a good idea to review all contracts with all political consultants, not just those of registered lobbyists.
  • Following the death of former California Governor George Deukmejian last week, the Sacramento Bee dredged up a parody song from 1987, “Walk like a Deukmejian,” that takes us back to when Jerry Brown was an unabashed liberal whose controversial appointee to the state’s Supreme Court, Rose Bird, was recalled in 1986 following a campaign led by Governor Deukmejian.  If you remember Dr. Demento (who created Weird Al), Walk like an Egyptian, or Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994), you will enjoy the song.

WEEK OF MAY 11, 2018

Latest Developments:

The California Fair Political Practices Commission meets next Thursday, May 17 to take up its regular agenda.  Among the interesting bits before the Commission:

  • Staff has written a memo explaining that Commissioners are not entitled to minimum wage for their Commission activities.  Staff has indicated that it will send its analysis to the Attorney General if the Commission wishes to pursue an Attorney General opinion.
  • Staff is recommending that the Commission formally support SB 1239 (Hertzberg) which would further the efforts to have all campaign filings completed electronically, rather than on paper.  The bill deletes monetary thresholds, thereby requiring all fillings to be made electronically, and makes various technical and clean-up changes.
  • The Executive Director has announced that, “(f)or personal reasons, General Counsel, Jack Woodside is returning to a Staff Counsel position in the Legal Division. Assistant General Counsel, Brian Lau, will be serving as Acting General Counsel.”  A process will be determined as to how to search for a new General Counsel.

The San Francisco Ethics Commission held a special meeting on May 7.

  • New Commissioner:  Kevin Ryan, who resigned after less than a month on the Commission, was replaced by retired Deputy City Attorney Noreen Ambrose.  Ms. Ambrose, in her capacity with the City Attorney’s Office, served variously as General Counsel to the S.F. Port Commission and the S.F. Public Utilities Commission.
  • The Commission adopted the May 3 version of proposed amendments to the Campaign Finance Reform Ordinance.  Those changes generally pertain to additional requirements imposed on candidates, but also require the Commission to create a webpage for each election specifically disclosing/tracing independent expenditures in support or opposition to candidates.  The measure goes back to the Board of Supervisors for consideration.

In case you missed it:

  • The Albany Times Union reports that New York State’s recently passed lobby regulations already may be facing a challenge.   A compliance lawyer says he “plans to file an Article 78 proceeding seeking to overturn them.”  The regulations will require increased disclosure, which has ruffled some feathers.
  • The New York Times Magazine has a fascinating article about corruption around the world.  According to the Times, the trend is that “(c)orruption is being exposed, denounced and prosecuted more vigorously, and at higher levels, than ever.”  Will ethics and compliance with ethical standards take root around the world?  We observe a rise in efforts of U.S. companies that are active internationally seeking to uphold ethical norms.  The Times notes that “The goal is to build ‘systems of integrity’ throughout society.”

WEEK OF MAY 4, 2018

Latest Developments:

The Ninth Circuit Court of Appeals, in a three-paragraph Order on May 2, 2018, denied a petition for rehearing en banc in a case arising from a case that challenged Montana’s campaign contribution limits.  That case, Lair v. Motl, upheld those campaign contribution limits.  Following the short order, five conservative judges wrote a lengthy dissent, as described by the San Francisco Chronicle, asserting that the decision violates economic free speech and contravenes Citizen United and McCutcheon.  The dissent appears to implore the Supreme Court to review the case.

Oakland Public Ethics Commission meets on Monday, May 7, 2018, with a light agenda.

In case you missed it:

  • The Secretary of State of Louisiana, the state’s chief elections officer, has resigned his office amid allegations of sexual harassment, according the New Orleans Times-Picayune.  His resignation is effective May 8, 2018.

WEEK OF APRIL 27, 2018

Latest Developments:

The New York Joint Commission on Public Ethics met on Tuesday, April 24, 2018.  Among the items on the agenda was the Comprehensive Lobbying Regulations.  Following two years of drafts, discussion, debate, and interested persons meetings, the commission formally adopted the Comprehensive Lobby Regulations, which will take effect January 1, 2019.

In case you missed it:

  • Politico reports that the America Action Network (AAN), a nonprofit affiliated with Rep. Paul Ryan, was sued by Citizens for Responsibility and Ethics in Washington (CREW).  CREW alleges that AAN is actually a political committee and should be registered as such, and is not a nonprofit 501(c)(4) social welfare organization.  The purpose of the suit is to make AAN disclose its donors.
  • The Washington Post has an article about Sen. Bob Mendez’s appearance before the Senate Ethics Committee.  The Committee admonished him for accepting gifts and advocating on behalf of the donor.  The Committee also ordered him to pay back the gifts, and – according to USA Today – to update his disclosure forms to reflect the gifts.

WEEK OF APRIL 20, 2018

Latest Developments:

In Kansas, the Governor signed S.B. 394, which adds additional lobbyist registration triggers and additional exceptions to lobbyist registration requirements.  The bill also includes new gift rules and disclosure requirements.

The California Fair Political Practices Commission met on Thursday, April 19, 2018.  Once again, the Commission had a contentious debate over the governance structure of the Commission.  The Chair has met with the Governor’s office and expressed concern that the regulation would fundamentally restructure the Commission in a manner not contemplated by the original initiative statute.  Other Commissioners expressed concern that their proposal was not being moved forward as fast as they expected.

The San Francisco Ethics Commission held a special meeting on Wednesday, April 18, 2018 at which they chose Commissioner Chiu as the Chair and Commissioner Kopp at the Vice Chair.  The Commission discussed the proposed changes to the Anti-Corruption and Accountability Ordinance, as amended in the recent joint meeting with the Board of Supervisors.  The Commission adopted the ordinance with a minor clarifying amendment by Commissioner Kopp.  The Commission voted down Commissioner Kopp’s effort to add back a ban on behested payments and an authorization to share recoveries under a right of private action.  Commissioner Kopp also gave an impassioned speech against pay-to-play contributions.

The Los Angeles City Ethics Commission will meet Tuesday, April 24, 2018.  The agenda includes a presentation in connection with the Commission’s review of campaign finance laws.

The Colorado Secretary of State held a hearing on proposed amended lobby regulations on Monday, April 16. Comments focused on the following points:

  • The increase in disclosure requirements, in general, is burdensome.
  • Requiring that, for each new client, a summary of the terms and conditions of the agreement must be disclosed will impinge on confidential, and proprietary information that generally includes a nondisclosure agreement.
  • Beginning January 1, 2019, the date of each change of position on each bill must be disclosed in the report due the following month, creating a terrible record-keeping burden.

In case you missed it:

  • Arizona Central (USA Today) tells us that a Phoenix legal assistant at a major law firm that lobbies the city pled guilty to one felony count of forgery in a lobby compliance scandal.  After failing to file lobby disclosure reports with the city for two years, the legal assistant forged an attorney’s signature and backdated documents asserting that the reports had been filed.  She was initially charged with 16 counts of perjury, fraud, and filing false documents.  Last year, Phoenix stiffened its penalties for noncompliance as the scandal unfolded given that the city’s lobby law enforcement was found to be “toothless.”  Lobby registrations increased by 23% in the past year.
  • The San Francisco Chronicle reports that City Attorney Dennis Herrera has appointed a former judge and federal prosecutor Kevin Ryan to the San Francisco Ethics Commission.  Ryan was presiding judge of the Criminal Court Division of the San Francisco Superior Court when appointed by President George W. Bush to replace Robert Muller as the U.S. Attorney for the Northern District of California in 2002.
  • In Everett, Washington, the Herald reports on a backlash against too many complaints filed against candidates for administrative mistakes that are unintentional.  HB 2938 was passed by the legislature and signed, but “partially” vetoed by the Governor.  The bill amends a 1972 voter initiative to take authority away from the state’s Attorney General and instead require that all complaints first be vetted by the Washington Public Disclosure Commission.  The Governor’s message indicates that two sections were vetoed due to drafting errors.  The requirement that complaints be vetted through the Commission remains intact.  However, in the Governor’s veto message, he urged the Commission and the Attorney General to work together to clarify roles, adopt rules, and draft legislation for introduction in the next session to make improvements in the statute.

WEEK OF APRIL 13, 2018

Latest Developments:

The FPPC has released its agenda for the meeting next week.  The April 19 meeting will include pre-notice discussion of regulations to implement the recommendations of the Ad Hoc Governance Committee and a review of the Commission’s ability to review and modify a closure letter

The San Francisco Ethics Commission will hold a special meeting on Wednesday, April 18, 2018.  The agenda includes only two items: (1) to choose a new chair and (2) to discuss the proposed changes to the Anti-Corruption and Accountability Ordinance, as amended in the recent joint meeting with the Board of Supervisors.

The Colorado Secretary of State will hold a hearing on proposed amended lobby regulations on Monday, April 16.

In case you missed it:

  • The New York Times reports that corporate giving is often used as a political tool.  A group of researchers found a connection between corporate charitable activity and politicians’ favorite charities.  The study showed “a pattern of contributions to 1,087 charities linked to 451 members of Congress.”
  • Salon reports that Arizona Republicans are seeking to protect dark money from disclosure.  The legislature passed HB 2153 which was signed by Governor Ducey on April 5, 2018.  The bill preempts municipalities from requiring disclosure by tax-exempt IRC 501 organizations.  Under the bill, local governments may not require registration, reporting, or disclosure of an organization’s IRS Form 990 Schedule B (list of donors).
  • The Brennan Center for Justice has issued a new report, Getting Foreign Funds out of America’s Elections.  The report includes recommendations to update political spending laws for the Internet, eliminate dark money by requiring disclosure, extend the ban on foreign money to domestic corporations owned by foreign interests, and reform the FEC.
  • A suit against President Trump alleging inadequate financial disclosure was tossed by a federal judge, according to Politico.  The plaintiff argued that the President failed to adequately disclose his debts in sufficient detail in a report required by the Ethics in Government Act.  The case, Lovitky v. Trump, noted that it was within the discretion of the Office of Government Ethics as to what to require and the President was not required to provide specificity.  The case was dismissed for lack of standing.

WEEK OF APRIL 6, 2018

Latest Developments:

The California Attorney General issued an opinion on April 3, 2018, that a city council member who is also an attorney may not advocate on behalf of a client’s interests that are adverse to the city’s interests.  Further, a city council member who is also an attorney may not participate in governmental decisions concerning a client’s interests when those interests that are adverse to the city’s interests.

The SF Ethics Commission participated in a joint meeting with SF Board of Supervisors on Tuesday, April 3, 2018.  Following a staff presentation at the meeting, the Commission adopted a number of amendments to its proposal to amend the San Francisco Anti-Corruption and Accountability Ordinance.  The Board of Supervisors accepted additional amendments and referred those changes back to the Commission.  (See the minutes of the joint meeting at pages 16 to 19 of the board’s minutes.)

Oakland Ethics Commission held its regular monthly meeting on Monday, April 2, 2018.  The Commission listened to a presentation from Open Oakland, a community nonprofit, which previewed a planned web-based tool to expand campaign finance disclosure covering contributions to candidates and Oakland ballot measures.

In case you missed it:

  • New York Joint Commission on Public Ethics’ much anticipated new website moves the commission’s web presence into the 21st Their old, clunky website is gone!  In its place is a much more useful and user-friendly resource center.
  • The Alabama Senate adopted SR 51 which expresses a policy against sexual harassment.  The policy applies to legislators, staff, lobbyists, and others “involved in the work of the legislature.”

WEEK OF MARCH 30, 2018

Latest Developments:

New York Joint Commission on Public Ethics met on March 27, 2018.  Staff demonstrated a new website that will become available to the public next week.  The staff has also issued a new Procurement Lobbying Guide.  In addition, the commission discussed pending legislation that would require disclosure of lobbyists’ fundraising activity and also permit debarment of lobbyists who file false statements.  The Commission may bring these up at a future meeting and take a position.  Similar proposals have been in print in the form of Assembly Bills 7161, 7162, and 7163.

Oakland Ethics Commission holds its regular monthly meeting on Monday, April 2, 2018.  As part of the agenda, the Commission lists as a key project for 2018-19 creating an e-filing system for lobbyist registration.  (Currently the Commission asks that registrations be emailed to the Commission, but also accepts registration by mail or facsimile.)

In case you missed it:

  • Politico reports that a federal judge has rejected a request to prohibit the disclosure of donors to a PAC.  In Doe v. FEC, The judged ruled that the FEC has discretion to release the names of donors to the Now or Never PAC in the course of an FEC investigation.
  • The Secretary of the Environmental Protection Agency, who paid $50 a night for a room in a condo on Capitol Hill owned by a health care lobbyist who is married to an energy lobbyist, did not receive a prohibited giftUSA Today reports that the EPA’s senior ethics counsel found that it was a routine business transaction between friends.  The article says that the watchdog group Public Citizen has asked the EPA’s Inspector General to launch an investigation.
  • S. News and World Report indicates that a bipartisan group in North Dakota is circulating an initiative measure to amend the state’s constitution to create an independent ethics commission.
  • Governor Tom Wolf of Pennsylvania, has proposed a wide variety of ethics reforms, including a gift ban for public officials, pay-to-play disclosure of contributions by state contractors, and campaign contribution limits.
  • The Albany Times Union has an article about a New York appellate court’s decision to uphold the state’s “LLC loophole.” Presiding Justice Elizabeth Garry wrote, in a 4-1 decision, that closing the loophole, which allows each limited liability company owned by a person to give up to $150,000 annually in New York elections, “was a matter for the Legislature, not the courts.”
  • Oregon Public Broadcasting reports that earlier this month (March 2018), a judge in Portland struck the $500 contribution limit for candidates in Multnomah County, which was passed by ballot initiative.  An effort is underway to fast track the appeal to the Oregon Supreme Court.
  • The Monterey Herald reports that two Monterey County, California, Supervisors have formed an ad hoc committee to bring campaign finance reform to county races.  The supervisors are holding invitation-only meetings at which they have aim to build support for contribution limits and spending caps for local races.

WEEK OF MARCH 23, 2018

Latest Developments:

Federal BudgetHouse Bill 1625 has been approved by Congress signed by the President.  Buried within the bill are a few provisions that pertain to political activity:

  • Section 125 (page 468) prohibits the IRS from finalizing a regulation that would spell out candidate-related political activity that would not be considered to promote social welfare (thus disqualifying a 501(c)(4) organization).
  • Section 631 (page 568) prohibits the SEC from issuing any regulations requiring “disclosure of political contributions, contributions by tax exempt organizations, or dues paid to trade associations.”
  • Section 735 (page 588) prohibits requiring any federal contractor to disclose any contribution, independent expenditure, or payment for an electioneering communication for a candidate for federal office

Additionally, The Hill reports that, in a separate report attached to HB 1625, Congress has asked the “Federal Election Commission to issue a report about illegal foreign political contributions in elections, its enforcement measures, and how it works to combat them.”  The required report is due 180 days after passage of HB 1625.

California Fair Political Practices Commission met Thursday, March 22, 2018.  The commission took the following actions, among others:

  • Adopted amendments to Regulation 18401(recordkeeping requirements for mass mailing and earmarked funds)
  • Debated three versions of amendments to Regulation 18450.1 (definition of “advertisement” for disclosure purposes).  The Commission adopted “Option 3.”
  • Commissioner Audero asked that all procedures and training materials for the Enforcement Division to follow, be placed on a public website.  The Commission reached consensus that staff should proceed to have an Interested Persons meeting on the subject.
  • Commissioner Hayward reported on behalf of the Ad Hoc Governance Committee which recommended establishment of four standing committees, each composed of two Commissioners though which certain policy matters would be filtered.  Commissioner Hayward asked for feedback and welcomed input from the public, with a view to revisiting the issue next month, and presenting the recommendations in the form of a regulation.
  • Commissioner Audero discussed procedures for setting the Commission’s agenda.  She would like to have permission for each Commissioner to add their own items to the monthly agenda.  She clearly feels that the Chair controls the agenda and filters submissions.  The Commission voted 3 to 2 to change the procedure.
  • Commissioner Hayward objected to the advice letter issued regarding Senator Mendoza that permitted use of a legal defense fund to pay expenses associated with claims of sexual harassment.  The Commission voted to withdraw the letter.

San Francisco Ethics Commission met last Friday, March 16, 2018.

  • The Commission put off election of a new Chair until the April Meeting.  One member was absent and the Commission has one vacancy; hence the Commission postponed the decision.
  • In addition, Commissioner Kopp continued to press for an independent counsel for the commission.  He indicated that on a regular basis, almost monthly, the City Attorney, who represents the Commission, also represents respondents to an ethics complaint.  The matter was continued to April, pending additional information from the staff.

Oakland Ethics Commission meets on Monday, March 26, 2018, for a special meeting “to conduct strategic planning, performance, and operational activities.”  Among the topics on the agenda is how staff should handle complaints of violations of the Sunshine Ordinance by the Ethics Commission itself.  (Two complaints are pending.)

New York Joint Commission on Public Ethics meets next Tuesday, March 27.  The notable matters on the agenda scheduled for discussion include staff legislative proposals and discussion of a new website.  Once again, noticeably absent is any mention of the comprehensive lobby regulations first published in October 2016.  They remain featured on the commission’s website.

In case you missed it:

  • The Governor of Washington State signed the Washington State Disclose Act of 2018 (SB 5991) on March 19, 2018.  That act requires nonprofit organizations that do not otherwise fit within the definition of a political committee to nevertheless register and file reports as an “incidental committee” if they expect to make $25,000 in political contributions or expenditures in a calendar year and receive aggregate contributions of $10,000 or more from a single source during the calendar year.  These incidental committees will be required to file regular reports disclosing their top 10 donors who have contributed at least $10,000 in the calendar year.
  • Florida SB 1628 passed both houses of the legislature, but died on the last night of the session (March 10, 2018) while awaiting concurrence.  That bill would have authorized the leaders in each house or the Governor to suspend a lobbyist’s registration if he or she is found to have violated workplace or sexual harassment prohibitions.
  • The Governor of Utah approved two bills in the past week:
  • HB 206 creates a new gift exception for gifts to the state; however the gift may not be consumable or perishable and may not be transferred to benefit one or more public officials.
  • HB 320 prohibits contributions to the Lieutenant Governor, Attorney General, State Auditor, or State Treasurer while the legislature is in session.

WEEK OF MARCH 16, 2018

Latest Developments:

Fair Political Practices Commission meets next Thursday, March 22, 2018.  Among the topics on the agenda for discussion:

  • Regulations 19401(recordkeeping requirements for mass mailing and earmarked funds) and 18450 (definition of “advertisement” for disclosure purposes).  Both of these include changes based on AB 249 (the Disclose Act) Enforcement.
  • Priorities and Procedures:  The Commission and staff will discuss the establishment of step-by-step procedures for the Enforcement Division to follow, which would be approved by the Commission and made available to the public.
  • Governance Committee Report.  The Ad Hoc Governance Committee recommends:
    • Establishment of four standing committees: Budget, Legislative, Personnel, and Law & Policy.
    • Each committee would be composed of two Commissioners.
    • Revised Governance Principles, under which certain policy matters are filtered through these committees.
  • Procedures for setting the Commission’s agenda.  This item is worth noting only in the respect that Commissioner Audero wrote a 6 page memo criticizing the Chair over how the agenda is created; a 5-page analysis was prepared by staff on how the Commission may adopt procedures to set the agenda.
  • Future regulations for discussion include amendments to the conflict-of-interest regulation, including clarification of the 500-foot property rule.  No particular time is specified for the Commission to consider this regulation.

San Francisco Ethics Commission meets today, Friday, March 16, 2018.  On the agenda:  the Commission will elect a new chair.  In addition, the Executive Director has announced that Jessica Blome, the Director of Enforcement is leaving the Commission.

In case you missed it:

  • R. 4916, introduced in Congress on February 2, 2018, would prohibit the IRS from requiring disclosure of donors on Schedule B of federal Form 990.  That Form 990 return, filed by nonprofits, requires those organizations to disclose the identities of donors and the amount contributed during the tax year.  The Washington Examiner reports that this information, which is supposed to be confidential, seems to have a nefarious way of becoming public.  The Examiner notes that the confidential information doesn’t really have much value to regulators but poses a huge risk to donors and the charities they favor, especially those with a political or controversial bent.
  • Colorado SB 116 would permit issuance of Capitol ID Cards to any member of the public who pays a fee of $250, submits a set of fingerprints, and undergoes a background check.  The bill would permit these Capitol ID holders to bypass metal detectors and other security measures.  Over 90% of Colorado lobbyists surveyed support the bill.  The Denver Post reports that the bill passed out of the Senate on March 15, 2016.  It now goes to the House.
  • Colorado’s Secretary of State released a draft of revised lobby regulations on March 15, 2018.  The proposed regulations would adopt new rules governing lobbyists.  According to the Secretary’s analysis it would, among other things, clarify that grassroots lobbying is not covered, and that communications by attorneys on behalf of clients are not covered.  It also clarifies who is a professional lobbyist, what constitutes a lobbying firm, and further clarifies their disclosure requirements.
  • S. News and World Report notes that the Massachusetts Supreme Court heard oral arguments this week (on March 6, 2018) in a challenge to the state’s century-old ban on corporate contributions to political candidates.  The case is 1A Auto, Inc. v. Sullivan.
  • C. Bill 22-0192 was signed by the Mayor of the District of Columbia on March 12, 2018.  The bill establishes a program for publicly funded campaigns in the district.

WEEK OF MARCH 9, 2018

Latest Developments:

Oklahoma Ethics Commission meets today, Friday, March 9, 2018.  While we generally don’t monitor this commission closely, it’s worth noting that the meeting agenda includes a presentation by a current state legislator who is asking the Commission to engage in rulemaking to require that payments intended to influence be disclosed.

San Francisco Ethics Commission meets next Friday, March 16, 2018, but has not yet posted an agenda for the meeting.

In case you missed it:

  • Senate Bill 2482 was introduced by Senator Feinstein on March 1, 2018, and is cosponsored by Sens. Cornyn, Shaheen, and Young.  The bill would require the Department of Justice to enforce laws pertaining to unregistered, non-diplomatic operatives of foreign governments.  Roll Call reports that the bipartisan effort comes at a time when various interests have coalesced to stop HR 4170, which would require increased reporting under the Foreign Agents Registration Act (FARA), and passed out of committee in January.  SB 2482, among other things, deletes the exemption under FARA for registered lobbyists, and instead creates an exemption in the Lobby Disclosure Act for persons registered under FARA.

Currently FARA contains an exception for foreign agents who are registered under the Lobby Disclosure Act.  (22 U.S.C. 613(h).)  Section 5 of the bill would repeal subsection (h) of Section 613 in FARA and instead place an exception in the Lobby Disclosure Act (at 2 U.S.C. 1603(a)(3)) to provide that a person registered under FARA is not required to register as a lobbyist.

  • The Federal Judiciary has issued a new personnel policy covering employees of the Administrative Office of U.S. Courts and the Federal Judicial Center.  The new policy admonishes administrative employees not to donate to candidates or engage in partisan political activity.  The National Law Journal reports the new policy brings these employees under the same rules that apply to federal judges and courtroom employees.
  • Patrick McGreevy, of the Los Angeles Times, reported on March 3, 2018, on recent public filings that disclose gifts to California officials.  Something greater than $700,000 in gifts were made in 2017 to state officials, including over $44,000 to the Governor alone.  McGreevy notes that the Governor vetoed a bill in 2014 that would have further restricted gift-giving to state officials.
  • The Hill has a recap of Trump administration ethics problems.  The March 3, 2018, article summarizes the problems of a half dozen cabinet members who face questions about spending public funds on lavish travel and goods, accepting improper gifts, and violating the Hatch Act.  Does anyone know a good ethics lawyer who can give these guys some much-needed advice?
  • On the other side of the coin, the Oregonian reports that a the former Republic State Senate leader, who represents a rural district in the eastern part of the state, agonized over an ethical dilemma when given a gift of a Pendleton blanket by the Confederated Tribes of the Umatilla Reservation.  The tribal board was grateful for the Senator’s sponsorship of beneficial legislation, including a bill to stop looting at Native American burial sites.  However, the $249 blanket exceeded the state’s $50 gift limit.  He contacted the State Ethics Commission Director, explaining, accepting it might violate ethics regulations, but returning it “might constitute an insult.”  Ultimately, the Senator gave the blanket to the State Senate.

WEEK OF MARCH 2, 2018

Latest Developments:

New York JCOPE met Tuesday (2/27/18).  JCOPE’s only discussion concerned a request for an exemption from disclosure of source of funding from the NY Civil Liberties Union, which was denied.  The still-pending lobby regulations were not discussed.

Oakland Public Ethics Commission has cancelled its March 5 meeting and will meet instead on March 26, 2018 for a retreat.

In case you missed it:

Colorado’s Secretary of State has released a draft of proposed amended Lobbyist Regulations.  The Secretary is seeking written comments on the draft through March 9, 2018; a public hearing will be held today (March 2, 2018).  Among other things, the regulations specify the contents of lobbyist registrations and disclosure reports.

Remember our report two weeks ago that a federal district court judge upheld Montana’s ban on political speech robocalls on a privately-owned telephone system in the case of Victory Processing v. Fox?  The Los Angeles Times followed up and reports that political robocalls in California must start with a live person announcing the nature of the call and disclosing the entity promoting the call.  The Times found these requirements are routinely ignored.

“Zombie Campaign Funds,” a term coined by the Tampa Bay Times in a January 31, 2018 article, are thriving.  These campaign funds of former (and sometimes dead) Members of the United States Congress are used “to finance their lifestyles, advance new careers and pay family members,” the Times investigation found.  The Los Angeles Daily News (February 24, 2018) uncovered four former southern California Members, Gary Miller, Henry Waxman, Hilda Solis, and Buck McKeon, who maintain Zombie accounts.  Rep. Mark Takano of Riverside is sponsoring the “Let it Go” Act, which would require that congressional campaign accounts be spent within 6 years of leaving office.

The U.S. Supreme Court examined Minnesota’s ban on political clothing and buttons at polling places, on Wednesday, February 28, 2018.  The Washington Post reports that the justices asked lots of questions about exactly what kind of clothing might be permissible to wear in a polling place.  The case arose when a voter, who wore a tea party shirt and a button that read, “Please I.D. Me,” was stopped at the polls and his name recorded for possible prosecution under the state’s ban.

The Federal Election Commission increased the lobbyist bundling disclosure threshold for 2018 from $17,900 to $18,200, based on the Consumer Price Index.  The actual disclosure is made by the candidate, party, or leadership committee. The commission’s notice was dated January 29, 2018, but published on February 12, 2018 in the Federal Register.


WEEK OF FEBRUARY 23, 2018

Latest Developments:

San Francisco Ethics Commission met last Friday (2/16/18).  The commission failed to put an amendment to the city’s ethics ordinance on the June ballot (Item 4).  The proposal was a watered-down version of the Commission’s original proposal from last fall, with amendments offered, coupled with a proposal from Supervisor Peskin to add major donor reporting.  The measure is not dead; it will continue on a path back to the Board of Supervisors, or may be placed on the November ballot.

Following over 4 hours of debate on the matter, the Chair of the Commission, Peter Keene, resigned in exasperation and walked out of the meeting, as reported by the San Francisco Examiner.  The Board was faced with a March 2 deadline to place a measure on the June ballot.

Los Angeles Ethics Commission met Tuesday (2/20/18).  The Commission listened to a staff presentation on contributions, matching funds, and campaign disclosure as a part of a new review of the city’s campaign finance laws.  The plan is to have changes in place for the 2020 election cycle.

New York JCOPE meets next Tuesday (2/27/18).  JCOPE has a scant agenda; the only substantive listing is an application for exemption from disclosure of source of funding from the NY Civil Liberties Union.  Noticeably absent from the agenda are the still-pending lobby regulations.

In case you missed it:

Reuters reports that on February 15, 2018, Citizens United lost an appeal in the federal Second Circuit Court of Appeals in New York in a case involving disclosure of its donors.  In Citizens United v. Schneiderman, the organization argued that the disclosure requirement was unconstitutional as chilling its speech and assembly rights and as a prior restraint on its ability to solicit money from donors.  Citizens United is considering an appeal to the United States Supreme Court.

US News & World Reports tells us that on February 13, 2018, the Missouri Supreme Court upheld a $230,000 charge by the Missouri Ethics Commission for campaign finance violations by a former Missouri State Senator.  In Wright Jones v. Missouri Ethics Commission, the court said that while the Missouri Constitution prohibits the Legislature from delegating to a commission the ability to impose fines, the Missouri Ethics Commission properly imposed penalty “fees” for violations.

WEEK OF FEBRUARY 16, 2018

Latest Developments:

Fair Political Practices Commission met Thursday (2/15/18).  The commission approved amendments to revolving door regulations and repealed of a mass mailing regulation that was placed into statute by SB 45.

Far more fascinating was the Commission’s 2+ hour discussion of paying 3 members retroactively for time spent on commission business since August 2017. Under current practice commissioners are paid for two days a month – a travel day plus the actual day of the commission meeting.  Commissioners Audero, Hatch, and Hayward want to be compensated for other work they have done.  The Commission seemed to be oblivious to the fact that the California Constitution (Article IV, Section 17) prohibits retroactive payments for work already done (although there may be work-arounds).  Commissioner Audero, whose official Commission biography states that she is “a partner in the Employment Law practice at Paul Hastings and is co-chair of the Employment Law Department in the Los Angeles Office,” apparently doesn’t know that office-holders in California are not “employees.”  She was fixated on earning minimum wage and actually got the commission to vote 5-0 to ask the California Attorney General to opine how the state Labor Commission’s order requiring that state employees be paid at least minimum wage applies to Commission members.  Commissioners eventually voted to adopt repealed FPPC Regulation § 18306 as a policy.  That policy would pay commissioners $12.50 per hour for official business on non-meeting days, and the policy will be applied retroactively to March 1, 2017.

San Francisco Ethics Commission meets this Friday (2/16/18).  The commission will discuss amendments to the city’s ordinance (Item 4), including provisions:

  • Requiring (or making voluntary) signed contributor cards.
  • Revising disclosure of bundled contributions.
  • Deleting the prohibition on contributions from persons with an interest in a land use matter.
  • Revising behested payment disclosures.

The commission will also discuss disclosure of online political communications, intending to have a draft ordinance by the Fall of 2018.

Los Angeles Ethics Commission meets next Tuesday (2/20/18).  Among other things, the Commission will begin a review of the city’s campaign finance laws.   The report indicates that actual proposals will be made at the April Commission meeting.

In case you missed it:

The Tax Cuts and Jobs Act of 2017 signed by the President on December 12, 2018, eliminated the income tax deduction for local lobbying, including lobbying of tribal governments.  The measure includes a ban on deductions for the portion of dues to membership organizations that is attributable to local lobbying expenses.  This will affect corporate clients that engage in local lobby efforts.  (See, Section 13308 of the bill.)

The Helena Independent Record reports that a federal district court judge, on February 9, 2018, upheld Montana’s ban on political speech robocalls on a privately-owned telephone system.  In Victory Processing v. Fox, the state argued that it had a compelling interest in prohibiting robocalls to nonconsenting parties; the plaintiff had argued, among other things, that residential privacy was not a compelling interest.

New Jersey Governor Phil Murphy signed Executive Order Number 2 on January 16, 2018, which includes a Code of Conduct for the Governor.  The Code of Conduct generally prohibits gifts to the Governor, with several significant exceptions.  This appears to be similar to Governor Christie’s Executive Order on the same subject.

WEEK OF FEBRUARY 9, 2018

Latest Developments:

Oakland Public Ethics Commission met Monday (2/5/18).  The Lobbyist Registration Subcommittee of the Commission approved a revised Lobbyist Registration Guide for 2018, which is the first update in 10 years.  The guide is now available on the Commission’s website.  The updated guide includes changes to the city’s ordinance and definitively states that, “’Grassroots lobbying’ is not covered by the Act.”

Fair Political Practices Commission meets next Thursday (2/15/16).  Among the items slated for discussion:

  • Amendment of revolving door regulations based on passage last year of AB 1620 and AB 551.
  • Repeal of a mass mailing regulation that was placed into statute by SB 45
  • Compensation of the Commissioners (i.e. expanding beyond the current 2-day per month cap on per diem payments to commissioners).

The Commission also provides notice that it will take up the following regulations in the near future:

  • March 2018:
    • Regulation 18450.1 (Adoption) – Proposed regulatory amendments to Regulation 18450.1 to maintain or eliminate minimum thresholds for advertisements requiring disclosure statements under AB 249, and to specify yard sign dimension limitations if minimum thresholds are maintained.
    • Regulation 18401 (Adoption) – Proposed regulatory amendment to Regulation 18401 to clarify recordkeeping requirements for earmarked funds, including accounting method for Executive Staff Reports determining top contributors when earmarked funds have been contributed, and mass electronic mailings as necessitated by AB 249.
  • Scheduling to be Determined:
    • Prenotice discussion of possible amendments to conflict of interest rules including: (1) rules for small shareholders and related business entities and (2) bright line materiality standards and clarification of the 500-foot property rule.

South Dakota Campaign Disclosure (2/5/18):  The Governor signed HB 1003 revising certain provisions concerning the content of the campaign finance disclosure reports.  It is effective immediately.

Tallahassee, Florida Gift Prohibition (1/31/18): The City Commission passed an Amendment to its Ethics Ordinance that, among other things, prohibits the solicitation of gifts from city contractors, lobbyists, or lobbyist employers to public officials and prohibits acceptance of those types of gifts if they exceed $100 in value.  The ordinance is effective immediately.

In case you missed it:

Lobbyist Sexual Harassment in California:  On February 6, 2018, Assembly Member Levine introduced AB 2055 to prohibit lobbyists from engaging in sexual harassment and authorize the Fair Political Practices Commission to ban a lobbyist from lobbying for up to 4 years for doing so.

Oklahoma Ethics Commission submitted its statutory changes for 2018 on February 6, 2018 to the state legislature.  The Oklahoma Ethics Commission has an unusual state constitutional power to promulgate rules that become statutes unless the state legislature vetoes those rules before it adjourns on May 25, 2018.  The proposed changes affect campaign reporting, revolving door provisions, and compliance provisions.

Citizens United, revisitedU.S. News & World Reports tells us that a Washington D.C.-based group, Equal Citizens, hopes to use a matter arising in Alaska to overturn Citizens United.

Save the dates….

Wednesday, September 5, 2018. Client Best Practices Workshop: Prior to PLI Corporate Political Activities Conference in Washington, D.C.

Research for clients….

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