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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….

September 18, 2023

Latest Developments:

The Governor of California signed AB 421, which revises referendum procedures, including changes to the way a measure is described on the ballot, permitting withdrawal of a measure similar to the process for withdrawing initiatives, and requiring disclosure of top donors in the Voter Information Guide.
A Group of Academic Scholars Responded to a Request for Information from the House Ways and Means Committee with an open letter that examines issues related to permissible political activities by 501(c)(3) and 501(c)(4) organizations. In the letter, the five law school professors, who specialize in the study of tax-exempt organizations, discuss nonpartisan activities, IRS guidance, foreign donors, campaign activities by charities, and relationships between different types of nonprofit organizations.

Reminders:

Retired Supreme Court Justices to Discuss Judicial Ethics: The Council on Governmental Ethics Laws (COGEL) announced that retired Canadian Supreme Court Justice Ian Binney and retired California Chief Justice Tani Cantil-Sakauye will discuss current issues in judicial ethics. The one-hour Zoom seminar will be on Thursday, October 5, 2023, at 3 PM Eastern/12 Noon Pacific. The seminar is free to all staff of member agencies and organizations. Members’ staff may sign up for the event Conversation about Judicial Ethics; organizations interested in COGEL’s mission and activities may join COGEL here.
COGEL on Campaign Finance: Join Jason Kaune, partner and head of the Political Law Section at Nielsen Merksamer, and Tyler Kleinman, Assistant Director of Compliance and Technology at Nielsen Merksamer as they discuss recent developments in campaign finance law at the upcoming COGEL Connect Campaign Finance Roundtable on Thursday, September 21, at 3 PM Eastern/12 Noon Pacific.

In Case You Missed It:

Oklahoma Ethics Commission Imperiled: Tulsa World describes the concern being expressed about the bleak future for the state’s Ethics Commission.
State Supreme Courts Hear Campaign Finance Cases: CT News Junkie reports that the Connecticut’s high court heard “the case of a pair of state legislators who contend that election regulators used their participation in a public campaign financing system to curtail their free speech rights.” Meanwhile, the Indiana Capital Chronicle reports that the Indiana Supreme Court heard arguments about “whether Indiana’s election code prohibits or limits corporate contributions to PACs… that engage in independent campaign-related expenditures.”
Anaheim Considers Making In-House Lobbyists Register: The Voice of OC describes a discussion at a recent city council meeting “aimed at increasing transparency at city hall and curbing outsized influence…” Currently, only contract lobbyists are required to register.
Guilty Plea for Illegal Campaign Contributions: The Associated Press details the outcome of a former FTX executive who made “tens of millions of dollars in illegal campaign contributions to U.S. politicians.”

September 12, 2023

Latest Developments:

The San Jose, California, City Council adopted changes to the city’s ethics laws that includes eliminating penalties for filing late lobbying disclosures and reducing revolving door restrictions from two years to one year. San Jose Spotlight explains that among the reasons for the changes, the city clerk “said her office lacks staff to track the lobbying reports and enforce late fee collection…”

An Austin, Texas, Campaign Finance Regulation Was Declared Unconstitutional by a U.S. District Court Judge. The Austin Monitor reports that the court ruled the “blackout periods” that prevented fundraising more than a year before an election violated the First Amendment. The case follows a similar one in 2016 that struck down Austin’s previous six-month fundraising limit. The Fifth Circuit Court of Appeals affirmed that case.

Google to Require Disclosure if AI is Used in Political Ads: Google announced that their Political Content Policy will be updated beginning in mid-November, requiring that all verified election advertisers “…must prominently disclose whether their ads contain synthetic content that inauthentically depicts real or realistic-looking people or events.” Politico reports that as campaigns increasingly explore the use of AI-tools, the Google policy change, which also applies to YouTube video ads, is the first of its kind among tech companies. The Federal Election Commission has called for public comment on the topic, while Congress is working on “comprehensive legislation to set guardrails on AI.”

In Case You Missed It:

What is an “Indirect” Interest in a Government Contract?: The South Dakota Searchlight describes the issues that arose when a state legislator accepted federal pandemic relief funds distributed by the state.

Gift of Air Travel Raises Ethics Charge: Audacy.com reports that the Louisiana Attorney General accepted a free flight to Hawaii to attend the Conference of Western Attorneys General, which has landed him and the aviation company that provided the flight in trouble with the state’s Board of Ethics.

September 7, 2023

Latest Developments:

The Governor of California signed SB 678, which requires “a person who is paid by a committee to support or oppose a candidate or ballot measure on an internet website, web application, or digital application… to include a disclaimer… stating that they were paid by the committee…” The measure authorizes the Fair Political Practices Commission “to seek injunctive relief to compel disclosure” if a person fails to include the required disclosure. The law will take effect January 1, 2024.
The Maine Ethics Commission has a number of updated resources, including a new 2023-2034 Political Action Committee Campaign Finance Guidebook.
The Alaska Public Office Commission issued a notice that it is imposing a maximum $10,550 fine against a committee for failure to register and file timely independent expenditure reports. Alaska Public Media explains what happened to the committee linked to a former U.S. Senate candidate.

In Case You Missed It:

More Corruption Charges in SF: The San Francisco Standard reports on more charges filed against former officials and employees for funneling public money into private contracts.
Mayor’s Campaign Fundraiser Hosts May Face Charges: The New York Times reports that the hosts of campaign fundraisers in 2021 are under scrutiny by the Manhattan district attorney’s office.
Corruption Sentence: The Los Angeles Times reports that a former Los Angeles City Council Member, county supervisor, and state legislator was sentenced to 42 months in Federal prison, having been found guilty of bribery and fraud charges earlier this year.
Former Illinois Speaker’s Chief of Staff Convicted: NBC Chicago reports that the former chief of staff to the former House Speaker was found guilty on corruption charges.
Following the Corruption Investigation in Anaheim: In the wake of recent investigations, The Voice of OC asks, “Is Anaheim a cue for more cities to start registering lobbyists?”
Record Spending in New York State: The Albany Times-Union reveals record spending on lobbying in the state.

August 28, 2023

Latest Developments:

New Colorado Regulations: The Colorado Department of State adopted amendments to its campaign finance regulations. “This included establishing reporting requirements for independent expenditures, direct ballot measure expenditures, and earmarked contributions and expenditures; (and) detailing when an organization meets the major purpose standard…”
New Mexico Party Contribution Limits Enjoined: The Albuquerque Journal reports that a federal judge “struck down as unconstitutional New Mexico’s limits on how much state political parties can contribute to political candidates and local political parties.” In Republican Party of New Mexico v. King, the court upheld other contribution limits citing a history of corruption, but found that party contributions are “too attenuated from the root concern of quid pro quo corruption between individuals and candidates.”
New Pay-to-Play Website: The California Fair Political Practices Commission (FPPC) has a new web page to help navigate recent changes to state law that imposes pay-to-play restrictions on contributions to certain local candidates. The page includes a Fact Sheet, recent advice letters, and a formal opinion, as well as newly adopted amended regulations.
Proposed SF Gift Regulations: The San Francisco Ethics Commission voted to place a measure on the March 2024 ballot and adopted amended regulations “associated with” that measure. The regulations, among other things, revise the kinds of gifts that are exempt from the prohibition on gifts from persons doing business or seeking to do business with the city.

In Case You Missed It:

Former Anaheim Mayor Pleads Guilty: According to the Los Angeles Times, the disgraced former mayor of Anaheim “agreed to plead guilty to federal charges in connection with his push to sell Angel Stadium, including lying to FBI agents about not expecting to receive anything from the Angels when the transaction closed — he allegedly hoped to get a $1 million campaign contribution — and destroying an email where he provided confidential information to the team about the city’s negotiations.”
“Brutal” Rejection of Ethics Advocate: The Los Angeles Times reports that the City Council “torpedoed” the nomination of Jamie York, “a vocal proponent of stronger ethics laws,” to the city’s Ethics Commission. The 14-0 vote came as a shock to many, but some council members cited her past political fundraising and stance on lobby reform as reasons for the rejection. The nominee blamed the “shadow lobbying system that I have been railing against for so long.”
Super PACs “Gearing Up”: Open Secrets discusses how “Super PACs raise millions as concerns about illegal campaign coordination raise questions.” The article points out that many presidential “super PACs have numerous links to the candidates they are supporting,” and describes the Federal Election Commission’s “three-pronged test to identify coordination violations.”

August 17, 2023

Latest Developments:

The Federal Election Commission (FEC) Will Request Public Comment on Use of AI in Campaign Ads and Refrains From Advising on Whether a Leadership PAC Can Set Up Additional Accounts for Independent Expenditures: At its open meeting on August 10, 2023, the FEC granted a petition to publish a Notification of Availability in the federal registrar to request public comments on whether the prohibition on fraudulent misrepresentation should apply to deceptive Artificial Intelligence campaign ads. While the FEC previously denied a similar petition, unlike the prior one, the present petition contained language that technically complied with the requirements for a petition. The FEC also considered and denied a request for an advisory opinion made by Senator John Cornyn’s leadership PAC. The PAC, which uses an existing hard money account to make contributions to federal candidates, had requested permission to set up a second hard money account to solicit and receive contributions for the sole purpose of making independent expenditures.

City of Oakland Will Offer Lobbying Fee Waivers and Reductions and Require Lobbyist Training: At a City of Oakland Council meeting on August 9, 2023, councilmembers discussed proposed amendments to the Lobbying Registration Act and voted to accept staff recommendations and draft language. Effective next year, the city will codify the lobbying fees that were previously adopted by the council, fee waivers will apply to certain 501(c)(3) organizations that fall under an income threshold, a fee reduction will apply to certain small businesses and organizations, lobbyists will be required to complete an online training program, and the city’s Public Ethics Commission will be granted the authority to void lobbyist registrations based on failures to comply with the training requirements.

In Case You Missed It:

Florida Public Officials Allowed to Lobby Other Governments: The Miami Herald reports that a federal judge struck down a Florida constitutional amendment, approved by voters in 2018, that prohibited state and local public officials currently in office from earning money by lobbying other governmental bodies. The judge left in place the six-year revolving door prohibition.

MS Attorney General Investigates Treasurer For MS Lieutenant Governor Campaign And PAC He Created: The Clarion Ledger reports that pursuant to a complaint, the Mississippi Attorney General is investigating the treasurer for State Senator Chris McDaniel’s campaign for lieutenant governor and a political action committee that he created last month for potential violations of the state’s campaign finance laws. While the press release issued by the Attorney General does not disclose the complainant, the article states that a lawyer for the campaign of McDaniel’s opponent sent a letter to the Attorney General requesting an investigation based on allegations that the PAC received most of its funding from out of state PACs that “appear to have taken money from corporations above what would be allowed under Mississippi law” and that these contributions could not be deemed allowable independent expenditures because of the treasurers roles both within the campaign and the PAC.

San Jose Grants Exemptions to Its Revolving Door Policy: San Jose Spotlight reports that since 2019, San Jose’s city council voted to grant a few exemptions to the city’s revolving door policy, which allowed former employees to engage in lobbying without having to wait a period of two years after leaving their city positions. According to the city clerk, San Jose does not currently track or keep a list of former employees who were granted exemptions.

Justice Thomas’ Friend Financed His Purchase of a Luxury RV: The New York Times reports that when Justice Clarence Thomas bought an RV in 1999 for $267,230, the purchase was underwritten and financed, at least in part, by a wealthy friend “who made a fortune in the health care industry.” Both Justice Thomas and his friend did not respond to questions about the loan, such as whether any amount was forgiven, and according to the article, their “silence serves to obscure whether Thomas has an obligation to report the arrangement under a federal ethics law…”

August 7, 2023

Latest Developments:

Louisiana Gift Limit Increase: The Louisiana Board of Ethics published a final rule which increases the state limit for “food, drink, or refreshments” to $77 at a single event. The increase from $70 applies retroactively from July 1, 2023.

Illinois Bans Contributions from Red Light Camera Industry: Governor Pritzker signed B. 3903 which “Prohibits any contractor that provides equipment and services for automated law enforcement, automated speed enforcement, or automated railroad grade crossing enforcement systems to municipalities or counties, as well as any political action committee created by such a contractor, from making a campaign contribution to any political committee established to promote the candidacy of a candidate or public official.” The measure also includes revolving-door restrictions and takes effect immediately.

In Case You Missed It:

New York Ethics in Limbo: Politico Pro reports on “how New York’s new ethics agency [Commission on Ethics and Lobbying in Government (COELIG)] is different than JCOPE.” In sum, “extraordinarily quiet.” The article points out that “COELIG is statutorily required to release an annual report no later than April 1st every year. JCOPE usually got the report in the first half of April. COELIG is currently aiming to release it by September.” In addition, “At the one-year mark, COELIG has also yet to take a single enforcement action.”

Hawaii Fundraiser Ban Falls Flat: In 2022 the Hawaii legislature passed SB 555, which banned campaign fundraisers “during any regular session or special session of the legislature.” But, as reported by the Honolulu Civil Beat, the bill “did not halt the flow of campaign donations to many state senators and representatives.” According to the article, a “review of the latest campaign finance disclosures, which were due late Monday, illustrates that major special interests continue to give generously to lawmakers, especially those who wield a lot of power.”

California Fair Political Practices Commission Outnumbered: Capitol Weekly points out that the sheer number of persons regulated and filings received by the California FPPC is overwhelming for the agency’s 90 employees. The article quotes the Chair of the Commission: “Our staff is probably never going to keep pace with the number of complaints it receives.”

Anaheim Corruption Detailed: The Los Angeles Times describes the contents of an Anaheim City investigative report which “found a ‘potential criminal conspiracy’ regarding $1.5 million in COVID-19 relief funds and alleged the city’s former mayor and the ex-head of the Anaheim Chamber of Commerce participated in ‘influence peddling.’” The article also notes that “Among a litany of other ethically or legally concerning situations set out in the report… is allegedly rampant unreported lobbying.” Cal Matters notes that “Anaheim joins a long list of corruption-plagued cities in Southern California.”

No Conflict Here: According to the Topeka Capital-Journal as reported on Yahoo, “A top economic development employee at the Kansas Department of Commerce bid on and won a $180,000 a year contract to consult for the agency. State officials maintain there was no conflict of interest in awarding the consulting contract to Paul Hughes, whose contract went into effect two and a half weeks before he left his government job.” The employee was the sole bidder.

July 31, 2023

Latest Developments:

In June, A California Superior Court refused to enjoin the state’s recent expansion of state pay-to-play laws to cover local officials. The court’s decision is now final; no appeal was filed. The court reasoned that “The United States Supreme Court has recognized that preventing quid pro quo corruption or its appearance is a compelling state interest. Defendants have provided sufficient evidence that SB 1439 sought to address this corruption by eliminating an exception for local elected officials in the legislative history. They have also provided documents detailing the appearance of quid pro quo corruption the bill seeks to address. In addition, because the bill applies to only limited persons who have a direct financial interest in specific proceedings, the law is closely drawn to avoid abridgment of associational rights. It also provides remedies for violation of the contribution limits.” The court found that the measure “does not violate the First Amendment or Sections 2 and 3 of Article I of the California Constitution…”

The Minnesota Campaign Finance Board published a request for comments on a proposal to make extensive changes to its regulations on campaign finance, lobby regulation, and board audit procedures. The proposal would implement some new laws, clarify others, and place in regulations various subject matters of advisory opinions issued by the Commission, including a gift exception for gifts of informational material. Comments are due by September 22, 2023.

The Nevada Ethics Commission imposed a $20,000 fine on the Governor for “wearing his sheriff’s uniform and badge in campaign materials.” According to the Associated Press, the Governor violated “a law prohibiting candidates from using government resources for their personal campaigns…”

In Case You Missed It:

August Recess brings Vacation Fundraisers: Bloomberg Government describes the annual tradition of lawmakers and lobbyists going “on the far-flung destination fundraising circuit – a sleep-away camp for lawmakers and their K Street benefactors.” Disneyland and Rocky Mountain resorts, including Jackson Hole and The Broadmoor, are among the favored locations.

Former USC Dean Sentenced for Bribery: The Los Angeles Times reports that the former dean of the social work program at USC was sentenced to 18 months of home confinement, 3 years of probation, and ordered to pay a $150,000 fine for bribing a Los Angeles County Supervisor in connection with the renewal of a county contract.

Paying for a New Sports Stadium with Lobbyists: Tennessee Lookout poses the question: “What happens when a cash-poor billionaire wants a new sports stadium?” Their one-word answer: “Lobbying.” The article describes how the “family [who owns the team] turned to a strategy common for Tennessee businesses wanting help with a project. They hired a deep roster of lobbyists to persuade lawmakers to raise taxes and fund their proposal with public dollars…”

July 24, 2023

Latest Developments:

New York State Commission on Ethics and Lobbying in Government (COELIG) Delays Acting on Public Comments Regarding Training for Lobbyists: During its open meeting on July 19, 2023, COELIG’s Education Committee presented staff responses to public comments about the state’s training requirement for lobbyists. While the staff responses include proposed action plans, COELIG deferred voting on any such plans. Commissioners also discussed that COELIG is currently in the process of conducting audits of 1,000 random filers.

Hawaii Campaign Spending Commission Releases Newsletter Highlighting Recent Law Changes: The State of Hawaii Campaign Spending Commission released a newsletter that highlights new campaign spending laws that recently went into effect and proposed laws that will be introduced next year. Among the more notable law changes is the lower threshold that triggers the requirement to register as a noncandidate committee and the prohibition on lobbyist contributions during session and the five calendar days before and after each session.

In Case You Missed It:

The Federal Election Commission (FEC) Asked to Reconsider Whether It Has Authority Over Deceptive Use of Artificial Intelligence by Campaigns: The Hill reports that the FEC is considering a second request to clarify that the law against fraudulent misrepresentation applies to the use of deceptive artificial intelligence by campaigns. This second request follows the FEC’s vote, a partisan deadlock, that prevented the FEC from seeking public comments on the issue as a part of its rulemaking process. Some commissioners raised their concern that they lacked the authority to act, but a former commissioner said, “What we’re talking about is a new medium that can quickly create…misrepresentation and the FEC should interpret their existing reg and address it” as it is “not out of the scope of the commission.”

New York City’s Campaign Finance Board Ousted Executive Director for Lavish Spending: The Gothamist reports that in May, contrary to a public announcement, the New York City Campaign Finance Board’s executive director was asked to resign following an internal investigation into “concerns over her professionalism, management style and what colleagues called wasteful spending…” The article points out that though the agency is known for ensuring integrity and transparency around campaign spending, the former executive director’s spending was once “flagged for fraud related to purchases…which did not appear to be for the benefit of the CFB.”

Rhode Island’s Termination of Redevelopment Contract Raises Question of Retaliation: The Boston Globe reports that Rhode Island Governor Dan McKee’s administration is terminating its redevelopment contract with a Philadelphia contractor after the contractor accused two state officials of inappropriate conduct, including racist and sexist comments, during a business trip to meet with the contractor’s executives. However, according to the administration, the termination is a result of changes in economic conditions and a consulting firm’s cost analysis study, which concluded that the project was not in the best interest of taxpayers.

July 18, 2023

Latest Developments:

Hawaii Prohibits Lobbyist Campaign Contributions and Expenditures: Hawaii SB 1493 was signed into law and effective immediately, it prohibits, during any legislative session and the five days before and after each session, lobbyist contributions and expenditures, and promises of contributions or expenditures, to an elected official, candidate, or candidate committee.

Oakland Delays Roll-Out of Democracy Dollars Program: The City of Oakland Public Ethics Commission (PEC) issued a press release, indicating that the Democracy Dollars program, a campaign financing program that allows city residents to assign vouchers or campaign money to candidates of their choice, is postponed for a roll-out in 2026 because the city budget did not include funding for the program for the 2024 election cycle. It remains to be seen how this delay might impact whether companies, and those in the private sector, decide to make contributions to candidates in Oakland. Oakland’s general campaign contribution limits still apply.

In Case You Missed It:

California Legislature Shelves Election-Related Bills: CalMatters reports that the “most sweeping bills to change California elections got shelved in the Legislature.” With respect to campaign finance reform, AB 83, which would have prohibited foreign-influenced businesses from contributing to California campaigns, was shelved by its author. According to the article, lawmakers are now focused on lifting the ban on public financing of campaigns, ballot measure language, the redistricting process, and the security of voting systems.

Indictment Filed Against People Who Allegedly Orchestrated Straw Donations to New York City’s Mayor: AP News reports that six people, including individuals representing companies with business before New York City, were charged in an alleged scheme to orchestrate straw donations to Mayor Eric Brown’s campaign during the months leading to his election. According to the article, since those with business before the city are barred from donating more than $400, “the defendants devised a scheme to donate to the campaign under the names of…employees, without their knowledge.” The executive director of a watchdog group warned against attempts to “game the system because you will be caught.”

Presidential Candidate Raises Legal Questions by Offering Gift Cards to Donors: The Daily Beas t reports that presidential candidate, Doug Burgum, is offering a $20 gift card to individuals who donate $1 to his campaign in an effort to draw enough donors to qualify for the Republican National Committee debate stage. Campaign finance experts are divided on legality. Some don’t see a violation of the law while others raise legal questions, such as whether the ploy “appears to be a reimbursement scheme, which would violate the “straw donor” ban – contributions in the name of another person,” and whether “it could add up to… an en masse conversion of…campaign funds to personal use.” Burgum’s spokesperson insists that the giveaway is an outright gift to people who are hurting due to inflation.

July 12, 2023

Latest Developments:

Minnesota Chamber Challenges State’s Foreign-Influence Ban in Federal Court: MPR News reports that the Minnesota Chamber of Commerce filed a lawsuit in federal court, which seeks to block enforcement of the state’s law that imposes “legal penalties” on “companies…if they make independent expenditures or contribute to ballot question committees and have foreign ownership thresholds that meet or exceed state limits.” The Chamber is arguing that the law is an unconstitutional impingement on free speech rights and is preempted by federal law.

Mississippi Campaign Finance Reports Cannot Be Filed Electronically While New Filing System is Procured: Magnolia Tribune reports that the Mississippi Secretary of State’s online campaign filing system “is being disabled due to concerns over reliability.” The Secretary of State indicated that a new system will be procured and installed as soon as possible. However, in the meantime, campaign finance reports will need to be filed in-person or via fax, mail or email to CampaignFinance@sos.ms.gov.

Alabama Will Require Electronic Filing of Campaign Statements and Reports: Alabama Act No. 2021-314 goes into effect on August 1, 2023 and no longer allows the filing of campaign statements or reports with a “judge of probate.” Rather, the law will require electronic filing with the Secretary of State.

Rhode Island Raises Campaign Finance Reporting Threshold and Limits: Rhode Island enacted SB 846, which for campaign reporting purposes, defines the term “fair market value,” requires the reporting of contributors who gave more than $200 to candidates or PACs and raises the contribution limit for contributions from individuals and PACs to state candidates from $1,000 to $2,000 per calendar year. The new law goes into effect January 1, 2024.

Maine Enacts One-Year Revolving Door Ban for Former Executive Branch Employees: Maine enacted HP 871, and effective December 4, 2024, a former “classified service” or executive branch employee is prohibited from engaging in compensated lobbying for a period of one year after the termination of their employment.

Austin’s Ethics Commission Recommends Reforms to City’s Lobbying Ordinance: The Austin Monitor reports that the Austin Ethics Review Commission unanimously passed a resolution that recommends changes to the city’s lobbying law. First, the Commission recommends specifying that phone calls and virtual meetings (e.g., zoom meetings) count as meetings that could trigger the requirement to register as a lobbyist. Second, the Commission recommended shifting compliance review responsibilities from the City Auditor to the City Clerk’s Office so the City Auditor can focus on identifying “people who should be registered as lobbyists and aren’t.” Finally, the Commission recommended calling for “an audit [by the City Auditor] at minimum every three years.”

In Case You Missed It:

Former Ohio Lobbyist Sentenced to Federal Prison for Role in $60 Million Bribery Scheme: The U.S. Attorney’s Office in the Southern District of Ohio issued a press release, announcing that the former Ohio Republican Party Chairman Matt Borges was sentenced to five years in federal prison due to his involvement, as a lobbyist, in the $60 million bribery scheme that resulted in a 20-year sentence for the former Ohio House Speaker, Larry Householder. At trial, the jury found that Borges conspired to bribe a “501(c)(4) entity to pass and uphold House Bill 6, a billion-dollar nuclear plant bailout.”

Miami Mayor Subject to Federal Investigation: Miami Herald reports that the mayor of Miami, Francis Suarez, is under federal investigation for accepting $170,000 in payments from a real estate developer in exchange for his alleged efforts to change the city’s code in favor of the developer. This report is based on a review of documentation such as calendar invites, emails, and payment records.

July 5, 2023

Latest Developments:

U.S. Senate Passes Bills Requiring Lobbyists Registered Under the LDA To Disclose Foreign Ownership or Influence: The United States Senate recently passed two bills that would require lobbyists, registered under the Lobbying Disclosure Act (LDA), to make additional disclosures if they are subject to foreign ownership or influence. S. 264, the Lobbying Disclosure Improvement Act, would require lobbyists to disclose whether they are utilizing the LDA exemption from the Foreign Agents Registration Act (FARA). S. 829, Disclosing Foreign Influence in Lobbying Act, would require lobbyists to disclose any government of a foreign country or foreign political party directing or supervising lobbying. These two bills have been received in the House, and Nielsen Merksamer will continue to monitor them and other related legislation.
Maine Enacts New Fines and Digital Disclosure Requirements: Maine enacted SP 647, which amends the state’s campaign finance and lobbying laws. Effective 90 days following the special session, among other amendments, the new law will impose a civil penalty (currently a “fine”) on candidates, legislators and lobbyists who violate reporting requirements. In addition, with respect to the mass distribution of text messages that expressly advocate for the election or defeat of a candidate, campaign reports will require the disclosure of the name of the person who paid for or financed the message. Similarly, a PAC or ballot measure committee will be required to disclose the person who paid for certain digital communications that expressly advocate for or against an initiative or referendum.

In Case You Missed It:

Federal Prosecutions Result in Sentencing for Former Ohio House Speaker and Chicago Utility Executives: AP News reports that former Ohio House Speaker, Larry Householder, was sentenced to 20 years in prison after being found guilty of orchestrating a $60 million bribery scheme; federal prosecutors had recommended 16 to 20 years. In another federal bribery case, utility executives in Chicago known as the “ComEd Four” are scheduled for sentencing in January of 2024.
Super PACs Are Operating On-The-Ground Alongside Campaigns: Politico reports that super PACs are “swimming in more money than ever…with more than $14 million in independent expenditures in the primary already.” They are also adopting a greater “on-the-ground presence” and, in certain cases, operating “side by side” with campaigns and engaging in candidate fundraising.
Election Watchdog Files Complaint Alleging Illegal Foreign Contributions to DeSantis Campaign: Miami Herald reports that an election watchdog organization filed a complaint with the Federal Election Commission against Ron DeSantis’ presidential campaign for accepting illegal contributions from a foreign entity, a Canadian hedge fund. While the hedge fund is based in Toronto, it lists its U.S. Office in Florida, and a representative of the fund stated that the company was in full compliance with U.S. laws governing political donations because the contributor entity was “incorporated under the laws of the state of Delaware, and the contributed funds are from our domestic operations and administered by executives who are U.S. citizens or permanent residents.”

Alabama’s Ethics Commission Will Expose Complainants Against Public Officials: AL.com reports that a new Alabama law, which goes into effect in September, will require the state Ethics Commission to inform “a person under investigation who filed the complaint that sparked the probe.” Legislators who support this new law said that public officials should know the identity of their accusers, but the former executive director of the Ethics Commission shared his concern that once the law goes into effect, few whistleblowers will step forward and “unethical behavior will go unreported.”

June 26, 2023

Latest Developments:

The Federal Election Commission (FEC) Votes Against Requesting Public Comment on Use of AI in Campaign Ads: At its open meeting on June 22, 2023, the FEC discussed a petition requesting guidance that the prohibition on fraudulent misrepresentation of campaign authority broadly applies to deliberately deceptive Artificial Intelligence campaign ads. At issue was whether the FEC should publish a Notification of Availability (NOA) in the federal registrar to request public comments on the petition. Commissioner Dickerson made a case against publication of the NOA based on his view that the FEC lacked authority over parties that are not acting “on behalf” of candidates, and the motion to publish the NOA failed in a 3-3 vote.

The State of California Fair Political Practices Commission (FPPC) Posted SB 1439 Regulations: On June 21, 2023, the FPPC posted to its website the final regulations on the application of SB 1439. As previously reported, the FPPC is also in the process of corresponding preparing educational materials for members of the regulated community.

Connecticut’s Code of Ethics Will Apply to Officers-Elect: Connecticut’s governor signed into law SB 1151, and effective October 1, 2023, with respect to the Code of Ethics for public officials and lobbyists, a “public official” includes an “officer-elect.” Among other changes, the new law also prohibits public officials from entering into certain government contracts and requires specific disclosures for client lobbyists.

In Case You Missed It:

In 2022, Lobbying Spending in Washington D.C. Reached a Record High: Bloomberg Government reports that lobbying spending in Washington D.C. reached a record $4 billion in 2022, and according to the article, that’s likely because Congress was “so active” with Democrats controlling both chambers. For 2023, as lawmakers shift their attention to re-election, lobbying activity may decrease.

Justice Alito Went on Vacation with Billionaire Who Later Brought Matters Before the Supreme Court: ProPublica reports that in 2008, Justice Samuel Alito went on a luxury fishing vacation in Alaska with billionaire Paul Singer, a Republican megadonor, and following this trip, Singer “repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes.” According to the article, Justice Alito did not disclose the 2008 trip on his annual financial disclosures even though Singer flew him to Alaska on a private jet. In response to a list of questions from ProPublica, Justice Alito wrote an op-ed, defending his failure to report the trip because justices commonly view “accommodations and transportation for social events” as nonreportable gifts.

Another L.A. City Councilmember Faces Criminal Charges: The Los Angeles Times reports that City Councilmember Curren Price, who allegedly had “a financial interest in development projects that he voted on”, was charged with counts of embezzlement, perjury and conflicts of interest. Based on the felony complaint, Price’s wife, as founder of a consulting firm, received payments totaling over $150,000 from developers before Price voted to approve their projects, and Price failed to disclose his wife’s income on financial disclosure forms. Moreover, Price is also accused of using public funds to pay for his current wife’s healthcare while he was still legally married to another woman. As the article notes, “Price is the fourth current or former council member to face criminal charges in four years.”

New Jersey Governor Appoints Four Commissioners to the Election Law Enforcement Commission: The New Jersey Monitor reports that New Jersey Governor, Phil Murphy, unilaterally appointed four commissioners to the Election Law Enforcement Commission board, which sat empty for an 11-week stretch since the enactment of the Elections Transparency Act in early April. The former commissioners resigned because they believed the Act “defanged the agency,” partly because it slashed the statute of limitations on campaign finance investigations. However, the new appointments give the Commission “a full cohort of commissioners for the first time since 2011.”

Judge Allows North Carolina Special Interest Caucuses to Raise Campaign Funds: WIS News reports that a U.S. district judge permanently blocked the enforcement of a South Carolina law that bars special interest caucuses from influencing the outcome of an election or ballot measure (g., fundraising or campaigning on behalf of members). In response to the judge’s order, one member of the House Ethics Committee, which was responsible for upholding this law, stated, “this blows a hole…in the law of South Carolina as it relates to dark money…”

Pennsylvania Lawmakers Request Ethics Investigations Into Game Control Board’s Secret Meetings With Casino Lobbyists: Spotlight PA reports that Pennsylvania lawmakers requested that the attorney’s general office and the state Ethics Commission investigate the state Game Control Board’s private meeting with lobbyists for a large casino, which was not disclosed on public logs as required by ethics rules. Earlier in the year, Spotlight PA had reported that the lobbyists “embarked on an intense, behind-the-scenes effort to get the Gaming Control Board” to assist them in getting skill games, which compete with casino slots, banned in the state.

June 19, 2023

Latest Developments:

The State of California Fair Political Practices Commission (FPPC) Adopted SB 1439 Regulations: On June 15, 2023, the FPPC held a meeting to adopt final regulations on the application of SB 1439, which expanded the reach of California’s pay-to-play restrictions to local elected officials. While the Commissioners discussed nuanced issues, such as the application of SB 1439 to “strong mayors,” the Commissioners agreed that the issues raised should be handled on a case-by-case basis and not through the current rule-making process. They ultimately adopted regulations with the understanding that, in all likelihood, they will need to revisit them in the future. FPPC counsel also assured the Commissioners that his staff was preparing educational materials for members of the regulated community. The FPPC is expected to post the final regulations on its website soon.

Colorado Enacts Contribution Limits for Municipal Elections: Colorado’s governor signed into law HB 23-1245, and for elections on or after January 1, 2024, the maximum aggregate contributions that any one person, including a political party, and excluding a small donor committee, may make to a candidate for municipal office per election is $400. The maximum limit for small donor committees per election is $4,000. The new law also requires specific disclosures.

New Jersey Governor Signs Executive Order to Implement the Elections Transparency Act: New Jersey Governor, Phil Murphy, signed Executive Order No. 333, amending prior executive orders to align with the newly enacted Elections Transparency Act and also defining relevant terms. As we previously reported, the Act overhauled the state’s pay-to-play and campaign finance laws. For further details regarding the law changes, please contact your Nielsen Merksamer attorney.

Minnesota’s Campaign Finance Board Requests Input From Regulated Community: The Minnesota Campaign Finance Board released a memo to the regulated community, requesting suggested topics that the Board should address in its administrative rules. Suggestions should be emailed to Rules@state.mn.us by no later than June 26, 2023.

The State of Washington Adjusts Deadline for Grassroots Reporting: Governor Jay Inslee signed into law HB 1317, and effective July 23, 2023, the deadline for a sponsor of a grassroots campaign to file with the Public Disclosure Commission is adjusted from 30 days after becoming a sponsor to within five days of publicizing the campaign, or within 24 hours of publicizing if it is publicized 30 days before or during a regular legislative session. The new law also requires certain disclosures relating to contributors and spending on advertisements.

Reminders:

Nielsen Merksamer is thrilled to announce the promotion of Jay Carson to partner in the firm’s Bay Area office and the promotion of Victoria Rodriguez from legislative analyst to associate in the firm’s Sacramento government law practice.

In Case You Missed It:

San Francisco Ethics Commission Fines Political Committee Nearly $30,000:The San Francisco Standard reports that the San Francisco Ethics Commission fined an independent expenditure committee nearly $30,000 for its failure to report over $1 million in spending. Between 2018 and 2019, the committee allegedly “bounced between city and state classification…even though 98.5% of its contributions went to support city candidates and ballot measures.”

California Elected Official’s Spouse with Her Own Career (Related to Politics) Draws Scrutiny: The Los Angeles Times reports that according to financial and lobbying disclosures, during the years Anthony Rendon served as Assembly Speaker, his wife’s consultancy business for nonprofits “boomed” with one nonprofit paying her business “nearly $600,000 over the last year and a half as it lobbied lawmakers on bills related to housing, homelessness and public safety.” Rendon’s wife, Annie Lam, is not a lobbyist, and Rendon’s voting record shows that his support for Lam’s nonprofit client is mixed. Moreover, the article notes that Lam’s work is legal, but when spouses of public officials receive payments from nonprofits, they are subject to scrutiny because, as the former chair of the California Fair Political Practices Commission stated, “it comes right down to…a question of whether or not it’s impairing the ability of the elected official to be impartial and to make decisions that are in the best interest of the state when there is a financial impact on him.”

The Democratic Party of Oregon Will Return Illegal $500,000 Campaign Contribution: The Chronicle reports that the Democratic Party of Oregon (DPO) announced it will return the illegal $500,000 campaign contribution it received last fall from an executive at a bankrupted cryptocurrency exchange. The executive directed DPO to falsely attribute the contribution to another party, a crypto payment processor, and DPO complied. As a result, the Oregon Secretary of State fined DPO $15,000, and the State Department of Justice is considering a criminal investigation. Although most of the illegal contribution was spent last year, DPO will tap into “contributions from some of the state’s most powerful Democrats” to return the full amount.

June 13, 2023

Latest Developments:

The State of California Fair Political Practices Commission (FPPC) Expected to Adopt SB 1439 Regulations This Week: At its June 15, 2023 meeting, the FPPC will consider for adoption proposed regulations on the application of SB 1439, which expanded the reach of California’s pay-to-play restrictions to local elected officials. An internal memo by the FPPC’s counsel summarizes the proposed regulations, with comments from the regulated community incorporated, and addresses issues from retroactivity to covered proceedings to the circumstances under which a proceeding is considered “pending.” In addition, they would define relevant terms, including “officer” and “agent.” To watch the meeting at 10:00 A.M. Pacific on June 15, visit FPPC Live YouTube.

Oregon Enacts Law Limiting Lobbyists’ Participation in Legislative Process: Oregon enacted SB 661, and effective 91 days following the legislature’s adjournment sine die, lobbyists are prohibited from serving as chairperson of interim committees or specified legislative work groups and task forces.

In Case You Missed It:

San Francisco’s Ethics Commission Denounces Budget Cuts: The Chair of San Francisco’s Ethics Commission, Yvonne Lee, issued a statement that calls upon the Board of Supervisors to reject Mayor Breed’s proposed budget cuts, as it pertains to the Commission, for the next two years. Lee claims the Commission’s operating budget would be cut by 32%, and its staff would be reduced by 40%, which would undermine the Commission’s ability to prevent corrupt practices.

Los Angeles Mayor Shares Log of Gifts She Accepted and Declined: Last month, in response to a public records request made by a news editor, the Office of Los Angeles Mayor Karen Bass provided a l og of over 130 gifts to the mayor. According to the log, most gifts, such as flower arrangements or candies, were accepted. However, in apparent compliance with the city’s gift rules, gifts valued over $100 were generally declined, including a swag bag from the Kardashian family worth $600.

Nevada Governor Allegedly Violated Ethics Laws by Wearing His Sheriff’s Uniform and Badge During His Campaign: Las Vegas Review-Journal reports that the executive director of the Nevada Commission on Ethics filed a lengthy motion with the Commission, requesting an order for the Governor, Joe Lombardo, to pay a civil penalty of about $1.67 million for “willfully” wearing his sheriff’s uniform and badge during his gubernatorial campaign. According to the executive director, the governor used his prior position in government to benefit his personal or pecuniary interests. The Commission will hold a public hearing on June 13 to consider motions in this case.

Federal Prosecutors Investigate Group of Political Nonprofits That Allegedly Used Robocalls to Defraud Donors: DNYUZ reports that federal prosecutors filed subpoenas to investigate the group of nonprofit political organizations that used robocalls to raise tens of millions in “political” donations, the bulk of which was ultimately spent on more robocalls and transferred to three political operatives in Wisconsin. According to the article, in the last few years, prosecutors charged other “scam PACs” for deceiving donors “by promising that their money would be used to help politicians – then using it to enrich themselves.”

June 7, 2023

Latest Developments:

California SB 1439 Regulations Still Pending: Since SB 1439 withstood an initial legal challenge, the Fair Political Practices Commission (“FPPC”) has issued additional advice letters on the application of Section 84308 of the Political Reform Act and is expected to consider proposed regulations at its next meeting, which is currently scheduled for June 15, 2023. Meanwhile, the state senator, who authored the bill, wrote an article for CalMatters stating his intention to propose future legislation that would expand the application of SB 1439 to state officials.

Reminder:

The Council on Governmental Ethics Laws (COGEL) published its Spring 2023 edition of The Guardian, featuring an article by Nielsen Merksamer’s Assistant Director of Compliance and Technology, Tyler Kleinman. The article highlights the need for more robust and efficient electronic filing systems for campaign finance data, practical solutions to functionality issues and the benefits of bringing stakeholders together.

In Case You Missed It:

State and Local “Foreign-Influence” Bans Raise First Amendment And Federal Preemption Concerns: Reuters reports on the recent trend for state and local governments to adopt “foreign-influence” bans that “prohibit U.S. companies from making political contributions or expenditures merely because they have foreign owners, in some cases with ownership interests as low as 1%.” The article provides an overview of these bans and notes that some of them go beyond the prohibitions contained in the Federal Election Campaign Act (“FECA”), raising both First Amendment and FECA preemption concerns.
Consulting Firm Loses Client After Complying With FARA: Politico reports that presidential candidate, Vivek Ramaswamy, fired a consulting firm after learning that the firm acted upon legal advice by registering as a foreign agent with the Department of Justice based on its public relations work for a Saudi-funded LIV Golf League. The consulting firm’s leader stated, “We registered with FARA [Foreign Agents Registration Act]…because it was the right thing to do under US law; if Vivek Ramaswamy wants to fire us for that, that’s up to him.”
Complaint Filed Against Gambling Industry Group That Failed To Register As PAC: The Charlotte Observer reports that, according to a complaint filed with the North Carolina election officials, before lawmakers considered legislation to legalize video gambling in 2021, donors in the video gambling industry gave North Carolina elected officials and candidates $885,000. The complaint alleges that the donors, as members of an industry group, violated their obligation to form a political committee and, therefore, “skirted limits on when and how much money a PAC can give.”

May 31, 2023

Latest Developments:

California SB 1439 Withstands Initial Legal Challenge: In the lawsuit filed by a coalition seeking to invalidate SB 1439 on the grounds that expanding California pay-to-play rules violates both the California Constitution and the First Amendment, the California Superior Court judge issued a tentative ruling upholding SB 1439, which was affirmed on May 25^th. The ruling denies the coalition’s motion for judgment on the pleadings and grants the Fair Political Practices Commission (“FPPC”) motion for judgment on the pleadings without leave to amend. The Chair of the FPPC issued a statement that the FPPC is “gratified with the outcome” and will continue to “work to fully implement the changes to Section 84308 of the Political Reform Act consistent with the Legislatures intent.” The coalition has the right to appeal the decision to the California Court of Appeal for the Third District.

Montana Enacts Campaign Finance Reform: Effective immediately, Montana SB 393 no longer requires the following: (1) campaign treasurers to be registered voters in the state, (2) unopposed candidates to file 48-hour reports, and (3) the disclosure of certain debts on 48-hour reports. The new law also revises reporting requirements for incidental committees.

In Case You Missed It:

Undisclosed Donors Allow Ron DeSantis To Fly On Private Jets: The New York Times reports that Florida governor Ron DeSantis has been traveling around the country, and in some cases, internationally, on private jets funded by donors “with business interests” in Florida or donors who are “shielded from the public by a new nonprofit.” For example, the article reported that a Florida political committee, which is registered as a social welfare organization under Section 501(c)(4) of the federal tax code and therefore not required to disclose its donors, received seventeen contributions for DeSantis’ political travel from nine donors since November of last year.

U.S. Supreme Court Continues to Reverse Corruption Convictions: Reuters reports that the U.S. Supreme Court reversed fraud convictions for two real estate developers and a former state university official involved in an alleged corruption scheme related to former New York Governor Cuomo’s “Buffalo Billion” revitalization initiative. This reversal is in line with the Court’s previous reversals of wire fraud convictions and makes it more difficult for federal prosecutors to prove fraud under federal corruption law.

Lobbying Firms With Business Before New York City Fundraised For The Mayor’s 2021 Campaign: Spectrum News NY1 reports that lobbying firms, with business before New York City, raised more than $341,000 for Eric Adams’ 2021 mayoral campaign, but were not disclosed on Adams’ campaign finance reports. Since the campaign paid for fundraising events where the lobbyists were hosts, it was not legally required to report the lobbyists as intermediaries and the donations could also be matched with public funds. A representative of a nonprofit dedicated to government transparency called this a “giant loophole in the city’s campaign finance laws…which is just an invitation for pay to play.”

“Teacher Appreciation” Doughnuts Funded by Campaign Rejected As A Political Stunt: Virginia Mercury reports that Amanda Batten, a Virginia state representative with a record of voting against collective bargaining rights for teachers, distributed almost 1,000 doughnuts to public school teachers in her district, after which she faced significant pushback from a local teachers union and a school division’s staff who viewed the delivery as a political stunt. Noting that the doughnut boxes indicated that they were “paid for and authorized by friends of Amanda Batten,” the school division’s strategic communications director emailed Batten to inform her that the division’s policy requires advance approval before any materials are distributed by non-school organizations.

May 22, 2023

Latest Developments:

The State of Washington Will Require More Disclosures From Grassroots Campaigns: Washington enacted HB 1317, and effective July 23, 2023, the new law expands the definition of a “sponsor” of a grassroots lobbying campaign, adjusts the deadlines for a sponsor’s required registration, requires the disclosure of the sponsor’s employer and the source of funding for the campaign of $25 or more, and also requires certain disclosures for advertising and mass communications produced as part of the grassroots campaign.

Reminders:

The State of California Fair Political Practices Commission (FPPC) canceled its public hearing scheduled for May 18, 2023 and is now expected to consider regulatory proposals related to the implementation of SB 1439 and its expansion of California’s pay-to-play laws in June or July. Please contact your Nielsen Merksamer attorney if you have any questions about the potential impact of these proposed regulations.

In Case You Missed It:

Philadelphia City Contractors Are Likely Adopting Internal Policies Prohibiting Donations to City Candidates: Law.com reports that Philadelphia’s restrictive pay-to-play law could explain why personnel from only five of eleven large law firms with city contracts made donations to mayoral candidates. A business’ campaign contributions must remain under certain limits to win and keep city contracts. When determining whether a business has reached a limit, unlike other major cities with pay-to-play laws, Philadelphia counts donations by a broad range of people, including but not limited to “any officer, director, controlling shareholder or partner.” Therefore, in Philadelphia, a business with a city contract can: (1) pay heavy compliance costs to ensure that their employees donate to races within limits that allow the business to keep its city contract, (2) allow employees to donate as they wish and risk losing its city contract, or (3) restrict or prohibit donations by employees. Some businesses are adopting internal policies that restrict donations, which can hurt candidates seeking to raise funds from friends and colleagues who are limited in how they can support campaigns.

Long Beach Might Require Nonprofits To Register As Lobbyists: Long Beach Post reports that the Long Beach Ethics Commission is considering recommendations to change the city’s lobbying laws. In particular, the commission may recommend including “advocacy” as a form of lobbying, requiring certain nonprofits to register as lobbyists, reducing the thresholds that could trigger registration and mandating more frequent reports. The commission plans to have at least one more public meeting before it drafts a new proposal for the City Council’s consideration.

Los Angeles Mayor Raises Money For Foundation Dedicated To Upkeep and Events at Her New Residence: The LA Times reports that Los Angeles mayor, Karen Bass, moved into the Getty House, which was donated to the city as an official mayoral residence. Since becoming mayor, she also raised at least $65,000 to the Getty House Foundation, a “nonprofit dedicated to upkeep and events” at the Getty House. Such behested donations are legal, but critics argue that “they can create the appearance of a pay-to-play system.” A spokesperson for the mayor said that Bass is working with the foundation “to revise internal policies related to contributions from lobbyists and developers” and that she plans to disclose all contributions monthly even though state law only requires disclosure of behested donations over $5,000.

Nonprofits Are Not Disclosing Donors Who Fund and Attend Trips With California Legislators: CalMatters reports that a special law in California, adopted in 2015, requires certain nonprofits that organize and host travel for elected officials to file annual reports disclosing donors who gave more than $1,000 and accompanied elected officials on a trip. However, likely based on the ambiguous language of the law as to which nonprofits are required to file disclosures, these disclosures have only been filed for two events. In addition, the Fair Political Practices Commission has not investigated any nonprofits because a complaint for failure to comply with the law has never been lodged.

To Support DeSantis’ Run for the Presidency, A Florida State PAC Plans To Transfer $86 Million To A Federal PAC: CNBC reports that to support Florida Governor Ron DeSantis’ presidential run, a Florida state PAC, which is allowed to accept unlimited contributions from donors, is planning to transfer $86 million to a pro-DeSantis federal super PAC. While “federal law bans the transfer of state-level political funds to a national election,” experts disagree as to whether such a state PAC to federal PAC transfer is illegal, and, in the past, the FEC has declined to bring an enforcement action against a similar move made for a Florida representative’s congressional race. In addition, the transfer for DeSantis apparently would not require approval from the original donors; however, the law around donor sign-off varies by jurisdiction and by the nature of the committees involved.

Group of Nonprofits Used Robocalls to Raise Millions That Were Spent on More Robocalls: The Seattle Times reports a group of 527 organizations raised $89 million since 2014 by making robocalls to solicit small donations to supposedly “support police officers, veterans, and firefighters.” However, about 90% of the money raised was sent back to fundraising contractors “to feed a self-consuming loop where donations went to find more donors.” The group also paid three political consultants from Wisconsin, the hidden force behind the nonprofits, through shell companies. By intentionally minimizing their spending on candidates, the nonprofits avoided registration with the FEC and state agencies, falling solely under the purview of the IRS. The nonprofits are currently subject to tax exempt compliance examinations by the IRS, and a lawyer for the nonprofits shared that the IRS has indicated the nonprofits could “operate as-is.” Meanwhile, campaign finance and political law experts question whether these nonprofits’ operations are lawful. According to a law professor, “Indirect expenses have to support direct expenses… Why are you spending money fundraising, if you don’t have any candidate you’re going to use it for?”

May 17, 2023

Latest Developments:

Minnesota Enacts Voter Registration, Election and Campaign Finance Reform: On May 5, 2023, the Governor of Minnesota signed HF 3 into law, which includes provisions for automatic voter registration and the criminalization of knowingly spreading certain misinformation with the intent to prevent others from voting. In addition, effective August 1, 2023, HF 3 expands the definition of “express advocacy” that triggers a reporting requirement, and effective January 1, 2024, it bars “foreign-influenced corporations” from spending to influence elections.

Supreme Court Reverses Pair of Wire Fraud Convictions and Narrows the Scope of Federal Corruption Law: In Percoco v. US, the Supreme Court reversed Joseph Percoco’s conviction of wire fraud. During a brief hiatus from his position as the Executive Deputy Secretary to the New York Governor, Percoco had accepted $35,000 from a real estate development company to help the company in its dealings with a state agency, and a jury subsequently convicted Percorco of wire fraud based on the theory that a private citizen could deprive the public of “honest services.” The Court reversed and remanded because it determined that the jury instructions as to when a private citizen owes a duty of honest services to the public were too vague.

In Ciminelli v. US, the Supreme Court reversed another conviction for wire fraud. In this case, prosecutors alleged that Louis Ciminelli, a New York real estate developer, rigged the bidding process for government contracts. They proved to a jury that, under the “right to control” legal theory, Ciminelli committed wire fraud by depriving the government entity awarding the contracts of “potentially valuable economic information necessary to make discretionary economic decisions.” The Court threw out this theory, finding that fraud could only be committed when there is loss of “money or property.”

Indiana Enacts Voter Registration and Election Reform: On May 4, 2023, the Governor of Indiana signed HB 1336 into law, which includes provisions pertaining to the state’s voting and elections process. However, beginning on July 1, 2023, the new law also allows for the use of electronic or digital signatures for the reporting of campaign contributions and expenditures.

The Washington Public Disclosure Commission (PDC) Adopts New Guidance on Use of Previous Campaign Funds: On May 11, 2023, the PDC issued a release, sharing that it voted to issue formal guidance on the use of campaign money received for a different office than the office currently sought. Under the new guidance, any transferred contributions will count toward the original contributor’s limit for the new campaign.

Reminders:

The Practising Law Institute presents: Advanced Topics in Ethics and Compliance 2023: State and Local Government Contracts on May 16, 2023, from 1:30-5:15 p.m. ET in New York. The half-day program, which is also available via live broadcast, will explore a vast array of procurement, ethics and compliance laws relating to the government contracting process, and features Nielsen Merksamer’s Elli Abdoli as Chair and Jason Kaune as well as Robert Carlin, Senior Attorney at CalPERS, Jared DeMarinis, Director at Maryland State Board of Elections, and Amina A. Mack, Senior Corporate Counsel at Microsoft. Register here to attend in-person or online.

The State of California Fair Political Practices Commission (FPPC) is holding a public hearing at 10:00 a.m. on May 18, 2023 to consider regulatory proposals related to the implementation of SB 1439 and its expansion of California’s pay-to-play laws. To participate in real time, visit http://mediasite.fppc.ca.gov/ or call 877-411-9748; access code 723284. The FPPC invites written comments via email to CommAsst@fppc.ca.gov by no later than 12:00 p.m. on May 17th.Please contact your Nielsen Merksamer attorney if you have any questions about the potential impact of these proposed regulations.

In Case You Missed It:

Nonprofit’s Board Funds and Attends Trips with California Legislators: Cal Matters reports that last year, a nonprofit paid for 32 of the state’s 120 legislators to attend at least “one study trip or conference” to California destinations or other countries. Funded through membership fees paid by the nonprofit’s board of directors, which includes major corporations, oil companies, environmental groups, trade unions and public utilities, the international trips typically “feature packed schedules of presentations, panels, and on-site tours led by local officials and industry representatives.” While participating legislators insist that these trips offer new perspectives, critics complain that the travel “amounts to unofficial lobbying, with organizations able to buy precious time with elected officials that others cannot afford.” Pursuant to state law, the nonprofit is required to disclose their major donors, but some call for increased transparency.

Senate Committee Sends Letter to Republican Mega Donor Requesting Itemized List of Gifts to Justice Clarence Thomas: The Washington Post reports that the Senate Judiciary Committee sent a letter to Republican mega donor and billionaire Harlan Crow asking for “an itemized list of gifts worth more than $415 that he’s made to [Justice Clarence] Thomas, any other justice or any justice’s family member, as well as a full list of lodging, transportation, real estate transactions and admissions to any private clubs…”. Stemming from reports that Justice Thomas failed to disclose that Crow took him on lavish vacations and paid for both his mother’s house and his grandnephew’s private school tuition, this letter is part of a congressional effort to subject Justices to stronger ethical standards. Based on a recent statement issued by the Court, the Justices believe in the status quo, and are presumably unwilling to adopt a new code of conduct for themselves. However, as news outlets continue to uncover potential conflicts of interest, such as Insider’s report that a nonprofit paid Justice Thomas’ wife for consulting work before it filed a brief to the Supreme Court, legislation for ethics reform is on the table.

Congressman George Santos Pleads Not Guilty to 13-Count Indictment: AP News reports that United States Congressman, George Santos, pleaded not guilty to federal charges related to duping campaign donors, stealing from his campaign, unlawfully collecting unemployment benefits and lying to Congress about his finances. If convicted, Santos faces up to 20 years in prison.

May 8, 2023

Latest Developments:

The State of California Fair Political Practices Commission (FPPC) Reminds All City and County Attorneys That SB 1439 Is In Effect: On May 3, 2023, the FPPC issued a press release, notifying the public that it had sent an advisory letter to all city and county attorneys for the purpose of reminding them that a new pay-to-play law (SB 1439), which applies to local elected officials, is in effect “unless a court signifies otherwise.” The FPPC is also holding a public hearing on proposed regulations interpreting the new law. For further details, see the Reminders section below.

Reminders:

The Practising Law Institute presents Advanced Topics in Ethics and Compliance 2023: State and Local Government Contracts on May 16, 2023, from 1:30-5:15 p.m. ET in New York. The half-day program, which is also available via live broadcast, will explore a vast array of procurement, ethics and compliance laws governing the government contracting process, and features Nielsen Merksamer’s Elli Abdoli as Chair and Jason Kaune, as well as Robert Carlin, Senior Attorney at CalPERS, Jared DeMarinis, Director at Maryland State Board of Elections, and Amina A. Mack, Senior Corporate Counsel at Microsoft. Register here to attend in-person or online.

The State of California Fair Political Practices Commission (FPPC) is holding a public hearing at 10:00 a.m. on May 18, 2023 to consider regulatory proposals related to the implementation of SB 1439 and its expansion of California’s pay-to-play laws. The FPPC invites written comments by no later than 5 p.m. on May 16.Please contact your Nielsen Merksamer attorney if you have any questions about the potential impact of these proposed regulations.

The Washington Public Disclosure Commission (PDC) is holding a special meeting at 9:30 a.m. on May 11, 2023 to discuss the use of campaign money received for a different office than the office currently sought. In particular, the PDC will consider whether the transferred contributions will count toward the original contributor’s limit for the new campaign. The PDC invites the submission of written comments via email to pdc@pdc.wa.gov by noon on May 9, 2023.

In Case You Missed It:

Special Advisor to Santa Clara’s Mayor Raises Legal Questions: East Bay Times reports that for the past three years, a manager at a local pizza parlor voluntarily served, without pay, as the Santa Clara mayor’s “special advisor on small businesses and worker cooperative initiatives.” This relationship is informal and “off the books,” and at least one councilmember expressed his concerns “about potential conflicts of interest” and whether the advisor is required to register as a lobbyist. Legal experts have also pointed out that the non-disclosed communications between the mayor and her advisor could violate public records laws.

Jury Foreperson Shares Deliberation Process in Bribery and Conspiracy Case Against Ex-LA Councilman Ridley-Thomas: The Los Angeles Times interviewed the foreperson of the jury that found Ridley-Thomas guilty of federal corruption charges, who revealed that the jury gave Ridley-Thomas the benefit of the doubt except where the evidence, such as emails, contained language that couldn’t be ignored. For instance, with respect to the question of whether Ridley-Thomas’ son received a professorship at USC as part of an exchange between Ridley-Thomas and the USC dean, he shared, “there was just too much phone communication, and we didn’t know what happened.” In contrast, evidence that $100,000 was funneled form the politician’s campaign to his son’s nonprofit, coupled with specific email instructions, established there was an “understanding between them [Ridley-Thomas and the USC dean].”

WEEK OF March 31, 2023

Latest Developments:

The Georgia Campaign Finance Commission approved inflationary adjustments to campaign contribution limits at its March 27, 2023 meeting (at 1:59:55-2:04:44). For statewide elected offices, the limit increased from $7,600 to $8,400 per election and for all other offices, the limit increased from $3,000 to $3,300 per election.

At a special meeting on March 20, 2023, the Los Angeles Ad Hoc Committee on City Governance had a thoughtful discussion with representatives from the Ethics Commission about the potential repercussions of the Commission’s proposed overhaul of the City’s Municipal Lobbying Ordinance (“MLO”). The proposal would broaden the definition of a lobbyist required to register and file reports, and among the new filers would be nonprofit organizations and labor unions. As such, the Committee expressed concerns about the burden the reporting obligations might have on smaller nonprofit organizations as well as the current proposal’s failure to treat smaller nonprofits differently than larger ones or to treat labor unions differently than nonprofits. At the conclusion of the meeting, the Committee requested that the Commission produce a new report addressing these concerns. Otherwise, the reforms have faced pushback from lobbyists and business organizations, which would face more registrations. While this matter has made its rounds between the City Council, Committee and Commission, this special meeting gets Los Angeles a step closer to enacting major reforms to the MLO for the first time since its adoption nearly thirty (30) years ago.

In Case You Missed It:

Jury Convicted Suspended LA City Councilman Ridley-Thomas of Bribery, Conspiracy and Mail and Wire Fraud: The Los Angeles Daily News reports that by presenting “a long string of emails and letters,” federal prosecutors convinced a jury that Ridley-Thomas had a quid pro quo arrangement with the former dean of the USC School of Social Work. Specifically, while serving as a Los Angeles County supervisor, Ridley-Thomas steered county contracts toward USC in exchange for benefits to his son, including “admission to USC, a full-tuition scholarship and a paid professorship.” The jury also found that Ridley-Thomas and the former dean secretly schemed to disguise and transfer $100,000 from the politician’s campaign fund to USC, then a nonprofit and finally to a think tank run by Ridley-Thomas’ son. Unbeknownst to the jury, in a separate case, the former dean had already pleaded guilty to bribery for her role in the secret scheme. Both Ridley-Thomas and the former dean now await sentencing.

Justices and Federal Judges Are Now Required to Disclose Gifts and Travel: The New York Times reports that under new rules adopted by a policymaking body for federal courts, Supreme Court justices and other federal judges are now required to disclose the receipt of gifts and free travel by private jet and stays at commercial properties. However, the practical implications of this rule are yet to be seen. As one legal expert notes, “There’s no enforcement mechanism…It will be up to each justice.”

Councilwoman’s Use of Government Email Account to Solicit Business Might Have Violated Conflict of Interest Rules: The New York Daily News reports that a Brooklyn Councilwoman used her government email account to solicit sign-ups for a martial-arts class offered by a company she has allegedly “partnered with.” According to the former chairman of the city’s Conflicts of Interest Board, the councilwoman violated the ethics rules because she used public resources for personal gain, and even if she did not personally gain from the solicitation, she may have violated the rules simply because she used city resources for a “non-city purpose.”

List of Donations to Mosby Defense Fund Released Without Identifying “Controlled” Donors: The Baltimore Sun reports that after finding that the Baltimore City Council President, Nick Mosby, violated the city’s ethics ordinance by indirectly soliciting donations to a legal-defense fund created for Mosby and his wife’s benefit “in the midst of a federal investigation into their financial dealings,” the Baltimore Board of Ethics obtained and released a list of donations made to the fund. However, the identifying information for the donors was redacted, and even though the Board had found that certain donors were “controlled” and thus, prohibited from making contributions, the public remains in the dark as to who they are.

WEEK OF March 24, 2023

Latest Developments:

The Washington Public Disclosure Commission made inflationary adjustments to campaign contribution limits that will go into effect on April 1, 2023. Among other changes, the maximum an individual and most organizations may contribute for statewide races will increase from $2,000 to $2,400 per election.

Arkansas’ Governor signed and enacted SB 280, which abolishes the state’s statutory campaign contribution limit of $2,700 per election and authorizes the Arkansas Ethics Commission to establish, by rule, the maximum contribution limit. Among other changes to the state’s campaign finance and ethics law, the bill alters the due dates for the filing of independent expenditure reports. These changes and most provisions of the bill will go into effect 90 days after adjournment of the legislature.

Tennessee’s Governor signed and enacted HB 486, which requires political campaign committees to report contributions and expenditures for a local election to the registry of election finance as opposed to the local county election commission. It also requires complaints on statements of local political campaign committees to be filed with the registry of election finance rather than the local district attorney. This bill goes into effect on July 1, 2023.

Arizona’s Anti-Dark Money Ballot Measure Passed by Voters is Challenged in Federal Court: Capital Media Services reports that a conservative advocacy group filed a federal lawsuit seeking to block implementation and enforcement of Proposition 211, which “requires any group making political expenditures to trace the cash back to its original source, no matter how many hands it has passed through.”

In Case You Missed It:

President Biden Vetoes Bill That Would Have Struck Down Labor Department’s ESG Rule: The Washington Post reports that President Biden issued his first veto to protect the Labor Department’s ESG Rule, which allows retirement plan fiduciaries to consider climate change and other environmental, social and governance factors when making investment decisions. Despite growing political backlash against the concept of corporate social responsibility, the President’s veto serves as a reminder to corporations that the SEC is at the heels of the European Union in adopting ESG-related reporting obligations.

NYC Mayor Might Be Fined $20,000 to $50,000 for Violations of Campaign Finance Law: Gothamist reports that New York City Mayor Eric Adams faces tens of thousands of dollars in potential fines from the city’s Campaign Finance Board due to charges of campaign finance law violations. While the charges stem from his inaugural committee’s acceptance of prohibited donations from donors who had business before the city, “[t]he heftiest of the fines could come from Adams’ failure to respond to the board’s request for documentation.”
Congressional Rep. George Santos’ Failure to File a Key Personal Financial Disclosure Leads to Ethics Complaint: Politico reports that Congressman George Santos’ failure to file a personal financial disclosure form when he was running for his seat is now the subject of an ethics complaint. The requirement that candidates, across all levels of government, file financial disclosures, which may disclose investment and business relationships with private sector actors, “dates back to a 1978 law that aimed to identify conflicts of interest” and to prevent public officials from using their government positions for “personal gain.” While enforcement of the federal law requiring disclosures by congressional candidates has been lax, that may soon change and the same cannot necessarily be said of enforcement of parallel state and local laws; as such, corporations with ties to candidates should remain mindful of the potential conflicts and public disclosures.

WEEK OF March 17, 2023

Latest Developments:

The Maine Commission on Governmental Ethics and Election Practices adjusted contribution limits, and among other changes, the maximum an individual or PAC may contribute to a legislative candidate per election increased from $425 to $475. The commission also released a 2023 guide highlighting recent law changes, and in particular, the new law that prohibits candidates from accepting campaign contributions from a for-profit or nonprofit business entity, including corporations.

The Vermont Secretary of State’s Elections Division adjusted contribution limits for the entire two-year 2024 election cycle. Among other changes, the maximum an individual or PAC may contribution to a statewide candidate and PACs increased to $4,480.

The New York City Council passed an amendment to the city charter, and beginning on January 1, 2024, individuals and entities that make certain independent expenditures in support of or in opposition to a municipal ballot proposal or referendum, will be required to file disclosure reports.

The Governor of Tennessee signed SB 159, which removes the requirement that all employees (other than the executive director, assistant directors, and general counsel) be approved by the governing board of the Bureau of Ethics and Campaign Finance. The measure also permits certain officials write off uncollectable civil fines imposed by the either the Registry of Election Finance or the Ethics Commission. The bill takes effect January 1, 2024.

Reminders:

Ballot Measure Litigation Update – Court of Appeal Upholds Core of Prop. 22: Nielsen Merksamer was lead counsel in the effort to draft, qualify, and enact Proposition 22 during the 2020 election cycle. The firm is also a central part of the legal team defending the constitutionality of Proposition 22 in the state trial and appellate courts. This past week, in a big win for our clients, an appellate court issued an opinion that upholds the core elements of Proposition 22. To learn more about Nielsen Merksamer’s ballot measure and litigation practices, please visit our website.

In Case You Missed It:

Lobbyists in Fear of Legislators: Source NM reports that, following complaints of sexual harassment by New Mexico legislators, one nonprofit “created a safety plan for the 2023 Legislature and shared it with other lobbying organizations around the state. It lays out measures such as staying with colleagues, understanding who to confide in, knowing the surroundings and taking notes of any incidents that happen.” The nonprofit’s policy director said, “lobbyists across the board have experienced unsafe or uncomfortable situations in Santa Fe.”

Unfettered Revolving Door: The Minnesota Reformer hysterically cautions that the “revolving door at [the] Minnesota Capitol creates [a] windstorm.” According to the article, “Minnesota remains one of a few states without a statewide revolving door policy.” The story describes former legislators who now have lobbyist clients. A lawmaker proposing a 7-year revolving door limitation pointed out a core issue — that “‘It’s human nature. People are your friends, and you’re going to be more open to find the time to talk with them and so on’…”

Lobbyists Exempt from Registration Protest Proposed Changes: According to the Long Beach Post, the “Long Beach Ethics Commission said it will continue to work on its recommendations for changes to the city’s lobbying law after dozens of nonprofit, neighborhood association and business improvement district leaders turned out to its Wednesday meeting to demand their current exemption from the law remain intact.” Proposed changes also included “ requiring more frequent reporting, more information about the discussions and potentially stiffer penalties.”

WEEK OF March 10, 2023

Latest Developments:

The Ohio Secretary of State updated contribution limits for the period from February 25, 2023 through February 24, 2025. Among other changes, the maximum an individual or PAC may contribute to a statewide or legislative candidate increased from $13,704.41 to $15,499.69.

The Montana Secretary of State adjusted the lobbyist payment threshold, which triggers a registration requirement, from to $2,650 to $2,900 for calendar years 2023 and 2024.

The State of New Jersey’s gift limit for gifts to the governor automatically adjusted from $415 to $480 because, according to an executive order, it is tied to the U.S. Foreign Gifts and Decorations Act’s definition of “minimal value.”

The U.S. Court of Appeals for the Ninth Circuit reached an opinion that upholds a San Francisco law, which requires committees that fund certain political ads to disclose the identity of their top financial donors. The circuit court reasoned that the law is “substantially related to the governmental interest in informing the electorate” of the entity that is funding an advertising communication, and consequently, it does not violate the freedom of speech.

In Case You Missed It:

Former Ohio House Speaker and Former Chair of Ohio Republican Party Found Guilty in $61 Million Bribery Scheme: The U.S. Attorney’s Office issued a press release announcing that the former Ohio House Speaker and former Ohio Republican Party Chair were found guilty of participating in a racketeering conspiracy, which involved nearly $61 million in bribes paid to a 501(c)(4) entity to pass and uphold a billion-dollar nuclear plant bailout. As a result of this conviction, the two men now face up to 20 years in prison.

Contributions to Chicago Mayoral Campaigns Are No Longer Subject To Limits: The Chicago Tribune reports that Chicago’s mayoral candidate, Paul Vallas, self-funded his campaign with $100,000, and by doing so, under Illinois law, he effectively lifted “restrictions on how much money both he and opponent Brandon Johnson can receive from campaign contributors.”

Texas PAC Leaders Fined $45K For Violating State Election Laws: The Houston Chronicle reports that the Texas Ethics Commission (TEC) imposed a $45,000 fine on two individuals who allegedly operated a Houston PAC without a treasurer (while it was placed in “inactive” status) and failed to file finance reports. In reaching its decision to impose “heavy” penalties, the TEC considered both “the extent of the alleged violations” and the individuals’ “‘bad faith’ responses to the TEC’s questions.
Massachusetts Investigates Party’s Possible Illegal Coordination With An Independent Expenditure PAC: The Boston Globe reports that the Massachusetts Office of Campaign and Political Finance opened an investigation into the state Republican Party and whether it coordinated with an independent expenditure PAC in violation of state law based on emails between the former party chair and the chairman of the PAC that discussed opposition research on a candidate for governor.

WEEK OF March 3, 2023

Latest Developments:

Federal Judge Temporarily Blocked Florida’s Ban On Lobbying By Current Elected Officials: Florida Politics reports that a federal judge issued a preliminary injunction against part of a new law that banned a wide range of elected officials from lobbying while in office on issues of “policy, procurement and appropriations” before other governments. The judge reasoned that because the state failed to show a link or nexus between quid pro quo corruption and an official’s lobbying of governments in other jurisdictions, the ban infringed upon the official-lobbyists’ First Amendment rights.

In Case You Missed It:

Pennsylvania Governor May Have Violated His Own Gift Ban By Accepting Tickets to the Super Bowl: Spotlight PA reports that despite the fact that Pennsylvania’s Governor Josh Shapiro had signed an executive order, banning himself and his staff from receiving gifts “from any ‘person or entity’ that ‘has financial relations with the Commonwealth,” a nonprofit, which was awarded a state contract, paid for the governor and his staff to attend the Super Bowl. A Professor of Government Ethics said the payment did not appear to fit within an exception to the gift ban. However, the executive order “does not lay out the consequences of violating the policy, nor does it say who is supposed to monitor…for potential violations.” A representative for the governor denied a violation of the ban because unlike a private actor, the nonprofit had a “decades-long history of collaborating with the state.”

Did A Press Entity Make An Illegal In-Kind Campaign Contribution By Sharing Candidate’s Ads, Before They Were Made Public, With A Competing Candidate?: Election Law Blog shares that based on the allegations in the Dominion Voting Systems lawsuit against Fox News, Rupert Murdoch, the chairman of Fox Corporation, provided Trump’s son-in-law and senior advisor with “confidential information about Biden’s ads” before they aired as well as “debate strategy.” Campaign contributions by a press entity are generally permissible as long as they are made when the “press is engaged in normal press functions.” The blog speculates that if the “ads were not shared for the purpose of newsgathering or opinion writing” or news reporting, then Murdoch may have made an illegal in-kind contribution to the Trump campaign.

WEEK OF February 24, 2023

Latest Developments:

Colorado’s Independent Ethics Commission adopted Position Statement 23-01, which increased the gift limit from $65 to $75.

Many Questions Remain Over California Pay-to-Play Law: The California Fair Political Practices Commission met last week and held an initial discussion of its proposed regulations to implement SB 1439 and the expansion of California’s local pay-to-play provisions in Government Code section 84308. Additional FPPC hearings and opportunities for public comment are expected in March and April before the regulations are finalized. The Attorney General also received a request from the author of SB 1439 to issue an opinion regarding the implementation of the bill. Nielsen Merksamer is reviewing the opinion request and considering potential comments after being contacted by the Attorney General’s office as an interested party in the matter. CalMatters reports that, in yet another proceeding, a coalition opposed to SB 1439 has filed a lawsuit seeking to invalidate the bill. With so many legal developments on section 84308 still to come, please do not hesitate to reach out to Nielsen Merksamer attorneys with any questions.

In Case You Missed It:

Personal Use of PAC Funds by Presidential Candidate Raises Legal Questions: The New York Times reports that payments of Mr. Trump’s personal legal bills made by his PAC raise legal questions since Mr. Trump is once again a candidate for president. According to campaign finance experts, the PAC’s payments of Mr. Trump’s legal bills can now be considered campaign contributions, which would be subject to legal limits; they present an opportunity for the Federal Election Commission to provide guidance with respect to its rules on the personal use of campaign donations.

Portland Investigates Company for Possible Failure to Register as a Lobbyist: Oregon Public Broadcasting reports that the Portland City Auditor has opened an investigation into a gunshot detection company for a possible violation of the city’s lobby law. Although the city “requires private companies to register as a lobbyist once they have spent a minimum of either $1,000 or eight hours on lobbying within a quarter,” the company engaged in efforts to convince city officials to invest in their technology, which may have exceeded these thresholds, without registering as a lobbyist.

Treasurer of Baltimore Campaign Accounts Stole Funds: Maryland Matters reports that the Maryland State Prosecutor’s Office charged a former Baltimore County for stealing from the campaign accounts of a former council member and a slate controlled by a former county executive while he served as their treasurer. Not only was he charged with felony theft and embezzlement, but he was also charged with perjury for signing campaign reports that failed to disclose expenditures made to pay his personal credit card bill, deposited into his own bank account, or used to travel with his romantic partner.

New Jersey’s Election Law Enforcement Commission Might Lose Independence: Politico reports that New Jersey’s Senate Judiciary Committee added an amendment to the Elections Transparency Act that would make the Election Law Enforcement Commission’s executive director a gubernatorial nominee. This amendment would effectively decrease the Commission’s independence and “erode a check between the governor and the agency.”

WEEK OF February 17, 2023

Latest Developments:

The Arizona Secretary of State’s Office updated contribution limits for the period from January 1, 2023 through December 31, 2024. Among other changes, the maximum that an individual or partnership may contribute to a statewide or legislative candidate was increased from $5,300 to $5,400 for the election cycle.

The Colorado Department of State issued a Notice of Temporary Adoption that adopts inflationary adjustments to campaign contribution limits, which are effective immediately and until the next adjustment is made in 2027. Among other changes, the maximum that a person may contribute to a legislative candidate was increased from $200 to $225 for a primary or general election cycle.

The State of California Fair Political Practices Commission (FPPC) issued a press release to announce the publication of its 2022 annual report. Among other achievements, the press release highlights the development of the Political Reform Education Program (PREP), which allows certain violators of the Political Reform Act to complete the program in lieu of paying monetary penalties, the Enforcement Division’s resolution of 1,075 cases with the approval of 161 settlements resulting in $617,548 in penalties, and the Legal Division’s issuance of 140 advice letters.

In Case You Missed It:

Legislator-Lobbyist Draws Complaint: Cowboy State Daily reports on a Wyoming legislator who is also a Government Affairs Manager and currently registered lobbyist for a chemical company. The article discusses an ethics complaint filed against a State Representative “alleging that his status as a registered lobbyist in Wyoming, along with his occupation and source of campaign donations creates a conflict of interest for the lawmaker.” Under state law, lobbying in Wyoming “means to attempt to influence legislation.”

George Santos’ Campaign Spending Raises More Questions: The New York Times reports that within Representative George Santos’ campaign filings with the Federal Election Commission, it discovered $365,399.08 in “mysterious expenditures, which list no recipient and offer no receipts.” According to election law experts, this unexplained spending is suggestive of “a pattern of remarkable sloppiness, if not an attempt to cover up improper spending that violated campaign finance laws.”

Chicago Mayor Benefits from Loophole in Pay-to-Play Rules: WBEZ Chicago reports that just a few weeks after a contractor landed a lucrative deal with the Chicago Transit Authority, whose leaders were appointed by Chicago’s mayor, Lori Lightfoot, the contractor made a $50,000 contribution to an independent expenditure committee that was created by a Lightfoot ally to support Lightfoot’s reelection effort. While this chain of events is not illegal, the article quotes the executive director of Reform for Illinois to point out that it can create the appearance of a “‘quid pro quo.’”

WEEK OF February 10, 2023

Latest Developments:

The U.S. Eighth Circuit Court of Appeals, in WinRed, Inc. v. Ellison, determined that federal campaign finance law does not preempt a state from enforcing a state’s consumer protection law that prohibits deceptive practices. According to the decision, the case arose from the use of pre-checked boxes and began when several attorneys general “sent WinRed a letter expressing concern about consumers being ‘charged for regular contributions that they did not intend and could not afford.’” WinRed asserted that because it “is a PAC engaged only in federal elections, its fundraising practices are governed exclusively by FECA [Federal Election Campaign Act], not state law.”

The San Francisco Ethics Commission’s new regulations on behested payments took effect this past week. The commission explains that the new regulations, among other things, clearly define what it means to solicit a behested payment, further define “interested party,” and provide additional details regarding indirect solicitations and public appeals.

Reminders:

The Practising Law Institute presents “Corporate Social Responsibility: Evaluating Political Activity Compliance in the Current Crossfire” on February 13, at 3 p.m. Eastern, Noon Pacific time. Register here for the one-hour program with Evann Whitelam and Jason Kaune of Nielsen Merksamer. The session will explore current topics, including social responsibility and “woke capitalism,” as they pertain to corporate political activity compliance and discuss ways to minimize reputational and legal risks while protecting shareholder value in the current crossfire.

In Case You Missed It:

A. Lobbyist Changes Advancing: The Los Angeles City Ethics Commission issued a press release describing a city council committee’s approval of changes to the city’s Municipal Lobbying Ordinance. The Commission initially sent the proposed changes to the Council last May. According to the release, the “committee voted to recommend approval of all recommendations, with a few amendments.” Spectrum News details the efforts and points out that “The city’s Municipal Lobbying Ordinance has not been comprehensively updated since its adoption in 1994.”

Ignorance of the (Lobby) Law is No Excuse: The Minneapolis Star-Tribune reports that “A prominent Minneapolis cycling and pedestrian advocacy group has been fined by state regulators for failing to register its employees as lobbyists.” The group “was ordered to pay a civil penalty of $4,000 and file lobbying spending reports for four previous years…” The cycling organization “acknowledged that many of its employees do perform lobbying activities, as defined in state law, but maintained that it hadn’t realized it had been doing so.”

Newest Zombie Campaign Accounts: Roll Call discloses that members of the last Congress, who did not seek re-election, “still hold nearly $54 million in leftover political money… Those funds cannot be used for personal expenses, but ex-lawmakers may use that money to make political donations and charitable contributions. They are under no time pressure to purge the money, either, and can sit on old campaign cash to use later, including for future runs for office.”

WEEK OF February 3, 2023

Latest Developments:

The Federal Election Commission posted new contribution limits for 2023-2024 federal elections. Among the changes, individuals may now contribute $3,300 per election to a federal candidate (up from $2,900 for 2021-2022).

The California Supreme Court, in Travis v. Brand, ruled that the standard for awarding attorney’s fees and costs to a prevailing defendant in an action under the California Political Reform Act is different from that of a prevailing plaintiff. Discretionary fees and costs should not be awarded to a defendant “‘unless the court finds the action was objectively without foundation when brought or the plaintiff continued to litigate after it clearly became so. … [P]revailing defendants may recover only when ‘the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’” The case involved a suit to compel supporters of a ballot measure to file certain disclosure reports required by the Political Reform Act. But the trial court ruled the supporters formed a general-purpose committee, not a committee primarily formed for the ballot measure.

Reminders:

California Pay-to-Play Briefing, February 9th: Join Nielsen Merksamer attorneys for a webinar on Thursday, February 9 at 11:00 am to discuss the implementation of SB 1439 and its impact on contributions to local elected officials. Contributors and recipients now face an even more complicated landscape when determining whether a contribution to a local official is permissible and whether an official may be disqualified from participating in a proceeding involving a donor, a participant, or their agents. Please RSVP to Donna Flannagan at dflanagan@nmgovlaw.com to attend.

The Practising Law Institute presents “Corporate Social Responsibility: Evaluating Political Activity Compliance in the Current Crossfire” on February 13, at 3 p.m. Eastern, Noon Pacific. Register here for the one-hour program with Evann Whitelam and Jason Kaune of Nielsen Merksamer. The session will explore current topics, including social responsibility and “woke capitalism,” as they pertain to corporate political activity compliance and discuss ways to minimize reputational and legal risks while protecting shareholder value in the current crossfire.

In Case You Missed It:

Texas Revolving Door Law Tested: According to the Dallas Morning News (via MSN), a Texas legislator who left office in March 2022 “is now officially lobbying on behalf of his clients. His activities come despite a law that bans state legislators from becoming lobbyists within two years of using their own campaign cash to donate to other politicians… His last expenditure from his campaign account was less than a year ago…” The article points out that ultimately it is up to the Texas Ethics Commission to enforce the law, although questions about the law’s constitutionality have been raised.

California, Florida, & Pennsylvania Burden Nonprofits: Philanthropy Roundtable analyzed the state government regulatory burden on nonprofit organizations, from start-up to oversight and identified the states with the greatest regulatory burden, including California. Among the conclusions, “While there is a need for regulations on the charitable sector to foster accountability and trust in charities, excessive levels of regulation impose a burden on charities that outweighs the benefit of the regulation.” In addition, New York, California, and Virginia lead the nation in highest filing fees for annual reports. The recent decision in Americans for Prosperity v. Bonta provided some regulatory relief by limiting collection of donor information for 501(c)(4) organizations.

Iowa Campaign Fines Payable Whenever: Cedar Rapids’ com investigated the inability of the Iowa Ethics and Campaign Board to collect fines for submitting late disclosure reports. The Executive Director said, “there is no deadline on when an advocacy group or campaign must pay a fine, which means a delinquent group can pay a fine whenever they’d like with no punishment.” Some groups or campaigns never received a notice of a fine and some don’t have any idea what the fine amount is because “staff members must manually enter the amount in the [computer] system.

Ethics Fight in the Sunflower State: The Kansas City Star reports that “Kansas Senate President Ty Masterson wants to reopen discussions about the scope and management of the Kansas Governmental Ethics Commission as the commission’s director pursues an investigation into campaign finance violations involving Republican officials…. Though full details of the commission’s investigation are not public it is believed the probe involved a broad scope of elected officials in the statehouse. The Kansas Chamber of Commerce confirmed last year it received a subpoena and accused the commission of undertaking a ‘fishing expedition aimed at silencing political speech.’”

FARA Investigation Closed: The New York Times disclosed that the U.S. Department of Justice told retired General John Allen “that federal prosecutors have closed an investigation into whether he secretly lobbied for the government of Qatar and that no criminal charges will be brought against him in the case…” The General’s spokesman said he traveled with the approval of President Trump’s national security advisor; the FBI alleged that the general received travel expenses and a $20,000 “speaker’s fee” from a businessman with middle eastern ties.

WEEK OF January 27, 2023

Latest Developments:

The New York City Council approved 0855-2022-A, which requires disclosure of independent expenditures exceeding $5,000 that are “in support of or in opposition to any municipal ballot proposal or referendum.” If approved by the Mayor, the measure will take effect January 1, 2024.

Pennsylvania Governor Josh Shapiro signed Executive Order 2023-04, which updates the section of The Governor’s Code of Conduct that restricts gifts to executive employees, appointees, and officials. The new order replaces “the total gift ban that had been in place for officials” in the prior administration. The Pittsburg Gazette points out that the new order “is intended to provide a degree of reasonableness that will ensure that lobbyists can’t use gifts to gain undue influence while at the same time ensuring that state officials can accept modest gifts from members of the community.” The exceptions generally do not apply to gifts from “a lobbyist, lobbying firm or principal…”

The Federal Communications Commission published proposed rules to implement portions of the Telephone Consumer Protection Act (TCPA) governing exempted phone calls (noncommercial calls to a residence, including political calls). Under the proposal, the previously published substantive rules would take effect July 20, 2023.

Reminders:

California Pay-to-Play Briefing, February 9th: Please join Nielsen Merksamer attorneys for a webinar on Thursday, February 9 at 11:00 am (Pacific) to discuss the implementation of SB 1439 and its impact on contributions to local elected officials. Contributors and recipients now face an even more complicated landscape when determining whether a contribution to a local official is permissible and whether an official may be disqualified from participating in a proceeding involving a donor, a participant or their agents. Please RSVP to Donna Flanagan at dflanagan@nmgovlaw.com to attend.

The American Bar Association’s Midyear Meeting in New Orleans, February 1 to 6, 2023, includes a track of programs on the rule of law in governance and civic society #ForAll, including a panel on elections chaired by Nielsen Merksamer’s Jason Kaune.

In Case You Missed It:

No Disclosure of PA Inaugural: The Associated Press reports that the Pennsylvania Governor Josh Shapiro has not disclosed the donors to his inaugural celebration. The article discusses practices in other states, but notes that Gov. Shapiro’s aides “organized it as a nonprofit 501c(4) organization under federal tax laws that do not require the disclosure of donors or limit who can give or donation amounts.”

Two Years in Prison for Violating FARA: Politico reports that “An American consultant was sentenced Wednesday to two years in prison for an illicit lobbying effort to get the former Trump administration to drop an investigation into the multibillion-dollar looting of a Malaysian state investment fund…” According to the article, she “failed to disclose to the federal government that the lobbying effort was done on behalf of a fugitive Malaysian financier who has been charged in the U.S. with conspiring to launder billions of dollars…”

Kansas Senate Campaign Funds Scammed: According to the Associated Press, “Someone scammed U.S. Sen. Jerry Moran’s reelection campaign out of $690,000 by getting the Kansas Republican’s accounting firm to wire the money to fraudulent bank accounts…” According to the report, the “campaign received two fraudulent invoices that appeared to be from SRCP Media Inc., a Washington area company…”

Does “Lobbying for Jesus” Require Registration?: The Nebraska Examiner explores that question with regard to a former pastor who leads a bible study group for state senators. The article states that Common Cause Nebraska asserts that the pastor’s “teachings have led to the introduction of bills.” According to the article, a board member of Common Cause “filed a complaint with the Internal Revenue Service this fall about the group’s 501(C)(3) status, arguing that Capitol Studies [the bible study group] violates the prohibition of excessive lobbying.

WEEK OF January 20, 2023

Latest Developments:

The Tennessee Bureau of Ethics and Campaign Finance issued “Updated Campaign Contribution Limits for 2023-2024, Effective Immediately.” Persons may now give up to $4,900 per election to candidates for statewide office and $1,800 per election to legislative candidates. Corporate PACs may now give up to $14,400 per election to candidates for statewide office. Corporate PAC limits also increased for legislative and other state and local candidates.
The Bureau also announced a Gift Limit Increase, effective January 16, 2023. The exception to the prohibition on gifts to officials is increased to $73 per event for lobbyists, lobbyists employers, and interested persons. The annual limit aggregate limit is also increased to $147 per official.

In Case You Missed It:

Arizona Inaugural Haul: According to KAWC, the Governor’s inauguration “event cost only about $207,000 to put on.” But the Governor “collected nearly $1.5 million in donations from corporations and other special interests to cover the cost of her inauguration.” The article asserts “that’s going to leave her with a bunch of money she can spend on everything from gifts to visiting dignitaries to trying to flip control of the Arizona Legislature to Democrat in 2024.”
No Funding, No Enforcement: The Oklahoman reports on the lack of funding for the Oklahoma Ethics Commission. According to the article, the “agency has the evidence needed to prosecute multiple violations of the state’s campaign finance laws… . Just one trial case can cost one-third of the agency’s budget,” according to the Commission’s Executive Director. The “Commission has consistently requested more funding, but state lawmakers have not shown an interest in increasing the agency’s budget.”

On-Air Disclosure Draws Complaint: We previously reported on the congressional candidate who “described live on the radio a self-funded scheme to inflate his campaign fundraising numbers” in which he distributed money to relatives to make contributions to his campaign and then paid himself a salary from the campaign. VT Digger reveals that “attorneys from the Campaign Legal Center ask that the FEC investigate (the candidate) and ‘seek appropriate sanctions for any and all violations’…” The CLC “told VTDigger that the maneuver was ‘so blatantly illegal’ and fit the ‘textbook definition’ of a straw donor scheme.”

WEEK OF January 13, 2023

Latest Developments:

The Washington (State) Public Disclosure Commission published proposed changes to various campaign contribution limits and reporting thresholds, based on inflation. The Commission will hold a hearing on January 26 to consider adoption of a regulation to encompass these changes. Among the many changes, state office candidate limits would increase from $2,000 to $2,331 per election, and legislative candidate limits would increase from $1,000 to $1,165 per election.
The Massachusetts Supreme Court, in DiMasi v. Secretary of the Commonwealth, determined that the former Speaker of the Massachusetts House of Representatives is not disqualified from registering as a lobbyist due to federal felony convictions for corruption in office. The court found that the state’s automatic disqualification statute specifically applies to felony convictions under state law and does not apply to analogous federal law.

In Case You Missed It:

San Jose Lobbyist Opaque Reports: San Jose Spotlight describes how lobbyists are skirting transparency requirements Specifically, a “review of 2022 lobbying disclosure reports show how some lobbyists failed to divulge details of their meetings. While some provide a blanket statement about who they work for, others simply leave the field blank.” The city’s law requires that lobbyists “submit weekly reports and disclose details, including who their client is, who they meet with, how they communicate and, most importantly, the topic being discussed.”
Seattle Restricts Voucher Program: Real Change News describes the Seattle Ethics and Elections Commission’s changes to Settle’s public financing programs, which “allocates four $25 vouchers to eligible Seattle residents who can donate them to (city) candidates…” The change prohibits campaign staff from collecting replacement forms from residents who have lost their original vouchers. The article notes that “these changes were made following an influx of accusations of ‘voucher harvesting’ by campaigns.”

WEEK OF January 6, 2023

Latest Developments:

The Illinois State Board of Elections announced increased campaign contribution limits beginning January 1, 2023 (“2023 Contribution Limits”). Corporations may contribute up to $13,700 and individuals give up to $6,900 to a candidate per election cycle. Limits also increased for contributions to PACs and political parties.
The North Carolina State Board of Elections issued a press release to announce that “Effective January 1, 2023, the contribution limit for North Carolina candidates and political committees increased by $800 per election, from $5,600 to $6,400.”

In Case You Missed It:

Fine for Failure to Disclose Lobbying: Cleveland.com reports that the Federal Energy Regulatory Commission fined EnergyFirst for failing to disclose lobbying expenditures. According to the article, the company “failed to disclose nearly $94 million in lobbying in support of legislation now at the center of a criminal public corruption scandal and agreed last week to pay a related $3.9 million fine.” The payment resulted from a consent decree under which the company stipulated that it had not provided lobbying information during an audit of the company and its affiliates by the agency. The agency discovered the omission after a previous deferred prosecution agreement with the Department of Justice.

Pandemic in the Rear View Mirror: The Hill finds that Washington “Lobbyists are celebrating their return to the Capitol as it reopens to the public, ending nearly three years of pandemic restrictions that severely limited physical access to lawmakers.” This week marked the first time that lobbyists could roam “the Capitol campus this week without an appointment or congressional escort.”
Texas Speaker Limits Struck Down: MSN (from the Dallas Morning News) describes a federal court settlement (in Bruce v. Johnson) that “permanently barred the state from enforcing ethics laws that prohibit outside money from being spent in a speaker’s race.” According to the article, “Spending in a Texas speaker race by anyone other than an officially registered candidate for speaker was barred by the Legislature in 1973.” The new federal ruling follows a 2008 case, Free Market Foundation v. Reisman, which also enjoined the prohibition on independent expenditures in the speaker’s race.

WEEK OF December 30, 2022

Latest Developments:

The United States Court of Appeals for the District of Columbia issued a denied a rehearing in CREW v. FEC, and the court decreed that “The Federal Election Commission’s decision to dismiss a complaint on the grounds of prosecutorial discretion is not judicially reviewable…” The opinion acknowledges that the “dissent expresses consternation about the inability of this court to oversee the Commission’s non-enforcement decisions. But nowhere does it contest that the Commission retains prosecutorial discretion…”
President Biden approved 3905, which requires the Federal Acquisition Regulatory Council to update regulations to require executive agencies to establish or update conflict of interest provisions that pertain to federal contractors. The Senate Committee on Homeland Security and Government Affairs issued a press release explaining the measure.

In Case You Missed It:

Charitable Access to the Supremes: An article in the New York Times has raised eyebrows: The Supreme Court Historical Society “has raised more than $23 million over the last two decades. Because of its nonprofit status, it does not have to publicly disclose its donors — and declined when asked to do so.” However, the Times dug further and asserts that “at least $4.7 million came from individuals or entities in years when they had a pending interest in a federal court case on appeal or at the high court…”
Florida Revolving-Door Troubles: The Miami Herald describes the efforts to stop a new 6-year revolving-door prohibition for all Florida public officials. Five local officials have filed a federal lawsuit to block the law from taking effect. They argue that “Lobbying has ‘unfairly become encrusted with insidious connotations’…” and that the law is “too broad and that it violates their constitutional rights to freedom of speech.” The district court judge denied a temporary order to block the measure but set a hearing for later in January.

Zombies in California: Cal Matters describes the state of leftover campaign funds (“zombie accounts”) of former California officeholders who have opened accounts, but not actually run for any office in the recent election cycle. “CalMatters counted campaign funds for the Legislature and state constitutional offices that politicians are sitting on years after leaving their positions, that are in committees for past races or for which the candidate did not end up running.” Former four-term Governor Jerry Brown has over $13,000,000 in leftover campaign funds.

Miami Beach Contribution Prohibition Work-Around: The Miami Herald (posted on MSN ) notes that “Developers and lobbyists seeking certain city approvals, as well as active city vendors, are barred from donating to campaigns under rules that have expanded over the past two decades.” Nevertheless, the article presents a laundry list of ways to circumvent city limits, including contributions from spouses and family members and contributions to PACs.
No Limits on But Reporting of Connecticut Inaugural Contributions: States have taken different approaches to inaugural committees. The Connecticut Mirror reports that “Since at least 1998, the Office of State Ethics and its predecessor, the State Ethics Commission, has given the same advice: Connecticut law places no limits on contributions from lobbyists, their clients or contractors for inaugurals.” However, the 1998 informal opinion “advised that contributions from lobbyists would ‘foster goodwill and are, therefore, an expense in furtherance of lobbying. The lobbyist will need to include the total amount contributed on its financial disclosure form.’”

WEEK OF December 16, 2022

Latest Developments:

The Alabama Ethics Commission issued the following statement: “The Alabama Ethics Commission voted today to increase the amount of what is considered [a] “de minimis” [gift] from $25.00 or less per occasion and an aggregate of $50.00 or less in a calendar year to $32.00 per occasion and to an aggregate of $64.00 or less per calendar year to reflect the increase in the cost of living per Code § 36-25-1(11). This change only affects the definition of “de minimis” and has no effect on the exception for meals in Ala. Code § 36-25-1(34)(b)(16).”
The District of Columbia enacted B 24-1134, which clarifies that pay-to-play provisions of the Campaign Finance Reform Amendment Act of 2018 will not be applicable to any inaugural or transition committee organized in 2022 or to contracts entered into or executed before November 9, 2022.

In Case You Missed It:

FARA Enforcement to Continue: According to Politico, “The head of the Justice Department’s counterintelligence division vowed… that the department would not be deterred by a string of recent legal setbacks in its attempts to crackdown on foreign influence efforts in the United States.” The article indicates that the official said “the number of active FARA registrants continued to trend upward last year, and that the FARA Unit is growing in size.”
Corporate PAC Money Pledge, Again: Roll Call reports that “More than 70 members [of Congress] say they are swearing off [Corporate PAC] contributions, indicating that a trend, almost exclusively among Democrats, that caught on during the 2018 election cycle has persisted.” Others “saw it as a gimmick for outsiders who usually don’t get such contributions anyway.”
Straw Donor Violations Alleged: Business Insider posted a copy of the indictment of Sam Bankman-Fried arising from the implosion of cryptocurrency exchange FTX, which indicates “he’s accused of committing several campaign finance violations.” According to the article, “the indictment alleges, [he donated] to candidates and political action committees using other people’s names.”

Essential Ethics will Return in 2023!

WEEK OF December 9, 2022

Latest Developments:

The California Fair Political Practices Commission published a proposed opinion regarding a recently enacted bill (SB 1439), which prohibits local officials from taking part in a proceeding involving a license, permit, or other entitlement if certain campaign contributions were received in a specified period. The bill takes effect January 1, 2023. The opinion indicates that the restriction will not apply to contributions made prior to the effective date. The commission will consider the opinion at its next meeting on December 22, 2022.

The Washington State Court of Appeals upheld most of the trial court’s judgment in a case in which the appellant engaged in multiple and intentional violations of the state’s Fair Campaign Practices Act. In Washington v. Eyman, Mr. Eyman was found to have improperly reported and concealed various campaign activities. The court also upheld a $2.6 million fine, although it remanded the matter to consider whether the fine should be reduced under the excessive fines clause.

The South Dakota Secretary of State announced that the annual limit for cumulative gifts from lobbyist will be increased to $115.47 for calendar year 2023.

In Case You Missed It:

Lobbyists’ Contributions in Chicago: The Chicago Sun-Times reports that the Mayor of Chicago accepted $68,000 from companies affiliated with a registered lobbyist. Based on “the spirit” of a ban imposed by her predecessor, the mayor is giving most of it back. According to the article, “the mayor has decided to return only $44,500 of the $68,500 in contributions.”

FARA Arrest: According to the New York Times, “Former Representative David Rivera and a longtime associate were charged with conspiracy and failure to register as foreign agents…” The article states that the former congressman “tried to lobby members of Congress and the White House on behalf of President Nicolás Maduro of Venezuela, a socialist.”

Conflict-of-Interest: Oaklandside reports that the Oakland Public Ethics Commission fined an Oakland City Council Member $19,000 for failing to disclose her ownership interest in a condominium adjacent to a park and then participating in a decision to spend $1 million on that park.

WEEK OF December 2, 2022

Latest Developments:

The Federal Election Commission adopted a final rule governing Internet Communications. ( 2011-02; [Version B.]) But Axios reports that, after proposing a “major digital ad transparency measure,” the Federal Election Commission removed the proposal from its agenda at a previous meeting and made a small, two-word change. The article explains that the small change “significantly reduces the scope of the regulation.”

The New York State Commission on Ethics and Lobbying in Government announced that the new mandated ethics course that lobbyists and lobbyist employers must complete will be available January 18, 2023. “For purposes of training compliance by organizations, the Chief Administrative Officer is responsible for taking the training on behalf of the organization.”

In Case You Missed It:

Candidates Benefit from Cruz Decision: The Dallas Morning News reports that following the U.S. Supreme Court case in Federal Election Commission v. Ted Cruz for Senate, which voided a limit on repayments of candidates’ loans to their committees, “At least 18 current lawmakers and former candidates have availed themselves of the flexibility [of the] Cruz [decision]… Together, they’ve recouped $5 million they’d written off and thought they’d never see again.”

What if There Were No Big Donors?: com reports that the Maine Ethics Commission fined the America Leadership Committee-Maine over $10,000 for “sending mailers and running digital advertisements without disclosing the group’s top three donors.” According to the article, “the committee stated there were ‘no top donors.’” The committee’s attorney said that the “committee was funded from a special account of small-dollar donors, all of whom gave less than the $1,000 that would have required disclosure…. [He] said the national committee will reexamine its financial disclosure practices…”

Epidemic of Cyber-Theft of Political Funds: Business Insider reports on a recent theft of $186,000 from a congressmember’s political committee. The money was frozen by the bank, and thus not lost, but the article called it “a sophisticated effort.” The article calls the problem an “epidemic,” noting that “Dozens of political committees of all kinds and sizes have lost money at the hands of thieves and embezzlers…”

Alabama Power Struggle: The Alabama Attorney General sued the Alabama Ethics Commission in an effort to revoke an advisory opinion. Alabama Political Reporter explains that “the Ethics Commission is saying [in its opinion] that if during the course of an investigation it finds evidence that would aid the person under investigation, or possibly end the investigation and clear that person’s name, the Commission has no responsibility to disclose that information.” The Attorney General contends the opinion will “undermine any cases the Commission might refer to the AG’s office.”

More on Louisville Lobbyist Registration. Last week we reported on the adoption of a lobbyist registration ordinance in Louisville, Kentucky. This week, Louisville Public Media tells us “What you need to know about Louisville Metro’s new lobbying rules.” The article also explains that “The lobbying ordinance in Louisville was part of a package of reforms proposed earlier this year, after Metro Council was sued over alleged corruption and favoritism.”
New York Turkey Give-Away Runs A-Fowl of Ethics Rules: The Albany Times-Union reports that “new ethics rules wouldn’t permit the state to do what they usually did, where companies would donate the turkeys and the state would distribute them…” Accordingly, the state’s Democratic Party took over distribution at the last minute. A spokeswoman for the state’s Republican Party criticized the move, stating “‘That’s a state resource that you’re turning over to a political organization. At best it stinks, at worse that’s an inappropriate use of state resources…’

WEEK OF November 25, 2022

Latest Developments:

The California Fair Political Practices Commission formally adopted revised contribution limits and increased gift limits. For 2023-2024, the gift limit increases from $520 to $590. Contribution limits for gubernatorial elections increase to $36,400 per person per election and legislative and local candidates’ limits increase to $5,500. Other increases apply to other constitutional officers and special limits apply to contributions from small contributor committees.

Louisville, Kentucky approved a lobbyist ordinance, which requires that lobbyists and lobbyist employers register within 7 days of engagement. Lobbyists and employers will be required to file disclosure statements by July 1 and January 1, covering activity from December 16 to June 15 and June 16 to December 15, respectively. The ordinance creates limits on gifts from lobbyists and lobbyist employers to public officials. The measure takes effect in 6 months and will require biennial renewals at the end of even-numbered years.

The Akron City Council approved Ordinance O-303-2022 to increase limits on contributions to candidates for mayor, city council, and city ward positions. Mayor and council member limits increase from $750 to $1,000 per election, and city ward candidate limits increase from $500 to $750 per election. New PAC limits allow PACs to contribute $2,000 to mayor and council candidates and $1,500 to ward candidates in lieu of the old limits.

Reminders:

The Council on Governmental Ethics Laws (COGEL) meets in Montreal, Canada December 4 to 7, 2022. The conference focuses on developments in five disciplines: campaign finance, lobbying, ethics, elections, and freedom of information. Interested persons can register here. Nielsen Merksamer’s Jason Kaune leads the session on developments in campaign finance litigation.

In Case You Missed It:

Passive Watchdog: The Los Angeles Times, in an editorial, asserts that “California’s political ethics watchdog needs to start baring some teeth.” The piece claims that the Fair Political Practices Commission is “overloaded with old, unresolved cases and is not properly prioritizing those that need urgent attention.” The article cites several specific officials whose cases are of concern.

Federal Conflicts: The Wall Street Journal reports the Campaign Legal Center has filed complaints with the federal government alleging that the government is failing to enforce conflict-of-interest laws. The Journal notes that “thousands of federal employees at 50 federal agencies held stock in companies that were regulated by the agencies where those employees worked.”

Met Gala Snub Generates Investigation: According to the New York Times, a Congresswoman from New York who was dropped from the annual Met Gala invitation list sought to be reinstated on the guest list. The Office of Congressional Ethics issued a report recommending that the matter be further investigated because she “may have solicited or accepted impermissible gifts associated with her attendance at the Met Gala.” After the Met removed her from the guest list, her “efforts to gain free attendance may implicate the prohibition on solicitation of gifts under federal law and House rules…” The report points out that “Members may only accept unsolicited offers of free attendance.”

Special Session Spawns Lobbyist Penalties: The Idaho Capital Sun reports that, after a one-day special session of the legislature, “most registered lobbyists were still required to submit a report about any related lobbying activities they might have participated in around the session, even if the report showed no activity.” The Secretary of State fined ninety-one lobbyists a total of $24,000.

Limiting Citizen Initiatives: The Ohio Capital Journal describes an effort by some legislators to require that “citizen-led constitutional amendments gain a 60% supermajority at the ballot for passage…” The proponents intend that measure to “‘safeguard Ohio’s constitution from special interests…’” Curiously, the article points out that “11 of 16 citizen-led amendments have failed since 2000, so it wasn’t clear exactly why they want to raise the bar higher as they also noted of the five measures that passed, three cleared 60% at the ballot box.”
Revolving Door Starts to Spin: Politico reports on the cyclical phenomenon of departing lawmakers “trying to land a comfy K Street gig.” The article notes that “Former lawmakers are prohibited from directly lobbying their former colleagues during a “cooling-off period” that lasts one year for House members and two years for senators.” However, former lawmakers commonly provide guidance, rather than direct lobbying – a “kind of advising… referred to as ‘shadow lobbying…’”

WEEK OF November 11, 2022

Latest Developments:

Voters in Arizona Approved Proposition 211, which requires disclosure of total campaign media spending or acceptance of in-kind contributions, in an election cycle if $50,000 or more is spent in statewide campaigns, or more than $25,000 other campaigns, with certain exceptions. Entities must disclose donors of $5,000 or more and must provide certain notice to donors. The full text of the measure may be found in the Arizona 2022 General Election Publicity Pamphlet.

Michigan Voters Passed Proposition 1, which imposes 12-year term limits and requires constitutional officers and legislators to file disclosure reports. Those reports include, among other things, disclosure of gifts and travel reimbursements received from lobbyists and lobbyist employers and disclosure of charitable contributions made by lobbyists and lobbyist employers at the behest of the official. The first disclosure statement is due April 15, 2024 and contemplates enabling legislation before December 31, 2023.

Voters also Passed Term Limits in North Dakota in Constitutional Measure 1, which imposes an 8-year limit on legislators and a two-term limit on the Governor. The measure takes effect January 1, 2023.

The Voters of Portland, Maine amended the city’s charter by approving Ballot Question 3 and Ballot Question 8. Ballot Question 8 requires the city council to establish an ethics commission and requires the council, upon recommendation of the ethics commission, to establish a code of ethics. Question 3 concerns campaign finance and includes provisions that prohibit corporate contributions to candidates, limit contributions from entities substantially under foreign influence and require that contributions be reported to the city clerk.

Reminders:

Hearing on the Timing of California’s Expanded Local Pay to Play Law: The California Fair Political Practices Commission will consider a staff memorandum at a hearing on November 18 that will ask for direction in applying the state’s expansion of a law that triggers disqualification for contributions over $250 and extends a ban of making contributions under SB 1439. Staff takes the position that the law should reach back to contributions made in 2022. According to the Los Angeles Daily News, Steve Glazer, the author of the bill, said SB 1439 “‘may be one of the most significant reforms of the last 50 years.’”

In Case You Missed It:

New Federal Rule on Internet Communication Disclaimers Proposed: The Federal Election Commission will consider a proposed rule on internet communication disclaimers. The commission indicates that it intends to implement changes “in light of technological advances since the Commission last 10 revised its rules governing internet disclaimers in 2006, and to address questions from the public 11 about the application of those rules to internet communications.” Axios explains the genesis of the rule and the resulting intrigue.

Failure to Disclose Lawsuit: The New Mexico Ethics Commission announced that it filed a lawsuit against an organization that failed disclose to the commission that the organization “spent thousands of dollars on text message advertising campaigns seeking to influence the outcome of a New Mexico ballot question…”
Fine for Late Filing: The Oregonian reports that the Oregon State Elections Divisions will fine the National Rifle Association for failing to timely file a donation to oppose an Oregon gun control ballot measure. The NRA will be fined one-half percent of the contribution amount per day for the 64 days that the report was late (i.e., 32%). The NRA did not provide any comment on the late filing.
Coordination Lawsuit: Open Secrets discloses that the Ready for Ron hybrid PAC sued the Federal Election Commission over a rule that limits the PAC’s ability to share a list of supporters, including contact information. “At the heart of the lawsuit is whether that list – something campaigns typically spend a lot of money compiling – is political speech or an in-kind contribution.”

WEEK OF November 4, 2022

Latest Developments:

The District of Columbia’s Pay-to-Play Law Takes Effect November 9, 2022. The law was supposed to take effect November 2020, but it was paused for lack of funding. The District’s Fiscal Year 2022 Budget (at page 207) provides that the law “…shall not apply to … “contract extensions or modifications, sought, entered into, or executed before November 9, 2022,” thus making it applicable to new or extended contracts on and after that date.

The Alaska Public Offices Commission (APOC) issued an order to the Republican Governors Association (RGA) and A Stronger Alaska questioning whether “sufficient separation between the two entities” exists and warning that penalties lie ahead if “the two entities are one in the same.” Alaska Public Media explains a complaint filed with APOC accused RGA of creating “a shell organization called A Stronger Alaska in order to evade state campaign disclosure laws.”

Reminders:

Hearing on the Timing of California’s Expanded Local Pay to Play Law: The California Fair Political Practices Commission will consider a staff memorandum at a hearing on November 18 that will ask for direction in applying the state’s expansion of a law that triggers disqualification for contributions over $250 and extends a ban of making contributions under SB 1439. Staff takes the position that the law should reach back to contributions made in 2022. According to the Los Angeles Daily News, Steve Glazer, the author of the bill, said SB 1439 “‘may be one of the most significant reforms of the last 50 years.’”

In Case You Missed It:

Congressional Candidate Describes the Laundry Process: According to the Vermont Digger, a candidate for Vermont’s lone house seat, in a radio interview, described how he “‘drained’ his wife’s business’s bank account and distributed roughly $25,000 among family members — including his toddler son, June — who then donated the money to his campaign. [The candidate] said he is now recouping the money by collecting a salary from his campaign.” Campaign finance experts agreed that the action “appears to have violated the [Federal Election Commission’s] ban on contributions ‘in the name of another,’ colloquially known as the straw donor ban.”

A Jury in a Federal District Court in Brooklyn acquitted Tom Barrak of charges that he was an unregistered foreign agent lobbying for the United Arab Emirates. CNN explains that “In the last five years the Justice Department revived a criminal statute that laid dormant for decades and brought numerous criminal cases under the Foreign Agents Registration Act, known as FARA, against individuals who were lobbying for foreign governments or companies without disclosing it, as required by law, to the attorney general. … Barrack, who wasn’t charged under the FARA statute, was indicted on charges he acted as an unregistered agent of a foreign government. The statute, known as “espionage lite” by the national security community, is often reserved for cases involving spies.

L.A. City Council Bribery Trial Begins: A foreign-owned hotel company is on trial in Los Angeles for allegedly bribing a city council member for support of a development project. Spectrum News 1 reports that the trial is part of a “July 2020 racketeering indictment against [the council member] and various associates. The 34-count indictment, alleging wide-ranging political corruption, was broken up into three trials in LA federal court.”

Can’t Change Your Mind: A Federal Judge in Colorado, in Archer et al. v. Griswold, rejected a candidate’s efforts to get out of voluntary spending limits in his race for the Colorado House. The Colorado Springs Gazette reports that the candidate “had inadvertently signed up for voluntary spending limits when he registered his candidacy.” The voluntary spending limits permit an opt out; the candidate argued that he did not opt into the limit regime.
Montana Ethics Leadership Change Pending: The Commissioner of Political Practices, Jeff Mangan has announced his impending departure. The Helena Independent Record points out that few of the state’s Commissioners of Political Practice have served out their entire single five-year term, and many have “come under fire for bringing a perceived partisan bias to their work investigating political complaints.”

WEEK OF October 28, 2022

Latest Developments:

A US Federal District Court in Illinois blocked two campaign finance reforms recently enacted in that state. The laws affected judicial elections, with one “prohibiting a judicial candidate from receiving contributions from any ‘out-of-state person’…[while the] second provision prohibits an independent expenditure committee…from accepting contributions from any single person in a cumulative amount that exceeds $500,000.” The judge’s memorandum explained that “[t]he plaintiffs have shown that they have no adequate remedy at law and will suffer irreparable harm” if the restrictions remained in effect for the upcoming elections.

The DC Office of Campaign Finance ruled this week that a City Council candidate misused funds she received from the District’s public election funding program and ordered her to return the money. The issue arose when the candidate paid for poll that surveyed the candidate performance for another City Council race (for which she was not the candidate). The results of the poll were said to have improperly influenced that election when several like-minded candidates dropped out of the race en masse, ostensibly to not split the vote. DCist has more.

A Superior Court in King County, Washington imposed a more than $24 million fine on a major tech company for hundreds of violations of the state’s campaign finance disclosure and transparency laws. The company repeatedly declined to disclose the information state law requires of political ads on its social media platform. NPR has more analysis.

In Case You Missed It:

Ethics Reform on the Horizon in Hawaii: The Honolulu Civil Beat reports that the Hawaii Commission to Improve Standards of Conduct released several suggestions which would impose additional requirements on lobbyists and those trying to influence lawmakers. Among the recommendations are “proposals…[which] would mandate annual ethics training for lobbyists, require them to disclose a list of bill numbers they are trying to influence and prohibit them from giving gifts to legislators and government employees.” The suggestions come on the heels of “two former lawmakers…[being] charged with taking bribes in order to influence legislation” earlier this year and increasing concerns about “lawmakers’ outside business interests.” Observers note that “the question remains how far lawmakers will be willing to go in imposing more rules on themselves.”
When Agencies Aren’t Doing Their Job: Local media reports that Starr County, Texas may not be maintaining or even collecting campaign finance reports, as it required to under state law. The discovery arose when a local judicial candidate filed a records request with the county for his opponent’s campaign finance report and “the county said in response…that it does ‘not currently retain’ the reports’”. Outside groups then officially requested other county level campaign finance reports, only to be given the same response. The article notes that this finding calls into question “whether candidates are filing reports at all and whether the county ever maintained the reports to begin with”.

WEEK OF October 21, 2022

Latest Developments:

The Center for Political Accountability announced that its noted “CPA-Zicklin Index of Corporate Political Disclosure and Accountability” would be expanded from “rating S&P 500 companies to evaluating the entire Russell 1000.” In effect, the expansion means the index now “gives attention to large and medium-cap U.S. companies that are not S&P 500 components.” The 2022 Index was released this month, providing its annual ranking of corporate political spending and transparency. JP Supra has more coverage.

The United States Department of Justice announced the sentencing this week of a former Congressional candidate “for wire fraud and falsification of records” related to his failed 2020 Congressional campaign. According to the DOJ, the former candidate received COVID-19 related federal loans for his small business and then “used a significant portion of these funds for…political advertisements.” He also “told employees…that they could continue to be paid their normal wages if they worked on his congressional campaign,” which they did. The candidate’s FEC report “omitted any in-kind contributions…including the thousands of dollars of in-kind contributions to his campaign in the form of employee time and work.”

The Texas Ethics Commission announced this week the posting of a suite of recently issued advisory opinions. The opinions concern campaign finance filings, post government employment restrictions and other procurement issues.

In Case You Missed It:

Friendly PAC Causes an Internal Squabble: Politico reports on a public feud over resources between Democratic Coalition, a progressive political action committee, and a US Senate nominee supported by that PAC, whose campaign called the committee a “scam” for using the candidate’s likeness to raise funds. While the quarrel is only the latest in a controversial saga for the organization, accused by likeminded campaigns “of soliciting money from impassioned liberals only to spend it on its own operations,” it highlights increased attention on these PACs and their spending by “the federal government [which] has only recently begun to mobilize in earnest.” Indeed, the article notes that the FBI issued a warning last year, alerting donors to these potential cons and the “FEC heard recommendations from a working group [after the last election cycle] on how best to address the issue” of PAC fundraising and proper use of funds.
More Candidates Paying Themselves Back: Open Secrets reports on the increasing trend of post-election contributions to victorious federal candidates who self-funded and now seek to pay themselves back. The trend increased after a rule change, in response to the SCOTUS decision FEC v. Cruz, which removed the “restriction on an authorized committee’s repayment of personal loans.” The article notes that self-funding by federal candidates this year has already exceeded that of four of the last five election cycles. Critics contend that these developments allow candidates “to skirt contribution limits…effectively allow[ing] a candidate to go to hit up a single donor for more than the campaign contribution limits by asking them to also make contributions to their prior election cycles for loan forgiveness.”

WEEK OF October 14, 2022

Latest Developments:

A US District Court Judge this week dismissed a Department of Justice suit accusing casino magnate Steve Wynn of being “an agent of the People’s Republic of China…[and] seek[ing] an injunction forcing him to register as such under the Foreign Agents Registration Act (FARA).” The suit stems from “conversations with members of the Trump Administration regarding the PRC’s interest in the return of an unnamed Chinese businessperson, who fled China in 2014 and sought political asylum in the United States….[with the DOJ] alleging that Wynn traded these lobbying efforts for favorable treatment of his casino business in Macau.” While the ruling stresses that the decision applies to civil, not criminal action, it concluded that “longstanding court precedent bars the Justice Department from requiring foreign agents to retroactively register once they are no longer doing the work in question.” The Wall Street Journal provides more coverage.

A Texas State Court of Appeals dismissed a lawsuit in Sullivan v. Texas Ethics Commission, affirming the constitutionality of the Commission itself and upholding a political fine levied against Michael Sullivan, the former head of a political non-profit. Importantly, the court “reaffirmed the agency’s authority to enforce election laws, which Sullivan had called into question in the suit, claiming it violated the separation of powers principle because it’s a legislatively appointed office with executive power to discipline.” The Houston Chronicle provides more coverage.

In Case You Missed It:

Undeterred from Campaign Contributions in Anaheim: The Voice of OC reports on the staggering sums spent in this year’s Anaheim municipal elections by the very businesses implicated in recent city-wide corruption and campaign finance scandals. One major entertainment and resort company with a city-focused PAC has already spent at least $1.3 million on its “preferred candidates…[including] hundreds of thousands of dollars for internet ads and direct political mailers to bolster their campaigns. Notably given that the former mayor was at the center of one of the recent Anaheim scandals, the PAC in question and the city chamber of commerce “haven’t spent money on the race.”

Slap on the Wrist for Illegal Campaign Contribution: The Colorado Springs Gazette reports on the imposition of a $1,000 fine by the Secretary of State on Colorado Springs Forward for a nonprofit’s illegal campaign contribution to two El Paso County commissioner candidates. The Gazette notes that state “law prohibits corporations from contributing to candidates or political parties. Additionally, the $5,000 contributions were over the $2,500 campaign donation limit a county candidate may receive under state law.” An affiliated PAC routinely makes campaign contributions, which an agent for that organization claims was the source confusion about who could make the donation. Critics contend that the fine was nominal at best and that the existence of the PAC demonstrates the organization was sufficiently familiar with state campaign finance laws.
Alleged Illegal Coordination in the Last Frontier: The Alaska Public Offices Commission has decided to hold an emergency hearing as to whether the incumbent governor illegally coordinated with a non-profit organization to make political expenditures favoring his current reelection campaign. The Anchorage Daily News reports that government watchdog groups filed a complaint claiming that the governor “schemed ‘to improperly subsidize his campaign’ using public funds and coordinating”. The group points to the fact that the head of the nonprofit was simultaneously listed as the treasurer for the governor’s campaign earlier in the year. The governor’s “campaign responded by asking that the complaint be dismissed” while the complainants want to keep the nonprofit from ”spending the $3 million it has in its account going into the final month before Election Day”.

WEEK OF October 7, 2022

Latest Developments:

The Governor of California signed a suite of bills related to the state Political Reform Act.One of those bills, AB 1798, requiring certain disclosures on electronic advertisements, is inoperative. That bill defers to SB 1360, which “[r]evises requirements for certain political advertisements to identify the top contributors to the campaign committee paying for the advertisement.” Another bill SB 459will require disclaimers on issue advertisements. Most significant for any campaign contributor to local candidates is SB 1439, which expands the state’s limited “pay to play” restrictions from appointed board members to all local officials making decisions involving a “license, permit or other entitlement for use,” extends the prohibited period for contributions from 3 months to 12 months and expands donor disclosure requirements for contributions made 12 months before a covered proceeding. Please contact your Nielsen Merksamer attorney for more updates on how these new laws affect your organization.

A Washington State Superior Court Judge ruled this week that a major social media company “intentionally violated Washington’s longstanding campaign finance law 822 times”. That law “requires ad sellers…to disclose the names and addresses of political ad buyers, the targets of such ads and the total number of views of each ad.” The state Attorney General had previously sued for violations in 2018, for which the company was fined and then agreed not to advertise political ads in the state. According to the ruling, the company “continued to knowingly display Washington Political Advertising on its platform…continued to solicit [these ads]…[and]was aware that its ‘ban’ would not, and did not, stop all such advertising from continuing to be displayed on its platform”. The social media company in question initially filed a challenge to the law, which the same judge dismissed last week. The Seattle Times has more coverage.

Reminder:

If you’re a registered lobbyist in New York City, you or an employee must complete a biannual Lobbying Bureau training program. If you have yet to satisfy the requirement, please contact our political reporting unit to for more information at compliance@nmgovlaw.com.

In Case You Missed It:

The Effects of Digital Fundraising’s Ubiquity: In an analysis piece, The New York Times reflects on what it calls “a race to the bottom to inflame a party’s own voters with the most intensity and frequency”, driven in large part by the tone of ubiquitous text and email political fundraising solicitations. The solicitations’ tone notwithstanding, they have had the effect of raising tens of millions of dollars for candidates with little chance of winning. As the Times notes, “candidates with no hope of winning are raising ungodly sums from online [individuals]…drawn to their flashy videos and clever slams. Such is particularly the case when said candidates are running against notably loathed” or controversial candidates. Yet, this phenomenon deprives that money to traditional political party apparatuses who can, arguably, use the money in a more centralized and “efficient” manner.
K-Street Anticipates Change in DC Power: In advance of this year’s forthcoming Congressional midterm elections, The Washington Post reports that Capitol hill lobbyist interests are anticipating a change in House control by hiring former staff to high-ranking Republicans. These new hires have “held briefings [for their new employers] and drafted memos for clients on what a Republican House would mean for them. And they’ve been shepherding clients to meet with Republican lawmakers and staffers who are likely to be in positions of power.” Additionally, “the likelihood that the House will flip has led companies to reach out to lobbying firms with [existing] strong House Republican ties”.

WEEK OF September 30, 2022

Latest Developments:

The Governor of California signed AB 1783, which, among other things, amends the Political Reform Act of 1974 to expand the definition of lobbyist “administrative action.” According to the legislative summary, while “[e]xisting law requires the Insurance Commissioner and the Director of the Department of Managed Health Care to approve certain transactions involving insurers and health care service plans, respectively…’administrative action’ now includes any decision or approval by the Insurance Commissioner or the Director of the Department of Managed Health Care under these provisions.”

The Securities and Exchange Commission fined four investment firms for violating federal pay-to-play rules, all of which were “five-figure civil penalties against four firms whose personnel made prohibited contributions of $1,000 or less, including a contribution of just $400.” The rule prohibits certain advisors who provide services to a state or local government entity from making a “political contribution to certain state or local government officials in the prior two years.” Notably, one commissioner questioned the public benefit achieved by these enforcement actions, and suggested that the SEC should consider ways of “better tailoring the rule… without hindering political engagement.” Mondaq provides more coverage.

Reminder:

On October 5 from 1- 2 PM ET, please join Nielsen Merksamer’s Joel Aurora and other practitioners and regulators for an ABA webinar titled, “Is the Tide on Campaign Finance Disclosure Quietly Shifting? A Look One Year After Americans for Prosperity v. Bonta.” This panel will discuss the state of nonprofit disclosure laws one year after Bonta, examining the outcome of challenges to campaign finances laws that were brought in the case’s aftermath and the surprising ways courts have applied the new Bonta standard of review in election law cases. Click here for more information and to sign up.

In Case You Missed It:

Laundering at the Spa: The Federal Election Commission refused to move forward on further investigation into a Florida spa that funneled campaign contributions to former President Trump for the Chinese government and other foreign moguls. The Miami Herald reports that Commission staff concludes laws were likely broken when spa owner Cindy Yang “over an 18-month period…published online ads targeting overseas clients — mostly from China — promoting Trump fundraisers as opportunities to mingle with the then-president, his family and other top Republicans.” Yang would then make the contributions in the name of friends. Commissioners who objected to further investigation cited the impending statute of limitations as not permitting sufficient time for a comprehensive interview. Additional FEC activity indicates that while this case for unique circumstances did not advance, investigating national cases remain a high and bipartisan priority.
Non-Profits May Proceed Unhindered in CA: The Governor of California vetoed SB 834, which would have authorized the state Franchise Tax Board to revoke the tax exempt status of state non-profits allegedly involved “treason, insurrection, and seditious conspiracy, as provided” in federal law. The Sacramento Bee quoted the bill’s author as having the January 6, 2021 capitol riots in mind. Indeed, a legislative analysis “estimated California would spend $754,000 during fiscal year 2022-2023 and $1.1 million during fiscal year 2023-2024 and in subsequent years to investigate nonprofits” for these violations. The governor noted in his veto message that issue related to revoking non-profit status for these allegations, “are issues that should be evaluated through the judicial system with due process and a right to a hearing.”

WEEK OF September 23, 2022

Latest Developments:

The United States Senate defeated S 443, otherwise known as the so-called “DISCLOSE Act” on a 49-49 party-line vote. The Act would have “provide[d] for additional disclosure requirements for corporations, labor organizations, Super PACs and other entities.” According to the lead sponsor, it would also contain “a ‘stand by your ad’ provision requiring…organizations to identify those behind political ads – including disclosing…top five funders at the end of television ads.” The Washington Post reports more.
The Governor of California signed AB 2127, which authorizes digitally signed reports, including lobby reports, to the Secretary of State (SOS) to be accepted via email and not require an additional paper filing to serve as the true and original copy. The bill is meant to provide a solution while the SOS office develops a new e-filing system. The CA Fair Political Practices website provides additional guidance for digital signatures.

Reminder:

Lobbying in New York State? Like many jurisdictions, New York requires lobbyists to attend ethics trainings, and NY State changed its training process earlier this year. Instead of logging in through the old online portal, the new Commission on Ethics and Lobbying in Government has released a slide deck on their website that lobbyists need to review before signing an affirmation form. Lobbyists who complete the course via the online portal this year will still be credited for completion, but the state recommends using the new training slides and affirmation form if there are any issues with the online portal. https://ethics.ny.gov/ethics-lobbyists-training

Reminder:

On October 5 from 1- 2 PM ET, please join Nielsen Merksamer’s Joel Aurora and other practitioners for an ABA webinar titled, “Is the Tide on Campaign Finance Disclosure Quietly Shifting? A Look One Year After Americans for Prosperity v. Bonta.” This panel will discuss the state of nonprofit disclosure laws one year after Bonta, examining the outcome of challenges to campaign finances laws that were brought in the case’s aftermath and the surprising ways courts have applied the new Bonta standard of review in election law cases. Click here for more information and to sign up.

In Case You Missed It:

“Frank(ed)” Communication in Congressional Ads: The Hill reports on a growing trend of sitting members of Congress taking advantage of the long-standing practice of “franked communications” (by which Congressmembers officially connect with their constituents by mailers, television/radio ads, and even the internet) in their reelection bids. While taxpayer funded franked communications are part of a long-standing practice of constituent communication, a rule change at the end of the last Congress moves the blackout for these communications to 60 days before an election, down from 90 days. Now, voters are seeing scores of television, social media, and internet ads which are strikingly similar to campaign commercials, often touting an incumbent’s accomplishments on the most salient electoral issues. Critics contend “[it] giv[es] incumbent members an advantage in elections on the taxpayers’ dime,” while others note that a bipartisan commission reviews all communications.
Nonprofits Also Have Public Contract Ethics Concerns: According to the Los Angeles Times, a public corruption probe concerning Pay-2-Play and favoritism issues in awarding contracts has been taken over by the California Department of Justice in an effort to avoid political controversy between the elected Sheriff and the subject of the investigation, Supervisor Sheila Kuehl. According to the Times, Kuehl allegedly funneled “contracts worth more than $800,000” to an anti- domestic violence non-profit run by her friend and used her influence to extend the contract “without a competitive bid or analysis…[even though] the hotline [the non-profit was commission to develop] was a ‘complete failure’”. Additionally, facts presented to the court “detail campaign contributions Kuehl received from [the director of the nonprofit] and others associated with the nonprofit, alleging that ‘the donations can be seen as having been given for payment in return for the future awarding of the’ hotline contracts.”

WEEK OF September 15, 2022

Latest Developments:

The United States Department of Justice indicted a Hawaii businessman developer as well the Maui County official he allegedly bribed with over $2 million in exchange for favoritism with government contracts. The DOJ contends that the official “accepted bribes… comprised of cash, bank deposits, casino chips, travel benefits, and/or other gifts…in exchange for [his] agreement, in his official capacity as a Maui County official…to steer and award over $19 million dollars in sole source contracts and purchase orders to [the developer’s] company.” The Washington Post and Maui Now provide more details.
The City of Anaheim, California approved new lobbyist regulations which seek to address many of the issues that enabled the ongoing scandal surrounding its former mayor and a Major League Baseball team. Among the changes include making it a criminal misdemeanor, punishable by jail time, to report false information or omit information on a lobbyist report. The Orange County Register details more in its coverage.

Reminder:

Nielsen Merksamer invites you to join our PLI Post-Conference Briefing. We will share the top take-aways from the conference to help guide your campaign finance, lobbying disclosure and government ethics compliance programs in the year ahead. We will provide topics and ask for your feedback in emails leading to our workshop. For more information, please contact agibbons@nmgovlaw.com for details and RSVP.

The full PLI conference can be viewed on-demand here

In Case You Missed It:

Will the FEC let a PAC be a PAC? Politico reports that a political action committee seeking to cajole Florida Governor Ron DeSantis into a 2024 presidential run faces an uncertain future before the Federal Elections Commission. Earlier this year, the PAC asked the FEC to approve its plan to give its list of supporters to the governor for free and the Commission, this week, appears to have deadlocked, “vot[ing]… to reject a draft advisory opinion that would have explicitly” permitted this gift. Still, it “split 3-3 along partisan lines on another draft advisory opinion that says the PAC cannot provide the names and contact information to DeSantis at any point.” The PAC argues that a list of supporters does not have the same value as a list of donors and Politico reports that the FEC may address the issue in a future opinion.
Direct Democracy Discouraged: Politico reports on a trend of increasing GOP efforts to curtail ballot initiatives in certain states. The move come in the wake of recent progressive wins in which “initiatives have been used to legalize marijuana, expand Medicaid, create independent redistricting commissions and raise the minimum wage.” This year, Arizona is poised to raise its threshold for tax related matters to 60% and Arkansas is seeking to “apply [a 60% threshold] to constitutional amendments and citizen-initiated state statutes on any subject matter.” Recently, Florida limited ballot initiative fundraising, Nebraska tightened regulations on signature gathering, and half a dozen other states are considering tighter restrictions on their respective initiative processes.

WEEK OF September 9, 2022

Latest Developments:

A US Federal District court convicted former Atlanta city official Mitzi Bickers in the latest development of a pay-to-play scandal which also ensnarled two city contractors and the former mayor. The DOJ alleged that “Bickers sold sensitive, non-public information to…[two contractors] that was critical to their ability to obtain certain valuable contracts.” The contractors then funneled money to Bickers by paying her cash “up-front” to secure a contract and also paid “’kick-backs,’ where Bickers instructed…[the contractors] to inflate the cost of their work with the City so that…[they] could then pay Bickers a percentage of what they earned.” The implicated contractors previously pleaded guilty to bribery and money laundering and were sentenced to prison terms

A Washington State Superior Court Judge ruled that a prominent social networking company failed to adequately comply with state political advertisement disclosure law.The law in question “requires campaign advertisers, including entities….that host political ads, to make information about Washington political ads that run on their platforms available for public inspection in a timely manner.” The court agreed that the platform committed hundreds of violations since 2018 and faces fines of up to $10,000 per violation, or up to three times that amount if intentional.
A US District Court in Indiana approved the sentencing for a former Delaware County contractor who entered into plea bargain in June. The contractor bribed a local party officer and funneled money to a sanitary district official “to illegally contribute to [a former mayor’s] campaign”, for favorable consideration for public contracts. The judge “ordered…[the contractor] to pay $104,750 in restitution to the…sanitation district. In lieu of a prison sentence, he’ll spend two years on probation.” Local media provides more details.

Reminder:

In Case You Missed It:

FEC Says “Zuckerbucks” Not Campaign Contributions:The Washington Post reports on unanimous bipartisan votes the Federal Election Commission made last month rejecting complaints made against a tech mogul’s more than $400 million contributions to local jurisdictions ostensibly made to improve voting infrastructure and turnout in 2020. The contributions had become controversial, with numerous objections claiming that the donations constituted excess contributions and even a “failure to register as a political committee” which favored one party’s turnout over another. These arguments were rejected, with representatives for the tech mogul contending that these contributions “were made in full compliance with the law to…ensure that residents could vote regardless of their party or candidate preference.”
Can Federal Criminals Lobby in Massachusetts?: The Massachusetts Supreme Judicial Court considered this week a Commonwealth law that prohibits former officials from registering as state lobbyists for ten years if they were convicted of a state Courthouse News Service reports that the case involves former state House speaker Salvatore DeMasi who, in 2011, was convicted in federal court for accepting bribes and subsequently served a prison sentence. When DeMasi attempted to register as a lobbyist afterward, his filing was rejected given his conviction—a decision that DeMasi challenged. However, the trial court ruled against the denial, “[b]ecause the statute discusses state convictions only…[finding that] a federal corruption conviction does not prevent a former official” convicted of a federal crime from lobbying.” The case notwithstanding, DeMasi successfully registered as a lobbyist last year given that the 10-year period in question lapsed.
Grand Canyon State Considers Disclosure Referendum: Local media reports that a ballot initiative requiring independent expenditure committees disclosure of true source of funds will appear on the November ballot. If approved, it “would require that anyone making independent expenditures of more than $50,000 on a statewide campaign or $25,000 on a local campaign disclose the names of the “money’s original sources.” The initiative defines “‘original source’ as the person or business who earned the money that was contributed.”

WEEK OF September 2, 2022

Latest Developments:

The Attorney General of the United States released a memorandum concerning new restrictions on political activities of non-career department employees. The memo provides these employees with new admonishments, cautioning that they “may not participate in any partisan political event in any capacity…both public and non-public partisan political events.” The rules also rescind exceptions for participation in these events when an employee’s spouse pursues public office or on “the evening of election day.” More in Politico.

A Federal District Court in Puerto Rico proceeded this week with the prosecution of a Venezuelan national and financier who bribed Puerto Rico officials, promising major campaign donations in exchange for public personnel changes. The indictment claims that “from December 2019 through June 2020, then-Governor of Puerto Rico Wanda Vazquez…allegedly engaged in a bribery scheme with [the financier]…to finance [Vazquez’s] 2020 gubernatorial election campaign. Bloomberg provides further details.

Reminder:

The Practising Law Institute presents the annual Corporate Political Activities Conference on September 8-9, 2022 in Washington, D.C. The conference is also hybrid online and on-demand, so it may also be viewed in segments. To sign up, use the following link: PLI Two-Day Conference in Washington D.C.

In Case You Missed It:

Colorado Springs Forward: The Colorado Springs Gazette reports that a local civic nonprofit will have to appear before state administrative courts for making outsized donations to two county candidates violating the state’s ban on corporate contributions to candidates. The Secretary of State office refused to dismiss the complaint even though a state inquiry “found the violation was cured” when the candidates returned the contributions. Oneissue is “the implication of quid-pro-quo corruption between the nonprofit corporation and the candidates…[as] the signatory of the contribution check operates a museum that received $500,000 in federal coronavirus pandemic relief funds through El Paso County four months before…[the] campaign donations from the nonprofit were issued.” The Secretary of State’s office found a defense that the mistake “by volunteers” was unintentional “not plausible,” noting other political activity by the nonprofit and affiliates.
California’s Campaign Debt Conundrum: The Voice of San Diego reports that the city of Chula Vista has gained little traction in the year after its council voted unanimously to address a major campaign finance lacuna. The issue concerns “campaign debt…when candidates… spend more than they raise in donations, and the difference is listed on disclosure reports as an accrued expense — essentially a credit.” Then, once victorious candidates “secure a position of influence…[they] go back out and raise more money.” Chula Vista law “doesn’t offer a timeline for when those bills are due…these costs of campaign goods and services become donations, subject to a $360 per person cap, if they’re not paid upfront.” The issue has manifested half a dozen times over the last decade, with allegations certain victorious officials soliciting debt repayment contributions from entities who have business with the city.
A Dummy Contribution to a Ghost Candidate: Local media in Orlando, Florida recounts the criminal court proceedings of former GOP county chair Ben Paris who made prohibited donations to a spoiler candidate allegedly fielded to siphon votes away from the opposing party candidate. The scheme was successful in narrowly electing Paris’s former boss, but the trial concerns Paris skirting individual campaign limits by making a contribution in the name of his cousin.

WEEK OF August 26, 2022

Latest Developments:

The US Department of Justice arrested the former speaker of the Tennessee state House of Representatives Glen Casada as part of a larger corruption probe involving other legislators. PBS reports that Casada and a top aid stand accused of “exploit[ing] their positions of power by working with another unnamed lawmaker to funnel money to themselves using a political consulting firm that concealed their involvement… by submitting sham invoices to the State of Tennessee in the names of political consulting companies owned by Casada.” They face up to 20 years of prison.
A Federal Court in San Francisco proceeded this week with the sentencing of that City’s former Public Works Director Mohammed Nuru on bribery and corruption. Local media reports that Nuru was accused of “accepting more than $1 million of bribes over 12 years to steer city contracts to his friends. Also charged in the case — developers, contractors, a restaurant owner, two recology executives, and Nuru’s girlfriend, the former director of the Mayor’s Office of Neighborhood Services.” At the proceedings, the “prosecution ask[ed] for a 9-year prison sentence; the defense wants three years.” The scandal is notable for its wide reach in the San Francisco business and political establishment, ensnaring even the mayor.
The New York State Board of Elections settled a campaign finance violation with the committee for New York Republican state senators and agreed to a $200,000 settlement related to “housekeeping” accounts, according to the Olean Times Herald. As a general matter, state law caps corporate contributions to $5,000, making housekeeping accounts a popular recipient of support by the regulated community. The committee was accused of having improperly used its housekeeping account funds during “the 2016 election by issuing a series of campaign-style mailers that allegedly crossed a line into expressly seeking election of GOP candidates… a[A] housekeeping account is supposed to be used to maintain a ‘permanent headquarters and staff’ for ‘ordinary’ party activities.” Contributions to the housekeeping accounts are otherwise uncapped. The state enforcement agents “pursued the case under the theory that — because Senate Republicans used the housekeeping account for campaigning — donations to the housekeeping fund in 2016 should be counted as contributions to the campaign account.” Contributors in this settlement were not directly impacted. The settlement has not yet been provided to the public.

Reminder:

The Practising Law Institute presents the annual Corporate Political Activities Conference on September 8-9, 2022 in Washington, D.C. The program comprehensively covers federal and national campaign finance, government ethics and lobbying disclosure laws, including panels on nonprofits (day one), compliance best practices (day two), government contracting, and several focused on state and local issues. Nielsen Merksamer’s Jason Kaune co-chairs the conference and Elli Abdoli participates as expert faculty. The conference is also hybrid online and on-demand, so it may also be viewed in segments. To sign up, use the following link: PLI Two-Day Conference in Washington D.C.

In Case You Missed It:

The Anaheim Saga Continues…: The Anaheim City Council voted 4-2 to issue a response to the June grand jury report about the sale of the Angel’s stadium, a scandal currently embroiling that city. The response specifically pushes back on many of the report’s findings and recommendations for future ethics reforms. According to Epoch Times, for example, “Anaheim disagreed that it violated the ‘spirit’ of California’s Brown Act, an open meeting law that addresses, among other actions, how city councils can discuss real estate negotiations and payments,” arguing that all requirements were satisfied. Notably, it also differed with the report’s assessment that it was improper to appoint the former mayor (who resigned after being caught up himself in the stadium scandal) to the committee negotiating the sale and to then suggest adding more city council members to future similar committees. The response argues that “[a]dding more elected officials would further politicize the matter.”
Is “WinRed” in the Red?: Open Secrets reports on an FEC complaint filed against Republican affiliated contribution processing platform WinRed. The complainant, the Campaign Legal Center, allege that the company greatly underreported its operational costs relative to the political contributions they processed, disclosing “less than $2,700 in operating expenses since January 2019 despite processing over $2.8 billion in earmarked contributions – and $212 million in contribution refunds – during that period.” Good government groups claim that “[i]t is ‘virtually impossible’ that WinRed processed billions of dollars in contributions without incurring substantial administrative costs.” Further, they “did not disclose receiving any free goods or services as ‘in-kind’ contributions…[whereas] ActBlue [their Democrat equivalent] disclosed over $4.7 million to its affiliated company.”

WEEK OF August 19, 2022

Latest Developments:

The Federal Elections Commission advised a tech giant with a ubiquitous email platform “that a proposed pilot program allowing political campaigns to evade automated spam detection would not violate federal campaign finance law.” The Washington Post reports that the 6-month trial was proposed after conservative groups complained that their campaign and fundraising emails were disproportionately being sent to Spam folders, according to one public university study. While one Democrat was joined by three Republicans on the Commission in approving the program, one Democrat abstained and another voted against the program, arguing “that such a program would represent a prohibited in-kind contribution.”
The Los Angeles Ethics Commission unanimously imposed an almost $80,000 fine on a former city councilman in yet another Southern California scandal. Some five years ago, according to the Los Angeles Times, then City Councilman Mitchell Englander attended a Las Vegas excursion with businessman and other council staffers, with paid accommodations, free alcohol, and a gratuity of $10,000 in cash. In 2020, Englander previously “agreed to plead guilty to a single felony count of scheming to falsify material facts,” after having been charged with other violations of federal law. Investigators for the committee argued that “[t]he violations are serious because the monetary value of the gifts received significantly exceeded the gift limit, because of the nature of the gifts, and the circumstances in which they were received.”

The Miami-Dade County Commission on Ethics and Public Trust released a notice explaining its lobbyist reporting enforcement in the coming months. In 2021, the county approved changes to its lobbyist registration and reporting requirements that calls for significantly more disclosure for both lobbyists and lobbyist employers. While they simultaneously developed an electronic filing system, “the development of the technology has encountered some issues and has not caught up with the legislative changes.” In light of these technological shortcomings, the Commission’s notice informed the regulated community that it “will be exercising a significant amount of discretion and will be receptive to lobbyists appeals and deferring on enforcement actions”. According to the bulletin, grace periods will be extended and fines for late filing may be waived if appealed by September 1^st.

In Case You Missed It:

Citizens United More than a Decade On: The Wall Street Journal opines on predictions of the effects, more than ten years on, that the Citizens United vs. FEC SCOTUS decision would have on government policy and other areas of corporate interest. The Journal incorporates the outcomes derived from a study of three academics affiliated with the University of California and terms those predictions “a canard.” The study focused on the trajectory of state tax policy—recognized as an area of acute interest for the corporations making political contributions. It found that, in the 23 states which had their bans on contributions effectively nullified by the decision, “the study was not able to identify economically or statistically significant effects of corporate independent expenditures on state tax policy, including tax rates, discretionary tax breaks, and tax revenues.” The Journal concludes that “[i]f billionaires were able to buy elections to lower state taxes, you’d think they would have done it by now.”
What’s Going on in SoCal?: The Anaheim City Council voted unanimously (with one abstention) to contract “an outside firm… to investigate any questionable campaign contributions made to former…or current councilmembers in the wake of a federal corruption probe tied to the proposed sale of Angel Stadium.” The Los Angeles Times relates that the investigation, which will be handled by the JL Group and headed by a retired judge, takes place amidst the ongoing federal probe into ethical lapses by multiple officials and with municipal elections only a few months away. As reported, “it was the firm’s lack of ties to the city or officials that seemed to sway the City Council in choosing the JL Group over three other companies bidding to conduct the investigation…Councilmembers said they hoped the investigation would offer residents transparency.”

Age is Just a Number: Mercury News reports on a newly proposed rule change from the California Fair Political Practices Commission regarding the minimum age of campaign treasurers. The proposal stems from a fine the Commission imposed in May on San Jose City Councilman who “hired his teenage [14 year old!] cousin for his 2016 campaign committee…giv[ing] his cousin $43,000 in cash…[which] was later misreported on campaign disclosures.” The rule “would prohibit minors from serving in key positions if they are required by their position to sign campaign finance documents under penalty of perjury…It would apply to all political committees…[including] local councilmember races.” Critics contend that “it sends a chilling effect to young campaigns.”

Central Valley Campaign Crimes: Defeated U.S. Rep. T.J. Cox of California was arrested this week on a serious of federal charges, including campaign finance violations related to his Congressional campaigns. According to CNN, Cox “set up a plan to fund and reimburse donations to his 2018 congressional campaign from friends and family members, according to the indictment…[which]totaled more than $25,000.” He also “allegedly created off-the-book bank accounts and took funds from companies with which he was affiliated…obtain[ing] over $1.7 million.” Cox plead not guilty to “15 counts of wire fraud, 11 counts of money laundering, one count of financial institution fraud and one count of campaign contribution fraud.”

WEEK OF August 12, 2022

Latest Developments:

The US DOJ Office of Government Ethics released a report detailing the finding of “its annual survey of prosecutions involving the conflict of interest criminal statutes…and other related statutes for calendar year 2021.” According to FedWeek, [t]he cited cases primarily involved charges of conflict of interests arising from bribery but also involved issues of improper supplementation of salary, false statements, unauthorized representation of claims against the government…among others.” The OGE hopes that the survey will serve as “a useful resource ethics officials can use to educate employees about how these laws apply in real-world situations.”
The Missouri Ethics Commission published guidance on the particulars of the regulations allowing certain corporations to directly make campaign contributions in anticipation of changes in statute which will become effective August 28^th. The changes allow LLCs in operation for more than a year to directly make contributions if they “indicate that…[they are] a legitimate business with a legitimate business interest and…not created for the sole purpose of making campaign contributions.” As the Louis Post-Dispatch reports, the changes come some four years “after former Gov. Eric Greitens was investigated for using ‘shell companies’ to bankroll his 2016 campaign for governor… [with investigations] suggesting that the…governor’s campaign worked to conceal the identity of donors.” The statutory change was approved by the current governor as HB 2400.

In Case You Missed It:

Lawmakers Want More Federal Contractor Disclosure: Some 65 members of Congress singed a letter to President Joe Biden urging him to tighten reporting and other regulatory burdens for federal contractors. According to FCW, the signatories are “calling for an executive order that would mandate political spending disclosures for large federal contractors, many of which spend millions on political action committees during election cycles to get around federal laws barring contractors from making political expenditures.” In response, the organization which represents many federal contractors retorted that, “[i]n addition to providing no new information, the proposed reporting would slow down a contracting process that is already too slow in meeting government needs today and might actually undermine trust rather than increase it.”

“Gold Clubs” aren’t Just for Flying: Politico reports on the emerging trend of so-called “gold clubs”: elite and expensive places where lobbyists are promised intimate and fancy settings with lawmakers and which carry a corresponding price tag. The so-called clubs are, in fact, access to a “bundle” of campaign events, where attendance is capped in the dozens and facetime with top officials is almost a given, allowing lobbyists “the opportunity to develop almost a familial relationship with him or her over a series of them.” The phenomenon is meant to preference individual donors over PAC donations and lawmakers term their donors with such euphemisms as “kitchen cabinet” or “season pass” holders. Critics contend that, while similar concepts have existed for some time, their current popularity “offer[s] a way for campaigns to lock in significant donations from individuals amid an insatiable need to raise money.”
Who’s Picking up the Tab?: A discreet and undisclosed extravagant soiree between Pennsylvania legislators and lobbyists has garnered attention from local media and is leaving watchdog groups wondering who might be covering the bill. The Pittsburg Post-Gazette provides details on the invitation-only gathering of a group of Keystone state lawmakers to which lobbyists were invited to provide various levels of sponsorship, which, under state law, went unreported. Watchdog groups lament that the event underscores that “Pennsylvania is among a minority of states that places no limits on the value of gifts special interests can give legislators…[and that] the Legislature has blocked nearly every effort to limit the ability of special interests to shower lawmakers with dinners, drinks and travel” or otherwise enhance reporting requirements.

WEEK OF August 5, 2022

Latest Developments:

A District Court Judge in Alaska dismissed a lawsuit “request[ing] to block campaign finance provisions of a ballot measure approved by Alaska voters in 2020, finding that the plaintiffs had not demonstrated a likelihood of success on their outlined claims.” The Anchorage Daily News reports that the challenged provisions concerned independent expenditure groups and includes “disclosure rules [the plaintiffs claim] are unconstitutional and burdensome…[such as] disclaimers required for ads and required reporting around contributions greater than $2,000 that are given to or received by independent expenditure groups.” The court noted that precedent establishes that “lower federal courts should ordinarily not alter … election rules on the eve of an election.” The decision is Smith et al v. Helzer et al.
The Texas Ethics Commission’s servers crashed upon receiving the campaign finance reports from a prominent gubernatorial candidate, although “the commission’s system [still] successfully processed approximately 3,500 such reports due” by the deadline. The Texas Signal reports that the commission attributes the failure to the submitted file’s size and has requested more than $700,000 in additional appropriations “to upgrade their dated equipment…warning that their servers will likely crash again in October, when reports are due.” No indication was given that other filings from PACs—or the regulated community generally—were affected.
The League of Women Voters filed a lawsuit against the city of Cupertino, CA over what it termed “[an] ‘overly broad and vague’ [lobby]…ordinance. [T]he League decided to take action because [as they argue] the law stifles watchdog groups from speaking out at public meetings.” According to the San Jose Mercury News, the confusion surrounding the law, passed in 2021, stems from the possibility that “nonprofits [and their board members and employees] can still be subject to ordinance if they’re lobbying for a ‘specific project, issue or person’ and have received monetary compensation for it.” The League maintains that this possibility threatens their rights to speech and association.

In Case You Missed It:

PAC Money Not Being Spent on Campaigns: After an eminent journalist withdrew from the Oregon gubernatorial race due to the state’s strict residency requirements, he transferred his nearly one million dollars in campaign funds to a PAC headed by his wife. What is rather unique and interest about this move, as Oregon Public Broadcasting reports, is the use of the funds, which are entirely unrelated to any electoral or campaign finance purposes. As OPB writes, “the financial shift was a way [for the candidate] to distance himself from the money while still working on his plan for spending it: He wants to create an innovative loan program to help Oregonians pay for job training.”
Verbosely Under Reporting: Watchdog groups are criticizing U.S. House candidate Royce White’s quarterly finance report for including dense explanations yet simultaneously obscuring true sources of donations and questionable expenditures. Heartland Signal reports that “the White campaign’s report was ‘unusually specific, listing every cup of coffee bought while on the campaign trail… [and yet still] does little to clarify where White’s campaign is spending its money.’” The group Public Citizen criticizes the campaign’s reports for using cryptic shorthand for expenditures and a flurry of end of quarter transfers [which are] often “use[d] to cloak the original source of funds, such as from corporations or foreign principals.”

WEEK OF July 29, 2022

Latest Developments:

The Federal Elections Commission met on July 28^th. Among its notable action items was an advice letter concerning the often-nebulous regulations governing so-called nonconnected committees. The question involved whether the inclusion of two Members of Congress on the board of Hispanic Leadership Trust (HLT) rendered the HLT a leadership PAC or otherwise affiliated HLT with those two Members’ leadership PACs. There was also an inquiry as to whether any of HLT’s “bylaw provisions governing its officers’ fundraising activities would allow it to remain unaffiliated with those officers’ leadership PACs.” The Commission concluded that “HLT would not be a leadership PAC” under those conditions, “assuming that no Member of Congress or current candidate for federal office represents more than 33% of the seats required for a quorum of HLT’s board of directors.”
The Alabama Secretary of State Office issued several clarifications regarding its 2022 Federal PAC reporting requirements. Most importantly, the “updated guidelines provide that all PACs that raise or spend money to influence an election for a state or local office, including federal PACs… must [still] register and file” with the state.

Reminder:

Basics of the Federal Election Campaign Act 2022: The Pracitising Law Institute (PLI) will conduct, in just one hour, a briefing of federal candidate and PAC campaign law, as regulated by the Federal Election Campaign Act (FECA). It is available in-person and online. Featuring Nielsen Merksamer’s Jason Kaune! You may register here.

In Case You Missed It:

Keeping the Lights on in the Sunshine State: The Orlando Sentinel reports on an unfolding scandal involving Florida Power and Light (FPL), the nation’s largest electricity provider. Regarding one state legislator who proposed a bill that would affect FPL’s profits, a leaked email quoted the CEO directing his vice presidents “to make his life a living hell…. seriously.” Soon after, an affiliated consulting firm recruited a candidate with the same last name to challenge the legislator and split the vote in his primary. The legislator lost and the stealth “candidate later admitted he was bribed to run.” According to the Sentinel, the incident is one of many which “illustrates the political obstacles policymakers and experts face as they attempt to cut climate pollution from the power sector…[and exposes] decades of extensive influence-peddling on behalf of utility clients.”
Public Financing No More on Long Island: Local media reports that the Suffolk County (New York ) legislature overrode the county executive’s veto of that jurisdiction’s public campaign financing system approved last month. The County executive called it “a step backwards,” citing the potential to exclude disadvantaged groups and to create conflicts of interest. Legislatures in favor of repeal claimed that they “would rather use the program’s $2.6 million on public safety” and that potential conflicts with campaign contributors could be resolved by recusals on a case-by-case basis.

Beaver State Updates: The Oregon Government Ethics Commission (OGEC) released its quarterly newsletter, highlighting their conflict of interest and gift policies. Among its pertinent updates is news of the resignation of Robert Johnson, a commissioner who only joined the OGEC in 2021. His departure was precipitated by his election as a judge last month. While “OGEC Commissioners are allowed to serve on multiple boards or agencies…they cannot be a part of both the Judicial and Executive branches of government at the same time.”

WEEK OF July 22, 2022

Latest Developments:

The California Fair Political Practices Commission met on July 21^st and decided several pending matters. Notably, the Commission adopted a regulation to “repeal the existing prohibition on cryptocurrency campaign contributions…and [which] permit[s] the making of contributions with cryptocurrency though a payment processor.” The Associated Press notes that “California had been one of nine states that prohibited cryptocurrency contributions. Twelve states, plus Washington D.C., allow cryptocurrency contributions in some form.”

The City of Brentwood, California will enact municipal campaign finance limits. The Press reports that the City Council voted unanimously on two ordinances which would limit contributions to “$500 per contributor per candidate…[and] also use $25,000 of the general fund in order to enforce the proposed limits.” The limits take effect at once under an emergency ordinance. As detailed in previous blogs, a change in California law requires localities to adopt their own limits or default to state limits.

In Case You Missed It:

Build Back K-Street: Politico details the “boom” in federal lobbying activity and spending as negotiations continue on ambitious legislation packages. Recently filed second quarter disclosures released just this week reveal that “[b]usiness on K Street remained white hot…with many firms only building on the record-breaking lobbying revenues they saw over the same period a year ago” when a multi-trillion legislation package was under consideration. Of note, only two of the top twenty firms disclosed a dip in fees from the previous quarter and eight firms experienced revenue growth of at least ten percent.
Sunshine on Using PACs for Legal Bills: The Tallahassee Democrat reports on the curious, though not unprecedented, phenomenon of Political Action Committees using funds ostensibly raised for campaign contribution bundling to cover ex-candidates’ criminal defense expenses. In the case of the unsuccessful 2018 Florida gubernatorial candidate Andrew Gillum, the PAC that spent lavishly on his campaign and is at the center of his alleged ethics violations is now spending hundreds of thousands on his legal defense. Gillum and an advisor “were indicted in June…[for] wire fraud and conspiracy to commit mail fraud for allegedly funneling campaign donations into their own bank accounts.” By 2020, the PAC in question “spent more than $700,000 on legal expenses related to the FBI probe” and recently paid Gillum’s lawyers another $440,181.
Campaign Finance Overhaul Stalled in Anaheim: The ethically beleaguered City of Anaheim failed to pass campaign finance reform measures at its City Council meeting last week. Voice of OC reports that multiple proposals surfaced for addressing the multi-layered Orange County scandals that have emerged this year. The Council reached consensus in June for a proposal that would “require donor-related vote recusals if the money came from a PAC…[and place] restrictions on campaign debt, an issue…tied to some of the bribery and quid-pro-quo schemes alleged by the FBI.” The council still deadlocked on the “tamer version” proposed this month which did not contain these provisions.

WEEK OF July 15, 2022

Latest Developments:

The Governor of Missouri signed HB 2400, which will take effect at the end of August. Notably, the bill “prohibit[s] public agencies from disclosing or requiring the disclosure of personal information” from individuals, non-profit organizations and “current or prospective contractor[s].” Additionally, the bill also permits…limited liability compan[ies] that have been in existence for over one year…to make campaign contributions” provided they comply with state campaign disclosure requirements.
The California Fair Political Practices Commission, at its July 21^st meeting, will address In the Matter of Andrew Do. Do, an Orange County Supervisor and director of CalOptima, allegedly “violated pay-to-play restrictions…when…[he used his] official position to influence governmental contracting decisions involving a participant who contributed to [his] campaign.” Additionally, “Do also failed to timely file behested payment reports disclosing eight payments totaling approximately $110,440.”
The City of Philadelphia enacted Bill No. 220049, which makes several city-level campaign finance changes. Among the notable changes, the law prohibits “a campaign… [from] making any expenditures related to a covered election through any other person or vendor.” The bill clarifies that “incidental” expenditures a vendor incurs will not count toward contribution limits.

In Case You Missed It:

How Close is Too Close?: Politico covers internal executive branch concerns regarding a recent video in which President Joe Biden gave “a straight-to-camera endorsement…[for businessman Eric] Schmidt’s “Quad Fellowship”— a new scholarship for American, Indian, Japanese and Australian graduate school students that is operated and administered by…the charity arm that Schmidt uses for a variety of initiatives in science and technology.” The endorsement highlights financial ties Schmidt has with Biden administration. Politico previously reported on the allocation of hundreds of billions of dollars in federal high-tech investments.

Election Law Shakeup Further Down the West Coast: In the past, we detailed the changes to Seattle’s campaign finance laws, including its public funding provisions. Now, some 800 miles south in Oakland, local media reports on impending efforts to introduce similar changes in that city. On July 11^th, the “City Council voted to place both the council term limits measure and the ‘democracy dollars’ measure on the Nov. 8 general election ballot.” According to the San Francisco Chronicle, “the measure would give every Oakland adult…$100 in vouchers to use in elections supporting a candidate in city or school board elections.” The Seattle program inspired this measure; like that program, the vouchers are available to all adult residents, regardless of voter registration status and city candidates must field a larger base of small donors before becoming eligible for the vouchers.

Hawaii Prosecutors Want Sharper Tools: Following high profile corruption federal level investigations into state and local Hawaii officials, county prosecutors throughout the state suggested harsher penalties for public officials who betray public trust. Honolulu Civil Beat reports that the prosecutors’ recommendation was part of a forum this week before “The Commission to Improve Standards of Conduct, a group tasked with beefing up government standards and ethics…[whose] hours-long forum [was intended] to generate more ideas to crack down on public corruption in Hawaii.”.

WEEK OF July 8, 2022

Latest Developments:

The Ninth Circuit Court of Appeals decided Butcher V Knudsen, ruling that Montana’s campaign finance restrictions are “unconstitutionally vague” as applied to the defendants. The case concerns two retired and politically involved men who ran a website that tracked Republican legislators’ voting records. When they were invited by Republican leaders to speak about their work and paid for their own travel expenses, the state’s “Commissioner of Political Practices determined that…[they] had formed a ‘political committee’ under Montana law” and subsequently imposed a civil fine. The Court found that the defendants “engaged in core political speech that lies at the heart of the First Amendment…[and that] insufficiently defined legal regimes can discourage valuable speech and invite unbalanced government regulation of less popular views.”
The State of New York, effective July 8^th, has a new ethics agency, the Commission on Ethics and Lobbying in Government, which replaces the now defunct Joint Commission on Public Ethics (JCOPE). Part of a January 2022 budget bill formed the new commission, which seeks to avoid the pitfalls of the predecessor agency and provides that law school deans and other ethics experts attest to the integrity of commission appointees. As JD Supra reports, JCOPE was heavily panned as beholden to the officials who appointed them; the new commission seeks to address this criticism by reducing the number of appointees made by political officials and allowing the chair to be elected by commission members instead of “serv[ing] at the pleasure of the Governor.” Interestingly, “the new law does not alter, revoke, or rescind any regulations or advisory opinions issued by JCOPE that are currently in effect.”

In Case You Missed It:

IRS’s Non-Profit Expressway: The New York Times reports on a recently uncovered scam of fraudulent non-profit committees established and run by a convicted criminal. Prosecutors accuse Ian Hosang of embezzling
“about $152,000 in donations that flowed through 23 of his nonprofits. [Most problematically,] Mr. Hosang did not need to do much to promote the groups; the money came in through online giving platforms that let users choose among I.R.S.-approved charities.” That Hosang was sloppy makes the IRS oversights even more problematic. Analysts blame an expedited process the IRS implemented which streamlines approval and was meant to address persistent backlogs and accusations the agency was denying applications based on ideology. Indeed, under this process, “the denial rate for new charities — which had been as high as one in 53 applicants in the old system — fell to one in 2,400 in this one.”
Tart Orange County Cures: In the wake of the scandals plaguing Orange County and neighboring Anaheim, the county seat of Santa Ana is now considering a lobbyist registration and reporting ordinance of its own. The Los Angeles Times reports that the city “council unanimously gave initial approval to an ordinance that requires lobbyists to register with the city or face penalties… [arguing it will] ‘promote public confidence and trust, preserve the integrity of local government decision-making, and provide members of the community with access to information.’” While several steps remain until final passage, the mayor also commented that municipal campaign finance changes may be next.

JCOPE’s Coda: On the eve of its termination, New York’s now non-operational Joint Commission on Public Ethics released a report on the process leading up to its much-criticized approval of the former governor’s $5.1 million book contract. The report, according to local media, finds that the governor’s office exerted extreme pressure on JCOPE and that the agency “failed to assert itself as a watchdog agency against the Governor.” JCOPE revoked its approval for the book deal in November, after the governor left office. According to Politico, “the book deal became a priority in multiple investigations, including the Democratic-led Assembly impeachment inquiry that determined…[the former governor] used government resources to write it.”

Latest Developments:

WEEK OF July 1, 2022

The State of Tennessee will begin implementing Public Chapter 1087 which imposes, beginning July 1^st, “changes…for existing and new political action committees (PACs), candidates, and organizations tax-exempt under the IRS as 501(c)(4),(5), and (6)” with multiple effective dates until January, 2023. As JD Supra reports, the changes effective this month, include requiring “new multicandidate PACs, before conducting any financial activities…[to] certify the names and addresses of all officers and persons who ‘directly control campaign expenditures.’ Existing PACs must make the same certifications by January 31, 2023. Changes in officer makeup must be reported no later than thirty days after the change.”
The United States Department of Justice “presented a new policy at a Securities Industry and Financial Markets Association event that requires chief compliance officers (CCO) to certify that compliance programs have been ‘reasonably designed to prevent anti-corruption violations.’” As the National Law Review reports, the policy stems from a recent settlement of case involving a mining giant “after it pleaded guilty to bribery and market manipulation charges…[and] is meant to ensure that CCOs stay in the loop on potential company violations” which included Foreign Corrupt Practices Act violations. Still, concerns have been raised as to the exposure these officers may face to personal liability and that it may “undermine their authority by opening CCOs to internal pressure to execute a certification.”

In Case You Missed It:

Los Angeles Saga Continues: The Journal Record reports that a Los Angeles developer was found guilty of bribery, obstruction of justice, and wire fraud, gifting $500,000 to a city councilman and his assistant for special preferences. The case involved the developer seeking “help in resolving a labor issue involving [the developer’s] company’s planned construction of a large commercial and condominium complex in the city’s burgeoning downtown district. At the time, [the city councilman] chaired the city’s powerful Planning and Land Use Management Committee.” The developer could face up to 30 years in prison and the company may have a fine imposed as high as $1.5 million.
Anaheim Slammed: An Orange County, California grand jury heavily criticized the City of Anaheim, already ensnarled in a multi-layered scandal centered on its former mayor, for the process by which the Major League Baseball stadium was approved. As the Los Angles Times details, the grand jury said in its report that, “[t]he city council majority’s inappropriate handling of the stadium property transactions betrayed its constituents…demonstrat[ing] a persistent lack of transparency and rushed decision-making … exacerbating distrust by the public, state and local government officials, and even some members of its own city council.” Still, the city manager and mayor pro tem continue to back the stadium deal and maintain that their proceedings were transparent and in good faith, notwithstanding the previous mayor’s alleged improprieties.

Campaign Finance Reform on the Aloha Islands: We reported in recent weeks about state-level efforts to enact tougher government ethics regulations in the wake of high-profile arrests of officials for corruption. Now, the Honolulu Civil Beat details considerations the state is making regarding “a handful of measures aimed at tightening campaign finance laws and reducing the influence of money in politics.” This week, the Campaign Spending Commission proposed several reforms to the Commission to Improve Standards of Conduct. Among the most notable was to close “a loophole in the law still allows employees and officers of those companies [with government contracts] to continue making political donations.” An additional proposal “would put an end to a practice by state lawmakers that exploits a legal loophole allowing them to funnel campaign funds to their colleagues. [in which] some, particularly those with large war chests, often buy tickets to their colleagues’ fundraisers to get around the prohibition.”

WEEK OF June 24th, 2022

Latest Developments:

The United States District Court for the Northern District of Florida, in ACLU of Florida v. Byrd, permanently enjoined provisions of Florida’s SB 1890. That bill, passed last year, purported to limit contributions to ballot measures to $3,000 per person. A measure passed this year, HB 921, sought to limit the application of the $3,000 cap to nonresidents. The Court found that both measures violated the First Amendment, citing Citizens Against Rent Control/Coal. for Fair Hous. v. City of Berkeley. The ACLU issued a statement saying, among other things, “We are grateful that the state lost in its attempt to eradicate citizens’ initiatives from Florida.”
The New York Independent Review Committee for Nominations to the Commission on Ethics and Lobbying In Government (“IRC”) issued its Procedures for the evaluation of nominees to the new commission. The committee is composed of a group of New York law school deans, who are tasked with vetting candidates to serve on the state’s new Commission on Ethics and Lobbying in Government (CELIG). In announcing the procedures, the committee noted that “JCOPE sunsets and the new Commission takes effect on July 8, 2022.”

In Case You Missed It:

Campaign Finance Review: The Coalition for Integrity issued its State Campaign Finance Index 2022, which “analyzes the (campaign finance) laws of 50 states and the District of Columbia” and the agencies that enforce those laws. The Index examines “the millions of dollars flowing to state level campaigns.” The report considers “whether these agencies have investigative and enforcement authority, as well as laws that contain prohibitions on campaign coordination, limits on campaign contribution and disclosure of those contributions, requirements for transparency of funding of independent expenditures and political advertisements, and the availability of campaign finance information.” Washington State, California, and Maine came out at the top; Utah, South Dakota, and Indiana were ranked at the bottom.
Contributors Beware: Politico reports on the indictment of Andrew Gillum, former Mayor of Tallahassee and a one-time candidate for Governor. The charges allege that Gillum “illegally solicited campaign contributions between 2016 and 2019 and promised political favors in return for the financial support.” The article points out that federal agents apparently asked a Gillum aide about other donors, including “a founder and chief investment officer of a Connecticut-based hedge fund and major national Democratic donor.”
Reform on Hold: Following the Mayor’s resignation amid a federal corruption investigation, the Voice of OC reports that “Anaheim City Council members deadlocked on a campaign finance reform in an effort to lessen special interests’ influence on policy decisions… After a majority of the council debated the issue for hours – over the course of two city council meetings this month – council members deadlocked 3-3 late Tuesday night over an ordinance that would’ve required a 72-hour reporting window for all campaign contributions of $250 or more, along with mandatory recusal periods.”
Lobby Activity in 2021: Open Secrets issued a report on state and federal lobbying for calendar year 2021. One conclusion of the report is not a surprise: “Lobbying spending continues to grow at both the state and federal levels…” The report also contains a detailed analysis of spending by the pharmaceutical industry.

WEEK OF June 17th, 2022

Latest Developments:

The Governor of New Hampshire signed SB 348, which categorically permits contributions during a pre-declaration exploratory period, thus permitting contributions in 3 phases of an election cycle, which also includes the primary and general phases. The law takes effect January 1, 2023 and essentially places in statute the state Attorney General’s existing analysis of the state’s campaign finance laws.
The State of Vermont will enact a statewide code of ethics when SB 171 becomes effective July 1^st, applying to all elected and appointed state officers and employees. Among its provisions are a new conflict of interest policy applicable to members of all branches of state government, new gift limitations and exceptions, and post-government employment restrictions. Notably, the revolving door provisions for legislative branch employees prohibits them from “advocat[ing] for anyone other than the State, concerning any matter in which the State has a direct and substantial interest” before the legislature or their former office for one year after leaving public service.

In Case You Missed It:

Aloha to Ethics Reforms?: The Hawaii Tribune-Herald reports that, in the wake of two former state legislators pleading guilty to accepting bribes, state lawmakers have passed legislation aiming to increase campaign finance transparency and enforce government ethics. Yet, despite required ethics courses for legislators and ranked choice elections, critics still “lamented lawmakers” failure to ban all campaign fundraising during the legislative session. Instead, lawmakers passed a narrower measure that would prohibit holding fundraisers.” A former legislator “said [that] in his experience lawmakers raise most of their campaign funds not at fundraising events but by calling people and asking them for money…[and that] ‘a lot of the donors will have issues before the Legislature,’ [citing]… big business executives or major landowners as examples.”
JCOPE’s Swan Song: New York State’s soon to be defunct Joint Commission on Public Ethics (JCOPE) is still actively investigating a compliance attorney who was formerly a top government enforcement officer in the state and is now one of the agency’s largest detractors. The Albany Times Union reports that he formerly indicated that his experience in ethics enforcement could help clients limit disclosure, which he allegedly did for a lobbying coalition that spent more than $800,000 on an issue ad, but whose disclosures allegedly fell short of the agency’s regulations. He claims that he disclosed the entity’s activity according to the rules governing what JCOPE termed “coalitions” which he claims is merely “a mythical name that they created in regulations — one that serves to hide the identity of the members… By definition, that’s what a coalition is.” The agency seeks more than $4 million in fines, even as it is due to wind down in a month.
Anaheim’s Ethics Reckoning Continues: The Voice of OC reports on the ongoing efforts to increase the state’s enforcement power in the wake of the multi-layered ethics scandal enveloping the City of Anaheim. Now, legislators want to tighten California’s Surplus Land Act to allow state agencies “to nullify land deals if it’s been determined the land sale is illegal.” After it was revealed that Anaheim had violated the Act in the sale of the Major League Baseball stadium, the Attorney General still “let the deal go through with some additional affordable housing requirements” so long as the city paid the $96 million fine. The transaction was ultimately halted in light of the ongoing FBI investigation.

WEEK OF June 10th, 2022

The Federal Bureau of Investigation confiscated the digital records of retired Marine General John R. Allen, “who authorities say made false statements and withheld ‘incriminating’ documents about his role in an illegal foreign lobbying campaign on behalf of the wealthy Persian Gulf nation of Qatar.” NPR reports on the details of potential FARA violations. Notably, Qatar was a prominent donor to the Brookings Institute, which Allen headed, until being placed on administrative leave this week

The Governor of Illinois approved HB 716, which limits the amount of outside contributions to a self-funded committee to elect a judicial candidate. The measure also limits the amount that organizations that are not required to disclose their donors may contribute to judicial candidates. The bill takes effect immediately and applies to elections beginning this year.

The Way to San Jose: San Jose Spotlight reports on a complaint claiming that San Jose’s current Mayor may have violated campaign finance regulations by forming a political action committee (PAC) and raising money from the regulated community to support candidates, other than himself, running in local elections. It further alleges that the PAC and sponsoring nonprofit exceeded local limits and skirted local disclosure requirements. Contributors apparently were not directly targeted in the complaint. The mayor’s representatives called the complaint “frivolous” and the City Attorney responded that “the municipal code ‘does not prohibit’ [a sitting mayor not running for reelection] from opening and personally fundraising for a PAC—even ahead of the fundraising period. The mayor is also not subject to the contribution limits in San Jose.” The PAC was operated in reliance on a 2014 trial court decision trial court decision, involving the last mayor, finding that a state law prohibiting independent expenditures by candidate-controlled PACs is unconstitutional. Even so, the current mayor stepped down as head of the PAC after an opinion from the Fair Political Practices Commission earlier this year.

In Case You Missed It:

Buckeye PAC Coordination: We previously reported on committees formed to support specific candidates posting information and research on their websites advantageous to their preferred candidate and which could be made use of by that candidate’s campaign. Now, local Ohio Media is reporting on a lawsuit filed against a United States Senate Candidate from Ohio, alleging that “a covert website…where [a] super PAC posted numerous campaign research, polling and strategy documents.” constituted a prohibited in-kind contribution. As an example, the lawsuit points to an ad the campaign ran that is nearly identical to a script posted on the PAC’s website. The complaint also argues that “although the website was technically publicly available, it couldn’t easily be found through search engines [and] that once the super PAC’s leaders found a different campaign using data they’d posted to the site, they treated it as a data leak.”
SoCal’s Soul Searching: The multi-layered scandal in Anaheim, California, and in Southern California generally, has many officials “reexamining the influence of special interest groups – [what the FBI alleges is] a special interest ‘cadre.’” Voice of OC contends that, at the very least, there will be increased scrutiny for PACs funded by major corporations with interests before the City and renewed pressure for local campaign finance restrictions. In fact, “Council members voted 5-0 to bring back the campaign finance discussion at its next meeting and to put out bids for an outside investigative firm to examine all contracts voted on by city council members that benefit some of the entities wrapped up in the FBI corruption probe.”

WEEK OF June 3rd, 2022

The Governor of Tennessee signed a pair of bills affecting lobbyists and campaign finance enforcement. SB 884 eliminates the privilege tax that the state imposes on lobbyists, effective May 31, 2022. This annual occupation tax previously applied only to persons registered to lobby the state government. SB 1005 concerns settlement procedure, disallowing the state Registry of Election Finance to settle civil penalties outside of regular meetings or a special meeting called for that purpose if the penalties exceed $25,000.
The State of Maryland enacted SB 15, which focuses on campaign finance enforcement. Among its noteworthy provisions are restricting those with unpaid election related penalties or fines from candidacy or as a treasurer for “campaign finance entities.” The bill also requires specific proactive procedures for enforcing the payment of fines and referrals for additional civil and even criminal action.
The Governor of Oklahoma signed HB 3056, which “authorizes municipalities…to enact a comprehensive code of campaign finance and personal disclosure ordinances.” While the bill permits these cities to create provisions for “hearing and enforcement,” it also caps civil fines at $500.

In Case You Missed It:

Southern California’s Small World: The growing political corruption scandals in Anaheim shed light on a larger issue of political corruption more broadly in Southern California. The Los Angeles Times laments that the “FBI’s Los Angeles office has been extraordinarily busy at City Hall, launching probes into councilmembers, lobbyists, city lawyers, political aides and executives at the Department of Water and Power — some of whom have pleaded guilty.” Similarly, Cal Matters situates the multi-layered Anaheim scandals and the implicated actors within a larger setting of “an unsavory history of local government corruption in Southern California…The common denominator…is that local government decisions can have enormous economic consequences, ranging from trash hauling franchises to real estate developments…[and] [t]hose who may benefit from municipal actions have an obvious motive to influence decision makers and often hire those with inside connections, such as campaign consultants.”
Windy City Blows Over Ethics Reform: Local media reports on stalled efforts to reform Chicago’s ethics code and the mayor’s role in the diminishing prospects that these reforms will pass before the 2023 municipal elections. The proposal, “which has failed to advance in the two months since its introduction…would hike the maximum fine for violating the city’s ethics ordinance from $5,000 to $20,000 as part of an effort to grapple with Chicago’s seemingly intractable legacy of graft and mismanagement.” The mayor, who was elected on an anti-corruption platform in 2019, has apparently conveyed mixed signals about her position on the proposal and even “instructed her allies on the City Council to use a parliamentary maneuver during the May 25 City Council meeting to prevent… holding a hearing on the proposal this month.” The proposal would also include stricter conflict of interest, pay-to-play, and revolving door provisions.
Staff Literally Handle Congressman’s Dirty Laundry: Roll Call reports on the ethics imbroglio surrounding West Virginia Alex Mooney as detailed in a report from the Congressional Ethics Office. Mooney apparently violated Congressional ethics rules when he and his family vacationed last year at the Ritz-Carlton in Aruba, paid for by HSP Direct, a company with which Mr. Mooney has significant financial and personal ties, “to the tune of over $10,800 for travel, lodging, meals, amenities, entertainment and activities.” Mooney and his family apparently also required Congressional and campaign staff to perform personal errands, including mechanic work on their cars, tutoring their children, dog-sitting, and other “tasks that had no connection to official duties.” The New York Times reports that “former staff members also were expected to gather Mr. Mooney’s dirty clothes from various places in the official office and have them taken to the dry cleaner… Mr. Mooney also asked an aide to take a shirt and a towel home with her to wash in her washing machine.”

WEEK OF May 27th, 2022

Latest Developments:

The United States Senate confirmed elections lawyer Dara Lindenbaum to the Federal Elections Commission with a bipartisan vote. As Roll Call reports, the Commission “in recent years had too few commissioners to conduct official business or even hold meetings. When Lindenbaum joins the agency, five [of the] commissioners will have been confirmed since May 2020.” Lindenbaum has agreed to recuse herself for two years from matters coming before the Commission which may involve clients she represented, some of whom are still active in electoral politics.
The Governor of Florida signed HB 7001, which implements a constitutional provision (Article II, Section 8(f)) previously adopted by the voters. The constitutional provision bans lobbying for six years after public officials leave office. The bill adds detailed definitions in connection with that provision and imposes penalties, including a fine of up to $10,000, for violation of the ban. Both the constitutional provision and the bill take effect December 31, 2022.
The California Fair Political Practices Commission issued a press release announcing “a new guide to make it easier for public entities to understand and follow the rules involved with spending taxpayer money to inform the public on issues involving political campaigns.” Under California’s Political Reform Act, public entities must disclose their expenditures, even when prohibitions regarding these expenditures fall outside of the Commission’s jurisdiction. The press release notes that violations of FPPC rules have multiplied “[i]n recent years [given]…a noticeable increase in campaign activity by public agencies… us[ing] public monies to produce communications – letters, flyers, radio, or television spots – intended to persuade voters to support or oppose ballot measures instead of simply providing voters with impartial information.”

In Case You Missed It:

Mayor Has His Wings Clipped: The Mayor of Anaheim, California resigned this week amidst an expensive federal probe into City officials concerning multiple corruption and money laundering allegations. As Politico reports, the accusations contend that the Mayor “sought to turn the city’s prolonged attempt to sell [the MLB] Angel Stadium…to his personal advantage… us[ing] an intermediary to pass confidential information about those talks to an Angels representative… [and concurrently] discussed his intention to ask an Angels representative for half a million dollars or more in campaign donations in exchange for his work advancing the proposed stadium deal.” The Mayor maintains his innocence and a “judge has halted the planned stadium transaction at the request of the California Department of Justice.”
Court Revelations Make Corporation Blush: The growing Anaheim dragnet sheds light on one major corporation’s machinations in local politics as detailed in FBI and related court documents. According to the Los Angeles Times, these documents refer to “Company A” and they “provide an unusually detailed look inside how the company works to shape events away from public view.” While not accused of any wrongdoing, the company’s influencing was revealed in recorded deliberations with City officials and other businesses interests. One such example is providing input for a script written for an Anaheim official (which the LA Times deduces is the now-former Mayor) arguing for a municipal bond measure which would cover revenue shortfall due to the pandemic. The corporation’s representative subsequently criticized the mayor’s delivery of the statement, which included copious praise for “Company A.”
Country Club Campaigning: The Office of Congressional Ethics revealed potential campaign finance violations against Texas Rep. Ronny Jackson. According to New York Times, the Congressman’s campaign apparently used campaign funds for expenditures for membership at a country club that “allowed him and his wife unlimited use of the club’s dining rooms, gym, banquet and meeting rooms, as well as access to club events and other benefits…in violation of Federal Election Commission regulations prohibiting the use of campaign funds for such purposes.” Jackson claims that the club membership was to be used for meeting and fundraising purposes, although he “refused to cooperate with the investigation, and his campaign’s treasurer and accounting firm refused to provide documents to investigators.” The Times notes that the club is part of a larger nationwide network of country clubs and golf courses and that thousands of campaign dollars have since been spent on monthly dues, dining, and meeting events.

WEEK OF May 20th, 2022

Latest Developments:

The Supreme Court of the United States, in FEC vs Cruz, ruled in favor of Sen. Ted Cruz in a case involving post-election contributions for repayment of a loan he made to his 2018 campaign which was $10,000 over the specified limit. As the Associated Press notes, in doing so, the Court struck down parts of the 2002 election reform law which held “that if a candidate lends his or her campaign money before an election, the campaign cannot repay the candidate more than $250,000 using money raised after Election Day.” The majority opinion notes “that the provision ‘burdens core political speech without proper justification’” and that there are still individual contribution limits per election, regardless if they come before or after election day.
The Governor of Maryland signed a pair of ethics bills with consequences for both campaign finance and local ethics commissions conflict of interest policies. SB 239 prohibits “publish[ing] any contributor information from any report or statement…in newspapers, magazines, books, websites, or other similar media for…commercial solicitation.” HB 1059, requires bi-county ethics commissions to adopt “conflict of interest standards applicable to public officials” that mirror similar state conflict-of-interest laws.

In Case You Missed It:

DOJ Sues Gaming Magnate: The US Department of Justice has sued casino owner and businessman Steve Wynn, who has close ties to former President Donald Trump, for allegedly lobbying on behalf of the Chinese government. As the New York Times reports, the lawsuit claims that, on multiple occasions “in 2017, Mr. Wynn pushed Mr. Trump [and other administration officials] to deport…[an unnamed] Chinese businessman who had sought asylum in the United States.” One objective of the lawsuit is to compel Mr. Wynn to register as a foreign agent. The DOJ claims “that it had asked Mr. Wynn to register himself as a foreign agent under the Foreign Agents Registration Act in 2018, 2021, and April of this year, but that he had refused.”
Synchronization not Coordination: The New York Times profiles the slew of moderate Democratic candidates working around campaign finance regulations openly providing detailed information for friendly PACs to use on their behalf. In many cases, it takes the form of “a red-bordered box on an obscure corner of…[a campaign] website” with opposition research, target demographics, and talking points that PACs can easily adapt for ads and other campaign expenditures. According to the Times, “campaign watchdogs complain that the practice…effectively evad[es] the strict donation limits imposed on federal candidates.”
Ban on Out-of-State Contributions Unfair?: A 2021 law Illinois banning out-of-state contributions for judicial candidates is now claimed to favor in-state wealthy interests and hamper small donors, such as family members living outside Illinois whose support might be essential. Injustice Watch reports on the numerous judicial candidates who have had to return mostly small donations from family members and claim that “[w]ealthier candidates often have the advantage of being able to self-fund their campaigns while leaving others unable to make up the difference”. Critics further contend that the ban “doesn’t address the bill’s intention of deterring outside influence that is more likely to come from in-state corporations and special interest groups.”
When Work from Home Includes Campaign Offices: Business Insider covers the case of a Florida Congressional candidate facing FEC inquiries regarding her use of campaign funds for personal expenses like home electric bills. The article notes that, while there are narrowly defined personal uses such as private security that are permitted, candidates may not apply “donor funds for personal use, whether it be for rent, home internet, cable service, personal travel, or to pay for an energy bill…to prevent candidates from financially enriching themselves”. However, the candidate responded that her “campaign has used her home for campaign organizational and strategy meetings, campaign fundraising, general work space for campaign staff and volunteers” and other campaign related projects and that such reimbursements are valid.

WEEK OF May 13th, 2022

Latest Developments:

The Governor of New Jersey conditionally vetoed an anti-corruption bill earlier this week, contending that it might “allow those who offer, solicit or accept bribes for corrupt acts to find loopholes to evade criminal liability, which would then result in future legal arguments and judicial decisions.” As New Jersey media reports, the governor’s concern stems from a recent appellate decision regarding a failed mayoral candidate who was offered money by an attorney who wanted to be hired by the city. “A Superior Court judge ruled last year that because O’Donnell was not an elected official at the time, he had no power to make promises in return for the money. The appellate court decision in April said the ruling should be overturned and that judges from both the state trial court and the federal court were wrong because bribery is a ‘reciprocal crime’”. The bill now returns to the legislature with the governor’s suggested revisions to address loopholes which might not cover transgressions of these sorts.
The United States Department of Justice announced the arrest of two Puerto Rico mayors in a pay-to-pay scandal in which the mayors accepted cash payments from vendors in exchange for municipal contracts. According to WRIC, the arrests are part of a larger FBI initiative to uncover political corruption in Puerto Rico. Both mayors stand accused of “involvement in a bribery conspiracy…in which [they]received and accepted cash payments from two businessmen in exchange for awarding municipal contracts for waste disposal services, asphalt and paving services and debris removal, as well as payment of outstanding invoices on the contracts.” One mayor received at least $32,000 and the other at least $15,000.
The Alaska Public Office Commission has given notice of proposed regulations “dealing with contributions, independent expenditures, political communications, reporting requirements, and penalty mitigation.” Responding to the 2020 campaign overhaul initiative approved by voters, the statutory revisions augment post-election campaign contribution reporting requirements, further define “prohibited contributions”, refine reporting requirements for non-profit committees, and seek to institute 24 hours reporting, among other changes. The public comment period ends June 8^th and the full text of the regulations can be found here.

In Case You Missed It:

Cloning PACs in the Natural State: The Arkansas Times reports on the proliferation of what they term “cloned PACs”, political action committees “funded by the same person or persons to multiply influence in political races.” While in Arkansas “a corporation or individual can put up to $5,000 in PAC,” by establishing distinct entities, the same contributors could donate to each organization which each have their own separate contribution limits. While the Times points out that multiple PACs were involved in recent state campaign finance scandals, the article acknowledges the legality of the practice.
Portland Contribution Limit Workaround: Oregon Public Broadcasting provides an analysis of this, the second election cycle in which the City of Portland’s public financing program has been in effect. In this year’s city council races, as in the 2020 cycle, individuals affiliated with the business and labor political action committee Portland United have given heavily to that PAC in addition to donating the maximum of $250 to their preferred candidate who is also receiving public funds. Critics contend that this phenomenon frustrates the program’s goal of “reduc[ing] the influence of big money in politics.” Instead of raising the caps to counteract PAC’s spending, the Portland Commissioner challenged by the PAC-supported candidate indicated that she will approach the City Attorney to require that future candidates disavow the committees making expenditures on their behalf or be suspended from the matching funds program.

WEEK OF May 6th, 2022

Latest Developments:

The United States House of Representatives passed S 3059, which would “require federal judicial officers, bankruptcy judges, and magistrate judges to file periodic transaction reports disclosing certain securities transactions….Specifically, the bill requires federal judicial officers, bankruptcy judges, and magistrate judges to file reports within 45 days after a purchase, sale, or exchange that exceeds $1,000 in stocks, bonds, commodities futures, and other forms of securities.” Having previously passed the Senate, the bill now heads to the President for signature or veto.

The Center for Political Accountability has released their “Practical Stake: Corporations, Political Spending, and Democracy” report on corporate contributions to candidates for approximately the last four years. Analyzing contributions made through business affiliated PACs, 501(c)4 organizations, and trade associations, the Center then correlates these donations with policy positions taken by recipient lawmakers. In “the report, [the Center] then sets out a framework for companies to evaluate their political spending and align it with core company values and core democracy values, mitigating risks to their self-interest and to democracy.”

The Colorado Senate voted to move forward with SB 237, which would “define ‘major purpose’ in campaign finance statutes and the parameters under which it would apply, particularly when it comes to issue committees.” As Colorado Politics reports, the bill has broad bipartisan support and seeks to “establish clear thresholds on spending, above which an organization would qualify as having a ‘major purpose’ of supporting a ballot measure and which would trigger registration as an issue committee, as well as a requirement to file campaign finance reports.”
The City of Cincinnati is moving forward with a ban on campaign contributions from certain developers after the City Manager approved rules which will go into effect later this month. As local media reports, these “rules prohibit sitting council members and the mayor from soliciting or accepting campaign donations from…[developers] with active business at council.” The rules stem from an ethics ordinance passed last year in the wake of 3 City Council members arrested for alleged bribery. Still, critics argue that “the ordinance should be broadened to include more than just developers, because other types of people have a financial interest in decisions made by council.”

Reminders:

The Practising Law Institute presents Advanced Topics in Ethics and Compliance 2022: State and Local Government Contracts, a one-hour session on May 12, 2022, from 10:45-11:45 PT/1:45-2:45 ET, chaired by Elli Abdoli of Nielsen Merksamer. Watch online or attend in person in New York City.

Interested persons may register here. CLE credit will be available.

In Case You Missed It:

Challenge Against Corporate Contribution Ban Denied (Again): The Supreme Court of the United States, without comment, denied certiorari to yet another challenge to direct corporate contributions to candidates. In refusing to hear Lundergan vs. USA on Monday, the Court, without noted dissent, was asked to consider “whether the federal ban on corporate contributions is unconstitutional as applied to intrafamilial contributions from a closely held, family-run corporation.” The case involved the contributions of the appellant, the father of a former Kentucky statewide office holder, facing criminal prosecution for contributions made to his daughter’s campaign.
To Comment or Not to Comment?: In the wake of Florida’s decision to rescind certain business incentives for Disney after the latter’s criticism of recent legislation, corporate executives are reported to be concerned with how to avoid fallout for their own companies should they opine on hot button concerns. Indeed, the Wall Street Journal reports that “[a]t many companies, vocal employees have in recent years pushed bosses to take public stands on social and political issues…[and now] Florida’s pushback against Disney has raised the stakes.” While, “[t]he old idea that CEOs should focus on shareholder returns and stay out of politics lingers in some corporate suites, even in a politicized age of public social-media discussions and more-activist workforces… the consequences of weighing in appear to be changing.”
PAC Goes Public to Support Outsider Senate Candidate: Politico reports about the highly novel approach a Peter Theil backed super PAC took to helping the successful nomination of the largely understaffed come-from-behind J.D. Vance campaign for U.S. Senate in Ohio. Indeed, the super PAC, “set up a public website publish[ing] a trove of sensitive documents — from thousands of pages of polling data, to memos assessing the strengths and weaknesses of Vance’s opponents, to a 177-page opposition research book detailing all of the areas where Vance’s opponents might attack him.” While publishing the information this way made it available to everybody, it picked up the slack for a candidate who otherwise lacked much of the institutional campaign infrastructure of the other establishment candidates.” Also noteworthy, “Theil…[gave] $15 million in total to bolster Vance — the largest amount ever given to boost a single Senate candidate.”
FARA’s Long Reach: The U.S. Department of Justice is being asked to investigate celebrity physician and Pennsylvania Senatorial candidate, Dr. Mehmet Oz for what an advocacy group claims is a violation of the Foreign Agents Registration Act. The accusation stems from a promotional video and ad appearances the candidate made for Turkish Airlines, which according to the New York Post, is 49.12% controlled by the Turkish government as of 2015. While Dr. Oz’s spokesperson contends that “[i]ndividuals and firms working to advance the bona fide commercial interests of a foreign business are not subject to FARA and not required to register,” a FARA expert contends that this type of public relations work would “likely…not qualify for the [commercial] exemption because the activities would directly promote the public or political interests of the foreign government.”
Virtual Disclosure Considerations: In the wake of pandemic driven increase in virtual meetings, a report by Austin city auditors has brought to light the disclosure gap created by the lack of a requirement that lobbyists register their virtual meetings with City officials as they are required to do for in-person meetings. While the report noted that compliance with lobbyist registration and reporting was consistent, “nothing in city code requires either the lobbyist or the person being lobbied to keep a record,” according to The Austin Monitor. The report recommends revising the lobby ordinance to incorporate virtual meetings, similar to other Texas cities such as San Antonio and Dallas.

WEEK OF April 29th, 2022

Latest Developments:

The United States Supreme Court has declined, without comment, to hear a challenge to Rhode Island’s campaign finance reporting requirements. The state “requires independent expenditure groups to disclose all donors giving at least $1,000 and for the advertisements themselves to list the group responsible and top five largest donors.” Conservative groups, whose challenges did not prevail in two previous federal courts, “argued that making donors identify themselves could subject them to criticism and harassment. They called for a judgment-free “safe space” for political contributions.”
The Washington Public Disclosure Commission is considering raising the trigger for reporting late cycle campaign contributions from $1,000 to $1,500, citing “the economic changes reflected in the inflationary index.” The so-called “last-minute contributions” refer to donations made “six days before the primary and 21 days before the general election.” The adjustment would be effective for the 2022 election cycle under an expedited process which would skip most public review.
Taco Campaign Drive: The California First Appellate District-Division Two ruled this week that East Palo Alto City Councilmember Antonio Lopez did not engage in illegal electioneering during his 2020 election bid by giving out free tacos near a San Mateo County ballot drop box, and polling place. Lopez had advertised free tacos to those who showed up at the polling place and the court found that, ultimately, “the provision of tacos did not reward any voter for voting or voting for any particular person. The tacos were given to the entire community, including people who obviously could not vote, including children.”

In Case You Missed It:

Private Clubs No More in Minnesota Legislature: The Minnesota Post reports that a bill pending before the state legislature “would ban contributions to any club set up by a political committee of a candidate or a political caucus of the Legislature that provides access to lawmakers.” The ban was apparently requested by the Minnesota Campaign Finance Board, given that the current arrangement allows “charging membership dues to a club that provides access to Capitol decision-makers” to get around contribution session ban that already exists in law. Critics contend that the current arrangement provides “a way to accept money from, say, lobbyists, before session and a way to give those lobbyists special and private access to lawmakers during session.”
Lobbyists Squeezed out of Committee Rooms: California Globe is reporting on dwindling seating capacity in public spaces previously available to lobbyists at the California Legislature. Both the state Senate and Assembly are “still requiring social distancing in committee hearing rooms, greatly diminishing available seating for lobbyists and members of the public,” with some not even permitting 14% capacity. These restrictions are especially problematic for lobbyists as some committees have “not allow[ed] public/lobbyist phone-in testimony… [which] has been the only way…many lobbyists have been able to testify at legislative committee hearings” since the beginning of the pandemic.

WEEK OF April 22nd, 2022

Latest Developments:

The Governor of Maine signed P. 619, which permits businesses to “contribute the paid staff time of its employees and independent contractors to establish the committee and to provide fundraising and administrative services directly to the committee.” The measure also provides for inflation adjustments for the existing limit on individuals’ contributions to corporate-affiliated PACs beginning in 2023.
The Governor of Colorado signed B. 1060, which caps contributions to school board candidates. Individuals may contribute up to $2,500 and small contributor committees may contribute up to $25,000 per election cycle. The measure takes effect July 1.
The Wisconsin Ethics Commission reminded lobbyists that they may now make contributions to “candidates for non-legislative partisan state offices.” The window for making personal contributions to legislative offices will open next month after the legislature finishes its “veto review floorperiod” and adjourns for the year.

In Case You Missed It:

Ethics Agency Chastised: Tennessee Lookout reports that “[a] judge on Monday deemed the Tennessee Bureau of Ethics and Campaign Finance guilty of ‘willfully’ violating a court order barring the collection of registration fees from nonpartisan political action committees.” The court found the Bureau violated a 2018 injunction prohibiting it from collecting the fees.
Santa Fe Disclosure Law Upheld: According to the Santa Fe New Mexican, the United States Supreme Court turned down a petition for review of the city’s campaign spending disclosure requirements. In Rio Grande Foundation v. Santa Fe, a nonprofit, which spent money to oppose a soda tax, challenged the city’s “ordinance that forces nonprofit organizations that spend more than $250 supporting or opposing a ballot initiative to place on a publicly-accessible government list the names, addresses, and employment information of any donor who contributes even a penny to the organization for that purpose.”
New York Reforms Analyzed: The Gotham Gazette reviewed recent changes to New York lobby and campaign finance provisions that were included in a state budget act. The article explains the negotiations on what would replace JCOPE, as well as details on additional public campaign financing, voting reforms, and changes to the state’s open meeting law that were contained in the bill.

WEEK OF April 15th, 2022

Latest Developments:

The Governor of New York signed A 9006, a budget bill that replaces New York’s Joint Commission on Public Ethics with the Commission on Ethics and Lobbying in Government. (See Part QQ of the bill, beginning on page 151.) The 11-member commission will be appointed by various officeholders, subject to approval by an independent review committee made up of deans of ABA accredited law schools. However, the commission will choose its own chair and executive director, and the executive director will be responsible for hiring the staff. Members of the commission will serve staggered four-year terms. The measure continues the effect of “regulations or advisory opinions in effect on the effective date of this section that were issued by predecessor ethics and lobbying bodies.” These provisions of the bill take effect July 8, 2022.
The United States House of Representatives Committee on the Judiciary held a hearing on “Enhancing the Foreign Agents Registration Act of 1938.” Politico explains that “Lawmakers and a legal scholar, government watchdog and nonprofit advocate debated whether the Foreign Agents Registration Act should be expanded or reined in during a hearing… on the 1938 law — the first such session dedicated to FARA held by the House Judiciary Committee since 1991.”
The Governor of Utah approved HB 90, which extends coverage of the Lobby Disclosure and Regulation Act to local officials and educational officials, i.e., county, municipal, and school board officials. It permits those government entities to enact stricter measures. The bill also requires registration of “foreign agents.” The measure takes effect May 3, 2022.
The Governor of Virginia signed HB 492, which requires the Virginia Department of Elections to randomly audit the campaign finance statements of a 10% of legislative campaign committees and 1% of other campaign committees. The measure becomes operative January 1, 2024.
The Seattle Ethics Commission increased the contribution limit for candidates not participating in the democracy voucher program from $550 to $600 per election cycle for the 2022 election cycle.
The United States Department of Justice announced an indictment of New York Lt. Governor Brian Benjamin on corruption charges. The New York Times reports “The five-count indictment charging Mr. Benjamin said that while he was a state senator, he had conspired to direct $50,000 in state funds to a Harlem real estate developer’s charity. In exchange, the developer gathered thousands of dollars in illegal contributions to Mr. Benjamin’s 2020 Senate campaign and his unsuccessful 2021 bid for New York City comptroller…” The developer is accused of filling “out campaign contribution forms in front of Mr. Benjamin, signing the forms not in his name, but in the names of his relatives…” He steered “a series of fraudulent donations to the comptroller campaign. Some were made in the names of individuals, including the developer’s 2-year-old grandchild, who did not consent to them; others had donated money but were fully reimbursed.” Benjamin resigned within hours after the indictment was unsealed.

Reminder:

Voting and the Disability Community: Disabled voters faced unique challenges in elections held during the pandemic, particularly in regard to privacy and access to all-mail voting. The American Bar Association will be considering how to improve the law and best practices by election administrators. If you are interested in the topic, join Nielsen Merksamer’s Jason Kaune and others at this webinar on Wednesday, April 20 at 3 p.m. Eastern (Noon Pacific) open to ABA members. Register here.

In Case You Missed It:

BART May Cancel Contract over Spousal Conflict: According to the California Fair Political Practices Commission California “Government Code Section 1090 prohibits an officer, employee, or agency from participating in making government contracts in which the official or employee within the agency has a financial interest.” The Los Angeles Times reports that the Bay Area Rapid Transit District “may be required to void a $40-million construction management contract after an investigation revealed a potential conflict of interest… The manager clearly had a role in making several contracts with the firm…” The manager’s spouse is an employee of the contractor and “received an annual profit-sharing distribution from the firm, and the firm’s contracts with BART likely contributed to at least some of those profits…”
High Flying Ethics Issues: KIVT4 explains that “Members of Congress are limited to earning a maximum of $29,895 from outside sources of income in 2022, according to rules set by the House Ethics Committee.” A Hawaiian member “earned $29,151.79 from Hawaiian Airlines in 2021… His outside income also raised questions about a potential conflict of interest, since Hawaiian Airlines has business before the House Transportation and Infrastructure Committee. [The member] serves on that committee, which has jurisdiction over the airline industry. [His] office defended his seat on the Transportation and Infrastructure Committee, saying his background as a commercial pilot offers a ‘unique perspective.’”
FEC Cracks Down on Canadians: According to the New York Times, “A Canadian steel industry billionaire illegally helped steer $1.75 million in donations to a pro-Trump super PAC and has agreed to pay one of the largest fines ever levied by the Federal Election Commission to settle the case… [The billionaire] played a role in directing one of his executives who is a U.S. citizen to send in the contributions — some of the largest made by any donor to the super PAC — even though federal law prohibits foreigners from participating in decision making related to campaign donations, as well as from directly writing campaign checks.”
Entire Ethics Panel Resigns: Maryland Matters reports that the volunteer “ethics panel that produced a controversial set of findings against members of the Prince George’s County Board of Education is stepping down en masse. The panel notified board chair Juanita D. Miller of their intention to resign as a group in an April 3 letter that was obtained by Maryland Matters. The departures will take effect on Friday and will leave the (school) board, which has been dogged by allegations of misconduct, without ethics overseers.”
Straw Donor Plea: The United States Department of Justice announced that former state senator and congressional candidate Brent Waltz “pled guilty in federal court … to two felonies: making and receiving conduit contributions, and making false statements to the Federal Bureau of Investigation. Waltz faces up to five years in prison for each offense.” The Indianapolis Star explains that the “he participated in a scheme to funnel $40,500 in illegal contributions to his failed campaign for Congress in 2015.” Money from a casino operator “was funneled through a Maryland political consultant” and that money was used “to reimburse more than a dozen ‘straw donors’ who contributed to Waltz’s campaign for U.S. House.”

WEEK OF April 8th, 2022

Latest Developments:

The U.S. Government Accountability Office issued a report to congressional committees regarding compliance with lobby reporting requirements. The report found that “most lobbyists provided documentation for key elements of their disclosure reports to demonstrate compliance with the Lobbying Disclosure Act of 1995, as amended (LDA)… GAO estimates that
- 92 percent of lobbyists who filed new registrations also filed LD-2 reports as required for the quarter in which they first registered…;
- 97 percent of all lobbyists who filed provided documentation for lobbying income and expenses;
- 35 percent of all LD-2 reports may not have properly disclosed one or more previously held covered positions as required; and
- 7 percent of LD-203 reports were missing reportable contributions.”
The Governor of Florida signed HB 921, which prohibits nonresidents and out-of-state PACs from contributing more than $3,000 to a “political committee that is the sponsor of or is in opposition to a constitutional amendment proposed by initiative.” The limit applies until “the Secretary of State has issued a certificate of ballot position and a designating number for the proposed amendment that the political committee is sponsoring or opposing.”
The California Attorney General issued an Opinion 19-1001 finding that the state’s “statutory ban on [Fair Political Practices] Commissioner (political) contributions applies to candidates in federal elections held in this State.” The Attorney General reviewed a statute that he said “fosters impartiality by prohibiting Commissioners from engaging in certain political activities during their tenure. Commissioners may not serve as an officer of a political party or partisan organization, work as a lobbyist, or hold or seek another public office. Nor may Commissioners ‘participate in or contribute to an election campaign.’” The opinion reviews other provisions of the Political Reform Act covering federal activity, some of which were preempted (for example, additional filings by federal officials) and others that remain (notably the state’s pay to play law’s applicability to certain federal contributions.) The opinion was triggered when a commissioner contributed to a federal presidential candidate.
Voters in the City of St. Louis approved Proposition R, an ethics measure that includes an independent redistricting commission and prohibits various conflicts of interest. Among other things, the measure prohibits any “Alderperson or employee of the Board of Alderpersons” from working as a lobbyist or seeking to “directly or indirectly influence a decision of the City or any department or agency thereof until one year after termination of their service or employment.” The voters approved the measure by a 69% to 31% margin.

In Case You Missed It:

Case Closed: The Federal Election Commission has resolved its case against former Congressman Duncan Hunter and his campaign committee. The Hunters agreed to pay a $12,000 fine; the committee earlier agreed to pay a $4,000 fine. The San Diego Union-Tribune explains that the fines were for “wrongly spending campaign donations for personal use…” Hunter resigned from office after both he and his wife pleaded guilty to criminal charges related to the contribution activity. Both were pardoned by President Trump.
Cuomo Sues JCOPE: The Albany Times-Union reports that former Governor Andrew Cuomo’s attorney “filed a complaint asking the state inspector general’s office to investigate their claim that members of the [New York Joint] commission [on Public Ethics] or its staff leaked confidential information about Cuomo’s dealings with the ethics panel. [His attorney] also filed a lawsuit in state Supreme Court late Friday challenging the commission’s efforts to make him return more than $5 million in proceeds from a book he wrote about his administration’s handling of the pandemic.”
Another Corruption-Related Resignation: The San Francisco Chronicle reports that the head of San Francisco’s Department of the Environment, Debbie Raphael, resigned in advance of a report detailing her solicitation of a city contractor for a contribution to fund events. One city supervisor called for a “hearing after recent reports from the San Francisco Standard that Raphael ‘may have been complicit in granting a sizable and controversial landfill contract to Recology while soliciting a $25,000 contribution’…” A new city ordinance, effective this year, bans behested payments from interested parties, including city contractors, lobbyists, and permit consultants.
130+ Ethics Charges: The Charleston Post & Courier describes the plight of a state legislator who “is facing more than 130 ethics charges related to allegations he mishandled campaign funds. Among the most serious charges against the four-term House member: that Hill spent campaign money on a personal mortgage, accepted — but didn’t report — cash donations, and failed to publicly report fundraising and spending for his Statehouse campaigns.” The article notes that the “investigation sprang from an audit that found Hill’s campaign records were a mess.”

WEEK OF April 1st, 2022

Latest Developments:

A Federal Grand Jury in Tennessee saw top state lawmakers, including the current state-House speaker, testify this week amidst a years-long “investigation [of]…a case involving the creation of a political vendor that gave kickbacks to lawmakers,” according to The LA Illuminator. Additionally, Nashville 5 reports that, as part of the probe, it is alleged that “former House Speaker Glen Casada received ‘kickbacks’ in exchange for steering business to that company, Phoenix Solutions…[which] was secretly controlled by longtime Casada aide.”
Federal Prosecutors in Arkansas announced a settlement on Thursday in which a health care non-profit “agreed to forfeit more than $6.9 million to the federal government and pay more than $1.1 million in restitution to Arkansas.” The organization, Preferred Family Health Care, “admitted that its former officers and employees conspired to embezzle funds from the charity and bribe Arkansas legislators.” Arkansas Business reports that several former executives from the charity, former Arkansas legislators, and others have pleaded guilty in federal court as part of the corruption probe, including a lobbyist for the organization who pled guilty in 2019 to bribery and was sentenced to seven years in prison.
The Hawaii Commission to Improve Standards of Conduct, commissioned by the state legislature, issued its interim report in which it suggested several legislative proposals to “improve standards of conduct among elected officials and employees as safeguards against the further erosion of public trust and confidence in government.” As Hawaii Public Radio reports, the Commission was formed in the wake of two former lawmakers charged with bribery and proposed such legislation as increasing fines on Super PACs that raise more than $10,000 from a single source, increase state Attorney General staff for prosecution of public corruption crimes, and prohibit fundraising during the legislative session, among others.

In Case You Missed It:

Colorado PAC’s Phantom Funds: The Colorado Secretary of State Elections Division has agreed to look further into a Colorado Springs party official’s complaint that a PAC made contributions to local candidates that it apparently did not have the money to cover. According to the notice, the PAC “reported no contributions since July 2016 and showed an on-hand balance of only $850…[yet] made two prohibited $5,000 contributions to two candidate committees for county office in October 2021, which were not reported in Respondent’s required disclosure reports.” While the candidates returned the part of the contributions in excess of the legal limit, the Colorado Springs Independent distills the larger question as, “[w]here did the 10K come from?”
Pelican State Campaign Practices: The Advocate is reporting on Louisiana state AG Jeff Landry’s decade-long campaign practice of paying a staffing business he owns for campaign related expenses, estimated at more than $420,000 over the last 15 years. Public records show that “Landry is the sole owner of [the recipient] firm and earns more than $200,000 in annual income from it.” Good government watchdog groups in the state contend that the practice obscures who is being paid by the campaign for services. At the same time, “Louisiana law doesn’t directly address whether political candidates may spend campaign cash on their own companies.”
Old Line Campaign Funds for Legal Defense: We reported last week on state attorney Marilyn Mosby’s alleged campaign irregularities in that deceased relatives’ names were listed as campaign contributors years after their demise. This week, The Baltimore Sun reports that the embattled official received a favorable determination regarding another campaign finance complaint. Facing “federal charges of perjury and making false statements following a nearly yearlong probe into her personal finances and campaign spending” the Maryland State Board of Elections determined that her and her politician husband’s “use of campaign funds for the legal defense…did not violate state election law.” While state law prohibits campaign funds from being used for lawsuits not immediately related to the campaign, the Mosby’s argued that “the investigation…‘inserted itself into almost every aspect of their lives — including their respective campaign committees’”.

WEEK OF March 25th, 2022

Latest Developments:

The Oregon Supreme Court issued a ruling in Ofsink v. Fagan, turning down an appeal asking the “Secretary of State to withdraw her orders that disqualified their initiative petitions from appearing on the November 2022 general election ballot.” The initiatives would have permitted Oregon voters to consider campaign contribution limits at the November 2022 election. Oregon Public Broadcasting explains that “The decision is almost certainly a fatal blow to the effort to institute campaign finance limits this year.”
A federal judge in Wyoming “ruled that the state cannot force a Second Amendment advocacy group to share the names of its donors.” According the Cowboy State Daily, the judge found that “‘the state can only impose these disclosure and disclaimer requirements where it satisfies exacting scrutiny.’” He found that “it would be impossible for the [Wyoming Gun Owners] to determine which contributions would be used specifically for political advertising and which would be used to pay for other activities.” He also found “the statute is also unconstitutional because it calls for the reporting of expenditures which ‘relate to’ campaign communications, a term he said was unconstitutionally vague.”
A US District Court judge sentenced “[a] Ukraine-born U.S. businessman…to one year and one day in prison on Tuesday after being convicted last year… for funneling money from Russian tycoon Andrey Muraviev to U.S. political candidates who could help a cannabis company he was building.” The defendant sought to avoid prison time by claiming that he can better help Ukrainian refugees and charitable efforts in his home country, but the judge claimed the sentence would serve as a deterrent. The sentencing comes amidst the federal government “target[ing] wealthy Russian businessmen with possible sanctions, asset seizures and criminal charges to pressure the Kremlin to stop its invasion of Ukraine.”

Reminders:

The Practising Law Institute presentsNonprofit Involvement in Elections: What to Look for in 2022, a one-hour webinar on March 29, 2022, from 10-11 am PT, moderated by Joel Aurora of Nielsen Merksamer.

Interested persons may register here. CLE credit will be available.

In Case You Missed It:

Failure to Register PAC Results in Criminal Charges: The New Mexico Attorney General announced that he had filed criminal charges “against Couy Griffin for one count of violating the Campaign Reporting Act. The Associated Press explains that the ‘’New Mexico elected official was charged Friday with a misdemeanor campaign finance violation for refusing to register his political group Cowboys for Trump.” The charges come after Griffin lost an appeal in the 10^th Circuit (Cowboys for Trump v. Toulouse Oliver). The Associate Press reports that Griffin is “planning a fresh challenge to the reporting requirement.”
Deceased Reportedly Made Campaign Contributions in Baltimore: Baltimore City’s State Attorney Marilyn Mosby’s late grandfather, deceased since 2015, is listed on campaign finance reports as having made campaign contributions in 2017 and 2021 to both her campaign account and that of her Baltimore City Councilmember husband. According to local media, Mosby, who is under “indict[ment] on federal charges of perjury and making false statements on a loan application…chalked up the contribution made in Mosby’s late grandfather’s name as an ‘administrative oversight’.”
State Capitols Reopening: The Hartford Courant reports that, after two years, “mask-wearing lobbyists say they are happy to be back [in the state capitol building] after having little personal access to lawmakers during the entire pandemic.” The article points out that “Lobbying is the art of personal persuasion, reading body language, and making follow-up points. That is very hard to do on the phone or on Zoom.”
Atoning for Years of Missing Campaign Finance Reports: Local media in Charlotte, North Carolina is reports on former City Council member James “Smuggie” Mitchell’s contrite statements for missing three years of campaign finance reports. Fox46 reports that Mitchell, who is running again City Council, “failed to file his campaign finance reports with the Mecklenburg County Board of Elections Office for almost three years. The last campaign finance report filed by Mitchell was in July of 2019.” Last year, the former council member had “resigned due to a conflict of interest when he got a job as the CEO of a construction company that did business with the City.”

WEEK OF March 18th, 2022

Latest Developments:

The Governor of Wyoming signed SB 80, which requires “all campaigns and political action committees to file an itemized statement of contributions and expenditures,” not just those that expend funds during the reporting period, and increases the penalty for failure to file a campaign report from a flat $500 to an open-ended amount of up to $500 per day until the report is filed. The bill takes effect July 1.
NYC Ends Lobbyist Disclosure Policy: New York City’s new mayor “dispensed with a de Blasio-era policy to voluntarily disclose meetings top administration officials take with lobbyists.” Politico explains that “Two City Hall attorneys alerted administration employees of the change in a March 1 memo laying out rules governing communication with lobbyists… ‘Mayor’s Office employees are not required to maintain or file any reports or documents in connection with their meetings with lobbyists,’ the attorneys wrote, effectively undoing a discretionary policy former Mayor Bill de Blasio instituted to mandate routine disclosure of lobbying meetings.”

New York State Crackdown on LLCs: New York Focus reports that the New York State Board of Elections “identified about 3,400 LLCs that had donated to political campaigns but failed to file a ‘statement of interest’ form listing their owners and how much of the company each one owns, as required by… law.” The Board “has begun to enforce the law by notifying thousands of corporate donors that they are violating it.” The report also asserts that “dozens of LLCs also violated annual donation limits, donating as much as eight times the $5,000 cap. [The board’s counsel] said that after the letters, the next step in enforcement will be to investigate those violations.”

The Tennessee Registry of Election Finance voted this week to send a case to prosecutors concerning fraud and kickbacks involving a former state House speaker and other lawmakers, according to the Crossville Chronicle. As we reported last week, one state lawmaker involved in the scheme pleaded guilty to wire fraud and agreed to collaborate with prosecutors, with analysts predicting future indictments. Now, “[f]ederal authorities say…[multiple lawmakers] collaborated on a separate consulting firm…as a way to funnel money to themselves secretively and illegally through both campaign and taxpayer-funded work.” Another PAC and additional collaborators are named in the probe.

Reminders:

The Practising Law Institute presents Nonprofit Involvement in Elections: What to Look for in 2022, a one-hour webinar on March 29, 2022, from 10-11 am PT, moderated by Joel Aurora of Nielsen Merksamer.

This program will address the role of nonprofits as vital participants in elections, praised for nonpartisanship by some and derided as vehicles for “dark money” by others. With the 2022 midterm elections rapidly approaching, nonprofit organizations will again be involved in a range of election-related activities. As a result, it is crucial that nonprofit organizations—including 501(c)(3), 501(c)(4), and 501(c)(6) groups—and corporate donors understand the laws governing participation in advocacy and politics.

Interested persons may register here. CLE credit will be available.

In Case You Missed It:

The trial of Rep. Jeff Fortenberry (Nebraska) over campaign finance charges began on Thursday, as the latest development in the federal lawmaker’s years long legal ordeal. Fortenberry is accused of accepting illegal campaign contributions from a foreign national through straw donors and later lying about it to federal investigators. As the Wall Street Journal reports, federal prosecutors contend that Fortenberry “continued to deceive investigators, despite multiple ‘off-ramps’ and ‘opportunities to disclose the truth, and that he did so because it benefited him, it benefited his friends and it preserved his ability to get additional money.’”
Straw Donors Not Guilty: A federal jury in the District of Columbia acquitted two men, who the Department of Justice asserted acted as a conduit to make prohibited contributions from a global payments company to the Hilary Clinton campaign (and later to “Republican causes”). Politico notes that “To prove a criminal violation of campaign finance laws, prosecutors have to show that a defendant willfully violated the statutes, essentially that he or she knew that it was illegal to donate in someone else’s name or to exceed donation limits and did so anyway. A Justice Department spokesperson declined to comment on the verdicts.”
Another Straw Donor Indicted: CNBC reports that “A Russian oligarch linked to men previously charged with making an illegal donation to a political action committee set up for former President Donald Trump was himself indicted by a federal grand jury in New York for using those men to funnel contributions to other politicians… (He) is accused of wiring $1 million to (the straw donors) to fund the political contributions in November 2018 in advance of the elections that year.”
Washington Lobbying Sets Record: The Washington Post reports that “The lobbying industry had a record year in 2021, taking in $3.7 billion in revenue…” According to the article, “3,700 new companies and organizations hired lobbyists since start of the pandemic… The surge came as companies and associations aimed to roll back regulations on their industries — many of them pandemic-related — while others vied for a slice of the trillions in new spending.”
Pro Bono Lobbyists for Ukraine: CNBC discloses that “Lobbyists are working to connect Ukrainian officials with powerful allies in the U.S., including mayors, governors and representatives of at least one firearm’s dealer in an effort to help the war-torn country in its fight against Russia. At least one U.S. firm and a separate lawyer each recently disclosed to the Department of Justice’s FARA unit that they started pro bono work for Ukrainian government officials since the start of Russia’s invasion.”

WEEK OF March 11th, 2022

Latest Developments:

The Wyoming Legislature approved and sent to the Governor HB 49, which requires corporations and other entities that spend $1,000 or more on independent expenditures or electioneering communications to register and file reports of their activity. If signed by the Governor, the measure would take effect on July 1, 2022.
The New York Joint Commission on Public Ethics announced that its “systems have been restored and operations are resuming” following a cyber security incident. “Any filings due between February 17 and March 9 will be automatically granted an extension to March 31. Additionally, the March 15 lobbying bi-monthly report deadline is also extended to March 31.”
The Chicago Board of Ethics issued Advisory Opinion 22005.A , which lists 15 factors to be considered when determining whether “a PAC or other non-official candidate political committee is to be considered and properly and accurately treated as an additional political fundraising committee ‘of’ a City elected official or candidate for City office, thereby subjecting its contributors to the same limitations (as) contributors to the candidate’s official candidate committee…”
The California Fair Political Practices Commission announced that it has issued its annual report regarding regulatory and enforcement activity in 2021. The Commission also issued a draft opinion on the treatment of the creation and sale of non-fungible tokens as a fundraising devise for a campaign committee. The opinion holds that the entire amount of the sale should be reported as a contribution. The commission will consider adopting the opinion at its meeting this month.
The United States Department of Justice announced that a Tennessee State Representative “pleaded guilty… to a single count of honest services wire fraud, following charges filed (last week).” She allegedly set up a political mail company operated by a fictitious political consultant and received kickbacks. Axios Nashville explains that she resigned from the legislature when the charges were filed. The article infers that more indictments may be on the way.

In Case You Missed It:

Grocers Settle Record Case: The Associated Press reports that following the January decision Washington v. Grocery Manufacturers Assn., in which the Washington Supreme Court again upheld a record $18 million fine for failure to timely register and file disclosure reports in a 2013 initiative measure campaign, the association, settled “the case for $9 million, including $3 million in donations to two charities that fight hunger.”
Russian Lobbying Ended: According to Politico, “Russia’s invasion of Ukraine has done something previous tensions between Moscow and Washington could not: convince American lobbyists to turn down money from Kremlin allies. Even after the annexation of Crimea in 2014 and reports that Russia interfered in the 2016 election, the spigot of Russian money to K Street kept flowing. Over the past eight years, firms doing legal, lobbying, and PR work reported payments of roughly $18 million to do work for six Russian entities…” Roll Call further reports that some Washington law and lobby firms are “winding down, or at least reevaluating, operations in Russia…” One firm said it was “‘suspending operations in Moscow pending further developments… We will continue our efforts to provide humanitarian aid and pro bono assistance to Ukrainian refugees and others in need…”
Fine for Failure to Disclose: The Texas Ethics Commission fined a Houston official $30,000 for a “deceptive mailer supporting his run for City Council back in 2019.” The mailer inferred certain endorsements which were not true. Bay Area Houston reports that the official “paid for the mailer but did not disclose it on his ethics report… (he) claimed he had nothing to do with the mailer but receipts and emails between him and the printer show this was not true. (He also) instructed the printer to NOT include the political disclaimer ‘Political Ad Paid for by….’”

WEEK OF March 4th, 2022

Latest Developments:

The Alaska Public Offices Commission has advised us that, “In light of the Ninth Circuit Court of Appeals ruling in Thompson v. Hebdon, APOC staff issued a draft advisory opinion concerning contribution limits. Staff recommended that the limits in effect prior to those struck down as unconstitutional be revived and adjusted for inflation. On Monday, February 28, 2022, the Commission held a meeting to consider staff’s draft opinion and on March 3, 2022, issued its Final Order disapproving the draft opinion. Accordingly, until the Alaska State Legislature takes action on this issue, there are no longer any individual-to-candidate; individual-to-non-political party; non-political party group-to-candidate; and non-political party group-to-non-political party contributions limits for Alaska’s state and local elections.”
The New York Joint Commission on Public Ethics posted a statement on its website saying that it “learned that it was the target of a deliberate malicious cyberattack, specifically to the web server that houses, among other systems, JCOPE’s Lobbying Application and Financial Disclosure Statement Online Filing System… Extensions will be automatically granted for any filings that were due and could not be submitted because of the outage; those extensions will be determined once the systems have been brought back online.”

In Case You Missed It:

No Enforcement in New York: According to New York Focus, “Thousands of political campaigns have violated campaign finance law but faced no consequences, according to the official in charge of the state Board of Elections’ enforcement arm… In all, 3,451 campaigns have violated the disclosure law,” but zero enforcement actions have been brought.
Contingent Fees OK if it’s not Lobbying: The Sacramento Bee describes a practice in which two consultants “were promised a $2 million bounty fee” to get state regulators to approve an insurance company acquisition deal. Like many states, California bans contingency fee lobbying, but its lobby law only covers legislative matters, rulemaking, and ratemaking. “Lobbyists are generally forbidden from charging success fees for their work, but the payment… was legal because the work they did doesn’t qualify as lobbying under California law.”
C. Lobbying Returning to Normal: Bloomberg Government reports that “some lobbyists and industry associations are resuming their trek to Washington and have devised work-arounds to deal with continued restrictions on entering the Capitol complex… More than 50 different business groups plan Washington trips, with industry fly-ins beginning March 2, according to Ed Mortimer, a U.S. Chamber of Commerce vice president. He said these visits will be complemented with Zoom and Teams chats as well as traditional meetings with lawmakers when they are back in their home states.”
C. Lobbyists asking for Post-COVID Access: Roll Call describes an effort by the National Institute for Lobbying and Ethics to “urge Congress to… reopen (legislative buildings) to the people without appointments starting July 11, 2022… Currently, lobbyists may conduct in-person meetings on Capitol Hill, so long as a congressional aide signs them in and escorts them around the buildings.”
Oklahoma not OK with Out-of-State Influence: Oklahoma Watch reports that “Several Oklahoma lawmakers are looking to add hurdles for citizen-led groups to pass the type of state questions” that legalized marijuana, expanded Medicaid, and changed some felonies to misdemeanors. Among the proposals are measures to require a majority of voters in two-thirds of Oklahoma counties to vote for some state questions to take effect statewide; mandate background checks for petition circulators; and block out-of-state donations for initiative or referendum campaigns. The article includes an analysis of how much money in recent initiative campaigns came from out of state.
Activists Protest Lack of Lobbyist Gift Ban: A group of protesters disrupted a “Pennsylvania Press Club luncheon Monday in an effort to pressure (Pennsylvania) House leadership to take action on (legislation to ban gifts to lawmakers).” The Harrisburg Patriot-News reports “Hotel security staff and others encouraged the group to leave the room, which they did.” The article points out that the speaker is supportive, offering “kudos” to the Governor for imposing gift rules on executive officers. The protesters say they “don’t know the full extent of the gift culture in Harrisburg because while legislators only report receiving $40,000 a year in gifts, lobbyists report gifting legislators $1.5 million a year in gifts…”
Funny Money: Colorado Politics discloses that “A House staffer went into the men’s public bathroom at the north end of the (Colorado) Capitol basement and found an envelope some time overnight. Inside were checks, made out to the Senate Majority Fund, the independent expenditure committee that helps to finance Republican campaigns for the state Senate.” The envelope, with checks allegedly “in the five figures,” is “now in the hands of Senate staff.” According to the article, “Sen. Paul Lundeen of Monument, who is in charge of the majority fund, told Colorado Politics he won’t accept those checks, given that they were left “on site.” ‘It’s a best practice in my opinion’ not to accept contributions within the Capitol, Lundeen said.”

WEEK OF February 25th, 2022

Latest Developments:

The Iowa Ethics Commission issued Advisory Opinion 2022-01 permitting campaign contributions in cryptocurrency, and declaring that those contributions are to be reported as “in-kind contributions.” The currency is valued at the time of liquidation. Committees are prohibited from spending cryptocurrency on goods or services, because all expenditures must be made from a bank account in a financial institution located in Iowa.
The United States Department of Justice has published the comments it received in response to its advance notice of rulemaking in connection with the Foreign Agents Registration Act. Reuters explains that “Several large U.S. law firms have made recommendations to the U.S. Justice Department that they said will provide more clarity regarding the public disclosure requirements.”

The United States Tenth Circuit Court of Appeals, in Cowboys for Trump v. Toulouse Oliver, ruled that Cowboys for Trump is a political committee required to register with, and report to, the State of New Mexico. The court affirmed a lower court’s decision not to enjoin the Secretary of State’s efforts to enforce state disclosure laws. Among other things, the court found that the plaintiffs “have not established their donors have suffered or are likely to suffer an injury in fact due to the reporting or disclaimer requirements.”
A California State Senator introduced a B. 1367, which would “prohibit a state agency… from awarding a contract for which the state agency has not secured at least 3 competitive bids or proposals to a company that has made a behested payment at the behest of the Governor in the preceding 12 months.” The Sacramento Bee quotes the author, who said he was “concerned about the increasing use of massive no-bid contracts. I believe a transparent and accountable government is a good government…”

Reminders:

Interested persons may register here. CLE credit will be available.

In Case You Missed It:

Tennessee Lobbyist Contributions: NewsChannel 5 Nashville continues its coverage of state lobbyist activities with a report on lobbyists’ campaign contributions. “More than a decade ago, lawmakers supposedly tried to outlaw the practice.” The article describes lobbyists’ use of “bundling” contributions from others and passing on contributions from lobbyist employers and affiliated PACs, noting that “it gives them a chance to personally put the checks into the hands of the lawmakers they’re trying to influence.”

A. Fundraiser Limits: Knock LA reports that a commissioner for the Los Angeles Department of Water and Power sent out invitations to a fundraiser at her home for a city councilmember who is running for City Controller. The article points out that “it is prohibited for city commissioners to hold fundraisers for a candidate for office. It is also a violation of city ethics laws for city officials to ask someone else to make a contribution, to put their names on an invitation, to put their name or signature on a fundraising event, to use their home for a fundraising event, or to act as an ‘agent or intermediary in the making of a contribution.’” The fundraiser was held in October 2021; the councilmember “did not respond” to Knock LA.

Russian Effect on Lobbyists: According to The Hill, the Russian Invasion of Ukraine has an impact on D.C.-based lobbyists. ”Lobbying firms have terminated their contracts with the company behind the Nord Stream 2 natural gas pipeline after the U.S. imposed sanctions on the Russian firm in the wake of Moscow’s invasion of Ukraine.” The article points out that lobby firms collected a few million dollars lobbying on behalf of various parties interested in the pipeline.

WEEK OF February 18th, 2022

Latest Developments:

The San Francisco Ethics Commission published a draft measure, which it plans to place on the June 2022 ballot, that would re-write existing ethics provisions. A special meeting to hear from the pubic is scheduled for February 25. The commission also published a 12-page summary of the 126-page measure. Among other things, the measure would expand gift limitations and extend the lobbyist gift ban to permit consultants.

DuPage County, Illinois (suburban Chicago) repealed its lobby ordinance [Item 9H]. The action follows the state’s adoption of a lobby law that requires state registration and reporting for all local lobby activities, except those in the City of Chicago.

Reminders:

Interested persons may register here. CLE credit will be available.

In Case You Missed It:

“Ghost” Lobbyists Targeted in Florida: The Tallahassee Democrat reports that Citizens for Ethics Reform, which backed the amendment that created Tallahassee’s Ethics Commission, is pushing an effort to reform lobbying provisions. One member of the group asserts that the law has “a huge built-in loophole that allows ‘ghost lobbyists’ to work behind the scenes influencing city policy for their clients.” The group complains that current law has a “‘circular narrative’ in which lobbying is defined as work done by a lobbyist and a lobbyist is defined as someone engaged in lobbying.” The Tallahassee Democrat indicates that City Commissioners will consider the recommendations in March.
Tennessee Lobbyist Spending: NewsChannel 5 Nashville reveals that lobbyists and lobbyist employers spend an estimated $60 million each year “to Influence Tennessee state officials.” The article notes that over the years education and healthcare have replaced alcohol and tobacco as the biggest spenders on lobbying “because these issues have become political.”
New Mexico Lobbyist Spending: Capital & Main complains that “Lax reporting laws leave politicians and the public in the dark about legislation backers.” The article describes an effort to “require lobbyists and their employers to file much more complete expense reports and list which bills they are lobbying for or against[and] require groups to disclose how much they pay their lobbyists.”
Silver State of Affairs: Nevada Current describes conflicts of interest as “the Nevada way.” The article cites a number of recent cases of conflicts and asserts that the “Nevada Ethics Commission, charged with investigating and sanctioning conflicts, has long been viewed as a paper tiger… The Ethics Commission resolved eight complaints in 2021. All were dismissed, according to its annual report.”
Corporate Contribution Ban “Workaround”: Politico reports that despite “company bans on giving to Republicans who voted against certifying President Joe Biden’s victory on Jan. 6,” lobbyists for several of those companies “gave personal donations to Republicans who objected to the presidential election results… The under-the-radar donations meant that even as the companies stuck to their Jan. 6 pledges, their lobbyists” supported GOP lawmakers who may assume “leadership roles in the House if Republicans take back control in the midterm elections.”
Zombie PACs Still Among Us: Politico has an update on “Zombie accounts, or those that continue after a candidate retires or loses an election…” Some deceased officials left committees that are well-funded; some “left behind committees with outstanding compliance issues or unresolved IOUs.” Candidates from Herman Cain to John Lewis left PACs that have become zombies.

WEEK OF February 11th, 2022

Latest Developments:

A United States District Court judge in Georgia issued a preliminary injunction barring the incumbent Governor from spending leadership committee funds on his reelection campaign. Leadership committees are not subject to the same contribution limits as candidate committees.KTAR News reports the judge wrote “that the U.S. Supreme Court has said imposing different contribution limits on candidates competing for the same office violates the First Amendment.” The challenger’s campaign asserted the extra committee “gives [incumbent Governor] Kemp a significant and unfair fundraising and spending advantage in the primary.”
The Oregon Secretary of State rejected three ballot measures to limit campaign contributions in Oregon because the “constitution requires initiative petitions include the full text of the proposed measure.” Oregon Public Broadcasting reports that the proposals “would create new limits on how much money individuals, advocacy groups, labor organizations, corporations and political parties can contribute to candidates and causes.”
A Montana Judge struck down portions of the recently enacted SB 319. Those portions (1) required judges to recuse themselves in cases in which the received certain campaign contributions and (2) prohibited certain political activities on college campuses. The Billings Gazette explains that the late amendments “violated the state Constitution when they added sections unrelated to the original intent of the bill.” The provisions of the bill that established joint fundraising committees were not challenged.
The United States Department of Justice posted several new advisory opinions regarding the Foreign Agents Registration Act. Many of these recent opinions focus on the activities of foreign nonprofit organizations operating in the United States.
The US DOJ also issued a press release this week concerning the indictment of “[t]hree Hawaii-based executives of a government contractor…for allegedly making unlawful campaign contributions to a candidate for Congress and a political action committee.” According to The Hill, these executives skirted Federal rules prohibiting contractors from making campaign contributions by establishing shell companies and reimbursing family members for donations to a pro-Sen. Susan Collins super PAC during her 2020 election. These charges carry “up to five years in prison and a $250,000 fine on each count.”

In Case You Missed It:

Flip-flopping on Personal Use: VPM Politfac t reports on several Virginia state delegates who, in recent years, “support[ed] a bill that would have prohibited candidates from using campaign funds for personal expenses,” but which ultimately died in the state Senate. However, now in a legislative majority, these same delegates voted to kill an identical bill in subcommittee. Critics contend that the lawmakers “in the past had a ‘free pass’ in supporting the ban because they knew it would die in the Senate…[now] there’s growing momentum in the Senate for the ban this year and if the[y] supported the bill it might actually become law.”
Gifts of Legal Services Questioned: The Associated Press reports that groups are pressuring the New York Joint Commission on Public Ethics to “investigate whether former Gov. Andrew Cuomo broke the law by accepting free help from a group of former aides who worked to defend him against sexual harassment allegations.” The former Governor reportedly “turned to a team of outside advisers — former members of his administration — who provided the Democrat with strategic advice and public relations help. Several of those ex-aides worked for companies that lobby the state or have had state contracts.” But his attorney noted that “New York’s gift ban doesn’t apply to family members or friends…”

WEEK OF February 4th, 2022

Latest Developments:

The Federal Election Commission announced its “Lobbyist bundling disclosure threshold increases” for 2022. The updated FEC rules “require certain political committees to disclose information about lobbyists/registrants and lobbyist/registrant PACs whose bundled contributions within a covered period exceed” $20,200.
The Oakland, CA Public Ethics Commission issued its annual adjustment to campaign contribution limits. The limits apply per election cycle in the city.
The Ohio Ethics Commission issued a press release calling on the General Assembly to increase penalties on “persons or entities convicted of providing unlawful gifts or payments to any public official or employee in state or local government.” The proposal includes a “prohibition from participating in any future public contracts for 5 years, plus the authority for courts to order additional fines equal to the amount of such payments. Currently, such violations of this criminal law carry only a fine of up to $1,000 and/or 6 months in prison.”

In Case You Missed It:

Alaska Campaign Cash: The Anchorage Daily News reminds us that, following a court case, “Candidates in Alaska’s local and state-level elections this year will be able to collect campaign contributions triple the amount allowed in past races…” A pending Alaska Public Office Commission draft opinion proposes to return contribution limits to the prior limit of $1,500, which was the limit before the $500 limit, which was struck down. However, the Dailly News points out that “because [the $1,500 limit is] a preliminary proposal from the commission’s staff, APOC’s five commissioners could still vote to change them at an upcoming meeting.”
Nonprofit Election Money Analyzed: The New York Times looked at the 2020 election and reviewed “15 of the most politically active nonprofit organizations” affiliated with each of the two major political parties. The article notes that “nonprofits do not abide by the same transparency rules or donation limits as parties or campaigns — though they can underwrite many similar activities: advertising, polling, research, voter registration and mobilization and legal fights over voting rules.” However, the Times acknowledged its own shortcomings: “Lax disclosure rules and the groups’ intentional opacity make a comprehensive assessment of secret money difficult, if not impossible. Nonprofits come and go, adapting to shifts in political power and tactics. Some exist in the gray space between philanthropy and politics, many transfer money back and forth, and some can remain hidden in unexamined tax filings for years.”

WEEK OF January 28th, 2022

Latest Developments:

The White House announced the nomination of Dara Lindenbaum to the Federal Election Commission. Politico describes Lindenbaum as “a campaign finance attorney,” who “was general counsel to Stacey Abrams’ 2018 Georgia gubernatorial run and deputy general counsel for former Maryland Gov. Martin O’Malley’s 2016 presidential bid.”
The Massachusetts Office of Campaign and Political Finance (OCPF) issued 35 draft amended regulations concerning campaign finance. The proposed revisions make the regulations consistent with recent statutory changes, address changes in agency practice, and respond to frequently raised questions. OCPF will hold a public hearing on February 15, 2022, on the proposals.
The Arizona Court of Appeals, in Legacy Foundation Action Fund v. Citizens Clean Election Commission, upheld a $95,000 fine imposed by the Commission. The Legacy Foundation disputed the jurisdiction of the Commission to impose a fine for violating independent expenditure reporting requirements. However, the court found that Legacy failed to file a timely appeal and was precluded from challenging the jurisdiction of the Commission. com explains that the 2014 case has already been to the state’s Supreme Court with the same result.

In Case You Missed It:

Illinois Supreme Court, in Sigcho-Lopez v. The Illinois State Board of Elections, is considering whether campaign funds can be used to pay for an individual’s legal defense in a public corruption case. The court heard oral arguments on the case this week. WCIA reports that the State Board of Elections dismissed the original complaint and “said if the General Assembly wanted to enact a specific prohibition on the use of campaign funds for legal fees, they could write that into the law.”
Federal Legislative Lobbying Expected to Ebb: Roll Call reports that following another record year of lobbying, “Lobbyists say they expect a slower pace of legislative activity later this year, as the midterm elections cast a shadow over Capitol Hill. But many predict an uptick in regulatory and executive branch matters in the second year of the Biden administration.”

WEEK OF January 21st, 2022

Latest Developments:

The U.S. Senate Republican Leader filed an Amicus brief with U.S. Supreme Court in FEC v. Cruz, which seeks to strike down loan repayment restrictions in the McCain-Feingold Bipartisan Campaign Reform Act of 2002. Senator McConnell’s brief urges that “the Court should strike the entire statute.” However, Politico reports that at the oral argument, “there was little sign that the justices intend to transform the pending case into a broadside at campaign finance law.” USA Today, via MSN, explains the case and the positions taken by all sides.
The Washington State Supreme Court upheld an extraordinary campaign finance fine, in State of Washington v. Grocery Manufacturers Association. The Seattle Times, as posted on the court’s website, reports the court “upheld a record $18 million fine against a national grocery industry group for violating state campaign finance laws during a 2013 battle against a food-labeling initiative… An attorney for the grocery group, which since has renamed itself the Consumer Brands Association, said it was disappointed in Thursday’s ruling and may take its case to the U.S. Supreme Court.”

A Federal Judge struck down Montana’s Clean Campaign Act in Montana Citizens for Right to Work v. Mangan. The Helena Independent Record explains that the judge found “that the 2007 campaign practices law violated a political committee’s free speech and due process rights under the U.S. Constitution.” According to the article, the “Montana Citizens for Right To Work, a political committee that was active during the 2020 elections, in September filed a challenge to the state’s requirement that candidates and political committees give targeted candidates a heads-up on attack ads published or broadcast within 10 days of Election Day.” An attorney for the plaintiff said, “the law places an unconstitutional burden on its right to speak freely.”
The Colorado Court of Appeals , in No Laporte v. Board of County Commissioners, considered “whether campaign contributions can, under the Due Process Clause, disqualify an elected official from serving as a decisionmaker in quasi-judicial proceedings.” Legal Newsline explains that the court, relying on the U.S. Supreme Court decision in Caperton v. A.T. Massey Coal Co, “rejected claims a county commissioner should have recused himself from voting on a concrete plant permit because the company’s shareholders contributed several thousand dollars to his campaign.”
The Washington Public Disclosure Commission released proposed amended rules regarding “how commercial advertisers respond to requests for records of the political advertising and electioneering communication it provides, the format for making such information available, and the content that must be disclosed.”
The Oregon Ethics Commission latest quarterly newsletter, Ethics Matters, reminds us that a slew of amended regulations took effect on December 31, 2021, including revised rules pertaining to lobbying and gifts.

In Case You Missed It:

C. Pay-to-Play Law to Take Effect: JDSupra reports that after two years of delay for lack of funding to enforce the law, the District of Columbia’s pay-to-play law will take effect November 9, 2022. Essentially, “the ban will affect those having or seeking business of $250,000 or more with the District government,” prohibiting political contributions to covered officials.
Minimizing Risk in Corporate Political Spending: The Harvard Business Review asserts that “political donations greatly heighten corporate risk.” It argues “that corporations need to implement systematic and principled reforms to avoid future gaffes and controversies, reduce their involvement in time-wasting and costly political spending, and better align their lobbying and donations with their stated values.”
Big Money in Massachusetts: The Boston Globe reports that the “single largest political donation in state history” was recently made to a ballot measure, continuing an upward trend spike in ballot measure spending across the country.
What Happened to $400 Million in Campaign Funds: Business Insider reports on the status of the now-dormant Presidential Election Campaign Fund. The fund continues to grow with tax form check offs. Major candidates haven’t tapped the fund since 2008, but congress is unable to agree on what to do with the money in the fund.

WEEK OF January 14th, 2022

Latest Developments:

The Federal Election Commission announced adjustments to campaign fine amounts. The new penalty amounts and the formulae for calculating them are published in the Federal Register
The California Fair Political Practices Commission revealed the five largest donors and recipients of behested payments in the state over the past five years. “Behested payments” occur when “an elected official who fundraises or otherwise solicits payments from one individual or organization to be given to another individual or organization.” The FPPC also created a portal with a means to search for those payments. There is no limit on these charitable donations, but payments of $5,000 or more must be reported. The Associated Press describes the activity and provides perspective on the issues raised by the donations.
The Brennan Center for Justice notes that “There are over 8,000 local and state election officials in the United States, and the vast majority are elected.” The center vows to track those elections in 2022. “Another indication of the increased prominence of these races is a dramatic increase in the resources of one national group active in them, the Democratic Association of Secretaries of State. Only once in its history has it raised a six-figure sum in the first half of an odd-numbered year: $202,000 in 2019. But in the first half of 2021, the group took in more than $1 million. Republicans do not have a direct counterpart, but the Republican State Leadership Committee, which spends in secretary of state races along with legislative races, is also seeing an increase in funds.” Hence the regulated community may see more solicitations for these races this year, directly or through other sources.

In Case You Missed It:

Georgia Contribution Lawsuit: The Hill reports that David Perdue, who is running for Governor, has sued Georgia over a new law (SB 221) approved by the incumbent Governor “allowing those vying for governor, lieutenant governor and party leadership roles to create ‘leadership committees’ with no caps on individual campaign contributions.” The article notes that “Critics of the law have argued that it gives incumbent candidates an unfair advantage, as nonincumbent candidates must win a party primary before they can establish a leadership committee.”
January 6 Analysis: Yale Insights opines in an article, “A Year Later, Most CEOs Are Keeping Their Post-Insurrection Promises,” that, based on FEC filings, Fortune 500 CEOs continue to withhold corporate contributions from “GOP election objectors… While a handful of companies… did renege [according to some recent stories], the remarkable consistency—rather than those exceptions—should be the headline.”
Social Lobbying: The Washington Post reports about a study reported in the University of Chicago Press concerning “social lobbying.” The Post concludes that “interest groups are more likely to get what they ask for when they meet legislators or their staff socially. Much like everyone else, public officials are more easily persuaded in such settings.”
Another Suit against the FEC: The Ohio Capital Journal describes the experience of a campaign watchdog (CREW) in filing a complaint with the Federal Election Commission, having the commission deadlock on the complaint, and subsequently suing the commission itself. “The case underscores the structural deficiencies and glacial pace of campaign finance enforcement.” The case has lingered so long that looking at it “is to step into a previous political lifetime. Their main focus early on? Former House Speaker John Boehner…”

WEEK OF January 7, 2022

Latest Developments:

The Conference Board released the results of a sur vey that “reveals the environment for corporate political activity shows no signs of calming in 2022.” The report cites hot-button issues, employees, and investors as factors contributing to the tumultuous environment for corporations that engage in political spending.
The New Mexico State Ethics Commission released a proposed new Disclosure Act that would replace the current act, and require additional disclosures. The Albuquerque Journal explains that the proposal has “increased transparency requirements for lobbyists” and would require reporting “gifts of $50 or more from lobbyists…”
Elections Canada posted the annual increase to contribution limits for 2022. The chart notes that “The limits increase by $25 on January 1 in each subsequent year.” The new limit is $1,675 to each candidate, party, or leadership contestant.
The Campaign Legal Center issued a report, Top Ten Transparency Upgrades for Ethics Commissions, “to provide state and local ethics commissions with innovative transparency solutions to improve how they effectively implement their ethics programs.” The report includes specific recommendations and examples from ethics commissions around the country.
The Hawaii State Ethics Commission named Robert D. Harris as its new Executive Director and General Counsel.

In Case You Missed It:

Replacing NY JCOPE: The Governor of New York wants to replace the state’s Joint Commission on Public Ethics with a new commission run by law school deans. The Buffalo News reports that new entity would be subject to open meeting and freedom of information laws. But some things would remain the same: “like JCOPE, it would police ethics in state agencies and also be the reporting and enforcement entity of the lobbying industry in Albany.”
Delaware Ends Mandatory Campaign Fines: The Associated Press reports that a new Delaware law revises the way fines are imposed and calculated for failure to file campaign finance reports. According to the article, the change “eliminates the mandatory $50 daily fine and instead says the commissioner ‘may’ issue a citation. A citation would carry a fine of $50 a day, along with mandated training for filing reports, but the maximum fine would be capped at 100 days, or $5,000.” According to the AP, “candidates and committees owed more than $600,000 in fines for failing to file campaign finance reports just for the 2020 election cycle alone.”
Hoosier Lobbying: The Indianapolis Star names the top 25 spenders on lobbying activities over the past five years in an effort to influence the state legislature. “Most are companies or trade groups from industries that are highly regulated by state government.”
More Corporate PAC January 6 Review: Roll Call reports on the results of a webinar that looked at corporate PAC contributions, which paused for many PACs in 2021 and remain paused for some. “The political risks, and potential rewards, of corporate PACs aren’t going away this year… Some companies said they are still evaluating what to do next.”

WEEK OF December 31, 2021

Latest Developments:

The Cambridge, Massachusetts City Council approved a pay-to-play policy order, including a draft ordinance POR 2020 #240 (page 57), which prohibits contributions to city officials “in excess of the threshold of $200.00 per year within one calendar year immediately preceding the date of the contract or agreement.” The measure also applies to those seeking permits and zoning changes. However, as Wicked Local points out, the actual language is still in draft form and the “law will take effect at an unspecified date in 2022.”

In Case You Missed It:

Federal Lobbyist Diversity Questioned: According to Politico, “Members of the Congressional Black Caucus have a warning for Washington, D.C., lobbyists: Diversify your firms or you won’t have an audience with us.” The article notes that “The business community itself is pushing to diversify the ranks of people it hires to represent it in D.C., prompted by ‘clients who no longer want meetings with a bunch of old white guys,’…”
FARA Prosecution Controversy: Politico reports that a businesswoman who pleaded guilty to a FARA violation filed an ethics complaint with the U.S. Department of Justice alleging that the DOJ was actively investigating her attorney at the time her plea was “coerced.” “She is currently set to be sentenced in April, but that could be impacted by the new complaint…” The ethics complaint “threatens to roil two major cases in the Justice Department’s high-profile effort to crack down on foreign influence in the U.S. political system.”
What Happened to Oregon Contribution Limits?: The Eugene Weekly reminds us that “The voters of Oregon want campaign finance limits so much that 78 percent voted to amend the state Constitution last year [2020] to expressly allow them (Measure 107). So where are they?” The article blames the fact that Oregon “legislators were elected with more corporate money than in any other state in the U.S.” It notes that “As we go into the 2022 short legislative session, there are still no clear plans to limit campaign donations.”

WEEK OF December 24, 2021

Latest Developments:

The Cook County Board of Commissioners approved Ordinance 20-4404. The Chicago Tribune calls it the “biggest overhaul in 15 years.” The ordinance requires more disclosure; however, the “annual amount that vendors and lobbyists can donate to Cook County elected officials and candidates in non-election years would double from $750 to $1,500.” The article also notes that the county was caught unaware as a recent state law preempted portions of the county’s law and ”will be discussing the viability of seeking an exemption for the county from the state’s lobbying regulations for the next legislative session in an effort to resume County regulation.”
The Baltimore County Council approved Bill 102-21 to establish a county fund for public financing of county elections. The measure takes effect 45 days after enactment. The Baltimore Sun explains that “County executive candidates who opt into the program would not be allowed to spend more than $1.4 million in a primary or general election. Those running for council may not spend more than $150,000.”

In Case You Missed It:

Revolving Door Attacked: The Springfield News-Leader reports that a Missouri lawmaker is suing the Missouri Ethics Commission to overturn the state’s revolving door provisions that prevent him from becoming a lobbyist for two years. His federal lawsuit “alleges that his inability to register as a lobbyist to serve a prospective client was denying him income. He also argues that because the two-year restriction ‘bans (him) from saying certain things, backed by the threat of criminal prosecution,’ it is unconstitutional.”
Revolving Door Wide Open: The Oklahoman reports that “Oklahoma is one of seven states with no type of ban on lawmakers or public officials from entering the lobbying profession for a certain amount of time…” The article explains the ease of moving from state legislator or staffer to a lobbyist position. It notes that the Oklahoma “Ethics Commission voted twice in recent years to establish ‘cooling off’ laws that would ban public officials from moving straight into a lobbying job. But each time those rules were voted down by the state Legislature.”

New York State Reforms: According to The City, “Gov. Kathy Hochul plans to overhaul the state government’s ethics agency as she runs for election and tries to distance herself from scandal-wrecked former governor Andrew Cuomo…” The article quotes a spokesperson for Hochul, who said that “the governor ‘is committed to instituting real ethics reforms and restoring trust in government, and we will continue to work with legislators and good government groups to reform JCOPE and improve ethics oversight to better serve New Yorkers.’”
SF Fraud Case: The San Francisco Chronicle reports that the former San Francisco Public Works Director agreed to plead guilty two years after his initial arrest in what prosecutors “called ‘a long-running scheme involving multiple bribes and kickbacks’ during his term as head of Public Works.” In the deal, he admitted to receiving “money, international trips, expensive jewelry, high-end wine and other goods and services from city contractors and developers in exchange for preferential treatment and confidential information about city business.”

WEEK OF December 17, 2021

Latest Developments:

The New York Joint Commission on Public Ethics ordered former Governor Cuomo to repay money he earned from a book deal. NPR explains that the Governor “promised it would have nothing to do with the ins and outs of his role as the state’s leader. He also pledged to write it on his own time and without tapping into any of the state’s vast resources. But New York’s Joint Commission on Public Ethics says that’s not at all what happened…” An attorney for the former Governor said that the commission’s actions “‘exceed its own authority and appear to be driven by political interests rather than the facts and the law…’”
U.S. Representative Jamie Raskin introduced HR 6283, which would “apply the ban on contributions and expenditures by foreign nationals under [the Federal Election Campaign Act of 1971] to foreign-controlled, foreign-influenced, and foreign-owned domestic business entities.” The Hill explains that the reintroduction of the House measure “would block foreign-owned corporations from spending company funds to influence U.S. elections”

The Dallas City Council approved an ordinance in response to corruption issues in city government. The Dallas Morning-News explains that the City Council approved several of the Mayor’s proposals to “strengthen transparency and accountability to residents as well as make reporting ethics violations and rules more clear.” The package creates an Inspector General in the City Attorney’s Office, bolsters ethics training, expands conflict-of-interest rules, bans those seeking public subsidies from lobbying for them, and expands the Ethics Advisory Commission. The ordinance also includes a $300 annual limit on gifts from lobbyists. The measure takes effect immediately, with some exceptions.

The City of Portland Open and Accountable Elections Commission adopted new regulations governing its Small Donor Elections Program. The program caps small contributions at $250, but permits seed money contributions of $500, and allows loans and in-kind contributions of up to $5,000 under certain circumstances.
The Delaware County (adjacent to Philadelphia), Pennsylvania Council approved Ordinance 2021-13, which requires county contractors to disclose campaign contributions with their bid and annually thereafter. The measure applies to contracts that require County Council approval ($50,000 or more) beginning April 1, 2022.

In Case You Missed It:

The Federal Election Commission selected Allen Dickerson as its chair and Steven T. Walther as its vice chair for 2022.
Coffee Brews Campaign Cash: The Miami Herald explains that Tampa General Hospital, a 501(c)(3) charity, is prohibited from making political donations, but three of its top officers run a for-profit coffee company that operates a Starbucks and another coffee house in its hospitals. The coffee company has given over $300,000 since 2019 to its PAC, the Friends of Tampa General Hospital, which has doled out the cash to politicians in the state. “Two campaign finance experts told the Herald/Times that there didn’t appear to be anything illegal or improper about the hospital-related coffee business’ donations.”
January 6 Contributions: According to The Hill, the “nation’s biggest companies have steadily ramped up their donations to GOP lawmakers who voted against certifying the 2020 election results… Corporate America expressed concern about the state of U.S. democracy after supporters of former President Trump attempted to overturn the election results. But companies have signaled they don’t want to lose influence with the GOP, which is broadly favored to win back control of Congress in next year’s midterm elections.”
Colorado Group Fined: Colorado Public Radio reports that the Colorado Secretary of State’s Office fined a group $40,000 for failure to reveal its donors. “Critics of the group argued that Unite for Colorado crossed the line between nonprofits and political groups. A complaint filed in August 2020 argued that the group was spending so heavily — and was so closely involved in politics — that it should have registered as a political issue committee and reported more detail on its financial activities.” The group spent “about $4 million on three different ballot initiatives,” and is affiliated with Unite for Colorado Action IEC, which supports candidates.
$25,000 Fine for Personal Use: The Associated Press reports that a Georgia Appeals Court Judge agreed to a $25,000 fine after he “used campaign money to pay for trips to Hawaii and Israel.” He had also been accused of “transferring money from his old legislative campaign account to financially prop up his former law firm between 2015 and 2019.” A former legislator, the judge is suspended during judicial disciplinary hearings.

WEEK OF December 10, 2021

Latest Developments:

The United States Department of Justice announced that it is “considering changes to key regulations” with an intent to “modernize and clarify the scope and meaning of [the] Foreign Agents Registration Act (FARA).”While the DOJ does not offer specific language, it has posted a notice describing portions of the regulations that it intends to update.
The San Francisco Board of Supervisors unanimously approved an ordinance to limit behested payments. The ordinance would prohibit “elected officials, department heads, commissioners, and designated employees from soliciting behested payments from interested parties.” The measure would take effect 30 days after approval by the mayor

In Case You Missed It:

Campaign Finance Disclosure Upgrade: The Arkansas Democrat-Gazette reports that “state lawmakers and the Arkansas secretary of state’s office are taking steps to procure a new computerized system [‘for tracking political campaign contributions and expenditures’]at an estimated cost of $750,000 to $1 million.” The current system has been described as “‘clunky,’ ‘tedious,’ ‘not user-friendly,’ ‘inaccurate,’ [and] ‘antiquated.’” However, the new system “isn’t expected to be in place until after the November 2022 general election.”
Group Sues FEC over Disclosure: A Wisconsin group filed a lawsuit against the Federal Election Commission “seeking to strike down campaign finance regulations that it says limit its free speech rights.” According to the Milwaukee Journal Sentinel, the group “was reluctant to spend money in two congressional races because it feared the Federal Election Commission would try to force it to disclose the names of its donors.”
Four Years for Scam PACs: According to the Washington Post (via MSN), a Las Vegas man who operated both pro-Trump and pro-Biden PACs, as well as obtaining fraudulent Paycheck Protection Program loans was sentenced to 4 years in federal prison. He “copied his ads, website and online donation page from legitimate digital fundraising groups.” He raised nearly $350,000, “mostly in small amounts.”

WEEK OF December 3, 2021

Latest Developments:

The Center for Political Accountability released the 2021 CPA- Zicklin Index of Corporate Political Disclosure and Accountability. Roll Call quotes the Center’s President as saying that “‘companies are moving in a turbulent political climate to better manage the risks of spending to sway elections.’” The article reports an increase in corporate board committee review of political contributions and expenditures, and voluntary disclosure by tax-exempt organizations that are not otherwise required to disclose detailed activity.
The California Fair Political Practices Commission adopted new regulations to permit the use of electronic signatures on filings with the Commission, updating lobbyist recordkeeping, and regarding disclosure of expenditures for amplification of online communications.

Reminder:

COGEL, the Council on Governmental Ethics Laws, begins its annual conference on Monday, December 6 at 1:30 p.m. EST, in a virtual format. Interested persons may register here. The three-day conference is $400 for members ($1,000 for nonmembers) and includes live presentations via Zoom. The interactive conference offers an opportunity to hear from regulatory authorities throughout the country, including the Chair of the Federal Election Commission. Classes may qualify for CLE. “COGEL is a professional organization for government agencies and other organizations working in ethics, elections, freedom of information, lobbying, and campaign finance.”

In Case You Missed It:

Missouri Money: The Missouri Independent reports that a Missouri lobbyist has drawn scrutiny from his setting up multiple PACs that his corporate clients support. “Corporations are banned from giving directly to candidates in Missouri. And contribution limits cap how much a candidate can take from an individual or PAC. Setting up multiple PACs opens the opportunity to skirt those regulations.” One watchdog opined that “‘This appears to be a way of cleverly exploiting a loophole in campaign finance law…’”
Contribution Ban Debated: According to the Arizona Mirror, the Arizona Corporation Commission has rejected assertions by the Legislative Council that “a provision of the [commission’s] ethics policy limiting commissioners’ ability to vote on matters involving utilities that have provided funding for their campaigns, overstepped the commission’s legal authority by prohibiting its members from participating in their official duties.” The code was “enacted in response to high-profile and controversial campaign spending” by a utility in 2014 and 2016.
North Dakota Rules Debated: The Bismarck Tribune reports on the North Dakota Ethics Commission’s efforts to adopt regulations concerning conflict of interest for quasi-judicial proceedings. Critics voiced objections to excluding campaign contributions from the definition of “significant financial interest,” thereby permitting members of the Industrial Commission and the Public Service Commission to accept contributions from those they regulate.

New Jersey Ponders IE Disclosure: Insider New Jersey describes the concern of the Executive Director of the New Jersey Election Law Enforcement Commission over the explosion of independent expenditures in New Jersey Elections. The article points out that the groups “are required to disclose only their expenditures, not the source of their money.” The commission’s “proposed reforms that would strengthen accountable political parties and bring parity between them and independent groups.”

Pardon Lobbyist Failed to Register: The Daily Beast reports that a former Department of Justice Official “was directly involved in White House clemency negotiations possibly as late as Trump’s last full day in office, but never registered as a lobbyist while advocating for pardons…” The official was listed in a filing as an “advocate” and received “$400,000 last year in unspecified “consulting” fees.” The article quotes a Common Cause spokesperson who opines that “the laws surrounding lobbying for pardons specifically are fuzzy… [however,] a number of Trump lobbyists saw fit to disclose that work.”

Candy does not Influence: The Wisconsin State Journal discloses that the Madison, Wisconsin Ethics Board ruled that when the assessor gave candy to members of the (property tax assessment) Board of Review prior to a hearing on reassessment of two multi-million dollar properties, she “did not violate ethics laws.” City and state ethics laws “prohibit providing “anything of value” to members of a public body if it could reasonably be expected to influence a vote or decision.”
Et Tu, Brute?: The State (Columbia, SC) reports that the South Carolina Ethics Commission found that a candidate “spent thousands of campaign dollars on personal expenses… all while his campaign repeatedly failed to report details about who was contributing to his gubernatorial bid… [T]he S.C. Ethics Commission began investigating the Charleston businessman after one of [his] own campaign aides filed a complaint…”

WEEK OF November 19, 2021

Latest Developments:

The Governor of New Jersey approved A 227, which requires members of the Drug Utilization Review Board to disclose gifts from the pharmaceutical industry as well as other financial interests members have in that industry. The measure took effect immediately.
The Governor of Illinois signed SB 536 which, among other things, provides that in judicial elections a “political committee may not accept contributions from any group that is not required by law to disclose the identity of its contributors or accept contributions from any out-of-state source.” NPR Illinois explains that the sponsor indicated that “the legal community and scholars” are “progressively worried about undue influence in judicial elections, especially appellate and supreme court justices whose terms last a decade.” The measure took effect immediately.

The Texas Ethics Commission published its proposed changes to a variety of rules, including changes to campaign finance and lobbyist reporting thresholds. The rules also authorize cryptocurrency contributions. The Commission voted to propose the rules in September; the new rules would take effect January 1, 2022.

In Case You Missed It:

New Pennsylvania Lobby Reporting “Useless”: Lancaster Online reports that “Lobbyists and lobbying firms are for the first time disclosing their financial interests in companies for which they lobby…” However, the article characterizes the disclosures as “haphazard and, arguably, useless…” The article points out that “Amid a narrow reporting period and few guidelines, lobbyists interpreted the new requirement in a variety of ways.”

Behested Payments Lead to Indictment: Two more individuals were indicted in the continuing corruption inquiry at San Francisco City Hall. According to the San Francisco Chronicle, one former official “asked his clients to make charitable contributions to San Francisco Golden Gate Rugby Association ‘intending that those donations would influence’ then- San Francisco senior building inspector Bernie Curran ”in the performance of his official duties…”

No Book Deal: The New York Joint Commission on Public Ethics, at its monthly meeting, voted to revoke its staff’s informal advisory opinion that granted approval for former Governor Cuomo to publish a book while in office. Politico explains that the opinion conditioned its approval on the Governor’s promise “not to use state resources or personnel on the lucrative endeavor. News has since emerged that state employees did help with the book…”

Loans as Contributions: According to USA Today, the Federal Election Commission accused a U.S. Senator’s campaign “of accepting millions of dollars of potentially improper loans…” The Senator’s campaign countered that “all the loans and contributions were legal.” The issue, as described by the article, is that “Most of that money came from financial institutions ‘that did not appear to be made in the ordinary course of business’ because the banks were not assured repayment. FEC auditors said that means they appeared to be prohibited contributions from financial institutions.”
Secret Lobbyist Fines: The Albany Times-Union reports that the New York Joint Commission on Public Ethics.
acknowledges that it has collected over $250,000 in fines from lobbyists for late reports. However, “officials will say little else about the program, including which lobbyists have faced penalties, why they’ve been fined – or why their staff chooses to forgive certain fines. The secrecy of the program makes it difficult to know whether the ethics agency is enforcing the rules evenhandedly…”

WEEK OF November 12, 2021

Latest Developments:

Federal Contractor Relieved: A company accused of violating the prohibition against federal contractor contributions can rest more easily. Bloomberg Government reports that, after months of investigation, the Commission essentially came to the same conclusion as in a prior case and declined to find probable cause of a violation under the circumstances. The article questioned whether “a company giving money to a super PAC doesn’t have to be ‘separate and distinct’ from one having government contracts.” However, a detailed statement by the three Republican commissioners offers the reasoning behind the decision, criticizes the test proposed by commission attorneys for determining when a company or its affiliate hold a government contact, and questions whether the prohibition would survive a court challenge in regard to Super PAC contributions. The decision does not immediately impact other recent enforcements against corporations contributing to federal Super PACs.

A Federal Election Commission draft audit report accuses Senator Mike Braun’s 2018 campaign of “receiv[ing] ‘apparent prohibited loans’ and lines of credit totaling $8.5 million. Most of that money came from financial institutions ‘that did not appear to be made in the ordinary course of business’ because the banks were not assured repayment.” As USA Today reports, Braun contends that “it’s not abnormal for ‘creditworthy’ individuals such as Braun to get unsecured lines of credit” and that the banks did not provide the loans “for the purpose of influencing the outcome of the Candidate’s candidacy…[but] in their own commercial interests.”

The Washington Public Disclosure Commission released the text of its proposed amendments to regulations regarding digital political advertising disclosure. The Commission describes the changes as: “Permitting additional time for a commercial advertiser to respond to a request for inspecting records, where the sponsor has not identified an order as political advertising; Requiring the commercial advertiser selling the ad to provide its own identification with the ad if it is published on another platform; and Clarifying the scope of demographic information a digital advertiser is required to maintain for public inspection.” A hearing is set for December 2. Comments are due by November 29, 2021

The San Francisco Ethics Commission released its draft ordinance and regulation amendments in its efforts to restrict gifts to public officials from restricted sources. The proposal is a response to a federal investigation of City Hall and charges that “allege numerous instances in which individuals seeking favorable outcomes from City government provided meals, travel, luxury goods, and other gifts in an attempt to influence the actions of City officers and employees.” A hearing is scheduled for December 2.

In Case You Missed It:

PAC Impersonators: Federal prosecutors indicted PAC administrators for allegedly “us[ing] the name and likeness of Donald Trump and other politicians to ostensibly raise money for a network of political action committees.” Yet, as Politico reports, of the $3.5 million raised leading up to the 2016 election, only $19 was distributed to candidate or any political purpose. The indictment, which was unsealed on Wednesday, “charged [Matt] Tunstall and Robert Reyes with conspiracy to commit wire fraud and to lie to the Federal Election Committee.” Prosecutors also indicted Tunstall with additional “counts of wire fraud and money laundering” and a “third associate…with conspiracy to commit wire fraud and to lie to the FEC and multiple counts of wire fraud.”

Corporate America Coming Back to the GOP: According to Politico, Republican lobbyists say that “big business is warming up to the Republican Party again, less than a year after Jan. 6 but with the 2022 elections in sight.” Recent election results “ignited interest from their corporate clients on making inroads with GOP officials on the Hill.”
Double Barreled Donations: The Milwaukee Independent reports that two PACs affiliated with a prominent second amendment group allegedly made $35 million in coordinated illegal campaign contributions to various candidates for federal office. A suit filed this week in federal court claims that the PACs “and the [federal candidate] campaigns us[ed] the same political messaging firms to disguise coordinated campaign activity as independent advertising.” The lawsuit contends that the firm is actually one company operating under two names and was employed to “coordinate, create and place complementary advertisements — exactly the type of coordination that is not supposed to be allowed between campaigns and outside groups.”

WEEK OF November 5, 2021

Latest Developments:

The Federal Election Commission determined, in MUR 7523, that foreign corporations may contribute to ballot measure campaigns if not otherwise prohibited by state or local law. The facts presented to the Commission indicate that a Canadian subsidiary of an Australian mining corporation contributed to oppose a Montana ballot measure that affected permits for hard rock mines. The analysis states that federal law prohibits foreign nationals from “making a contribution or donation of money or other thing of value, or an expenditure, independent expenditure, or disbursement, in connection with a federal, state, or local election.” However, it points out that the Federal Election Campaign Act of 1971 regulates “‘only candidate elections, not referenda or other issue-based ballot measures.’” The matter, approved on a 4-2 vote, was disclosed by Axios.

The Alaska Public Offices Commission released Advisory Opinion 21-09-CD, which asserts that because the Ninth Circuit Court of Appeals case (Thompson v. Hebdon) case is now final, Alaska should revive the contribution limits in place before the limits struck down by Thompson were enacted. In other words, commission staff believe the case did not result in no limits on contributions, but rather a return to the prior limits, as adjusted for inflation. The new (old) limits are “$1,500 per calendar year for individual-to-candidate and individual-to-group; and $3,000 per calendar year for non-political party group-to-candidate and non-political party group-to-non-political party group.” The commission must approve the opinion; its next meeting is on January 26, 2022.

In Case You Missed It:

Giffords Takes Aim at NRA (and FEC): Politico reports that “the gun control advocacy group founded by former Rep. Gabby Giffords, sued the National Rifle Association” accusing “the NRA of using shell companies to coordinate about $35 million of election spending illegally by running ad buys through what was actually a common vendor, in violation of FEC rules.” The case arose because the Federal Election Commission was not able to comply with a federal court order to take action on the original complaint filed with the commission. “It’s a rare instance of a defendant being authorized to pursue legal action against an alleged violator of campaign finance law directly,” which Giffords observed. A spokesperson piled onto the FEC asserting that there is a “systematic problem” of not enforcing campaign finance laws although, with a quorum, the agency has started acting on backlogged enforcements.

“Loophole” Gifts: Following a recent report by the San Francisco Ethics Commission on city gift laws, KQED reports that San Francisco “officials got free tickets to [the] pricey Outside Lands fest through [an] ethically questionable loophole.” The festival organizer gave the tickets to the city Parks and Recreation Department, which in turn distributed them to officials; current law prohibits the organizer from gifting the tickets directly to officials.“(W)hile the practice follows the letter of the law, it most certainly flouts the spirit of the law, particularly given the sheer number of free tickets doled out. Between 2015 and 2019 — the last year the festival took place — the department distributed some 1,855 free tickets [valued at over $430,000] to public officials across the city, including department staffers and employees in other city departments.”

Straw Donors Lining Up: Following the conviction of Lev Parnas, Open Secrets has a rundown on pending foreign national straw donor cases, noting that “other prosecutions in similar cases are just beginning.” Two groups of cases are working their way through the justice system, one involving contributions from a Lebanese-Nigerian billionaire, and one involving contributions from a “Russian national” and a “Chinese national.”
Pay-to-Play Plea: The Morristown Daily Record (New Jersey) reports that an attorney pleaded guilty to “operating a brazen pay-to-play scheme by recruiting others to donate $250,000 to political players in several counties, all in an effort to nab lucrative taxpayer-funded legal contracts” He “admitted he and ‘another attorney’ used a straw donor scheme, which are set up so individuals or companies barred from giving political contributions can do so without tipping off the authorities. Donors contribute instead and then they get reimbursed, which is illegal.”
Electric Utility Expenditure Generates Skepticism: According to the Washington Free Beacon, a U.S. Senator asked a Virginia electric utility that serves most of the state whether it made the candidate [Terry McAuliffe] aware “of the $250,000 it spent on his behalf, and whether anything was promised in return for the spending blitz.” The action follows a report in Axios that disclosed the spending by Dominion Energy. The Free Beacon reports that “Dominion apologized after the spending effort was revealed by Axios …”

WEEK OF October 29, 2021

Latest Developments:

The U.S. Ninth Circuit Court of Appeals determined that it will not rehear Thompson v. Hebdon, after the request for a new hearing was withdrawn. The action leaves in place the court’s decision this summer overturning certain Alaska campaign contribution limits. The Anchorage Daily News explains that the state did not support a judge’s call for an en banc hearing to review the decision because “further legal action could result in a stricter decision that reduces the Legislature’s ability to pass new limits.”

The Cincinnati City Council unanimously approved two ordinances – one limiting campaign contributions and another creating an ethics manager – following a corruption scandal last year. The first ordinance prohibits “the solicitation or acceptance of campaign contributions from persons having a financial interest in City business while that business is pending before Council.” The second ordinance creates “a new position of ethics and good government counselor within the Department of Law to support ethics, election, and campaign finance efforts.”

In Case You Missed It:

Investing in Politics: CNBC reports that “Private equity and hedge funds accounted for over $625 million in political spending during the cycle leading up to the 2020 election, with the lion’s share going to campaign contributions…” According to the article, the amount “was the most this segment of the financial industry spent on lobbying and campaign contributions in a two-year campaign cycle…”

Contributions Linked to No-Bid Contracts: According to the Denver Gazette, Colorado campaign contributors have benefited from contracts paid for with “custodial funds” controlled by constitutional officers. “A spokesperson for [the Colorado Attorney General] confirmed that $262,000 in no-bid contracts went to firms headed by a handful of attorneys who made large campaign contributions to [the Attorney General’s] campaign.” In addition, the Secretary of State “sent $2.8 million in federal emergency COVID-19 mitigation funds — “almost half of the CARES Act cash allocated to her office — to a politically well-connected, Washington D.C.-based public relations and lobbying firm to produce a set of TV ads…”

Campaign Contribution Conviction: CNN reports that “Lev Parnas was convicted on six counts related to ‘influence buying’ campaign finance schemes… The Ukrainian businessman was also convicted for using money from Igor Fruman – who previously pleaded guilty — and a fake company to funnel hundreds of thousands in political contributions to GOP and pro-Donald Trump committees and then lying about it to the Federal Election Commission.”
Federal Campaign Finance Indictment: The Associated Press reports that a federal grand jury indicted a Tennessee State Senator for violating campaign finance laws. The S. Department of Justice explained the Senator and an associate “conspired with others to violate federal campaign finance laws to secretly and unlawfully funnel ‘soft money’… to his authorized federal campaign committee. [The Senator] and others also caused a national political organization to make illegal, excessive contributions to [his] federal campaign committee by secretly coordinating with the organization on advertisements … and to cause false reports of contributions and expenditures to be filed with the Federal Election Commission.” The lawmaker called “the charges a ‘political witch hunt.’”

WEEK OF October 22, 2021

Latest Developments:

The FBI announced this week the indictment of US Rep. Jeff Fortenberry “on federal charges that he lied to the FBI and concealed information about illegal campaign contributions that he accepted from foreign sources.” Fortenberry denies the charges, stemming from alleged “illegal contributions that his 2016 campaign received from a Nigerian-born billionaire named Gilbert Chagoury who lives in Paris.” According to the Lincoln Journal Star, “Chagoury allegedly arranged for $30,000 in cash to be contributed to Fortenberry’s campaign through other individuals during a fundraising event in Los Angeles.”

The California Fair Political Practices Commission approved, with minor adjustments, staff-proposed regulations concerning so-called behested payments. CalMatters reports that rules come after a one-and-a-half-year debate about the trend of “politicians increasingly us[ing] charitable organizations to raise and spend money outside the limits of the state’s strict campaign finance laws.” The rules clarify when elected officials, and CPUC commissioners, truly “behest” and require increased disclosure of lawmakers’ ties to nonprofits, including when the official has an employment or controlling relationship with the nonprofit, any relationship with a member of their immediate family, or member of their campaign or officeholder staff, and when the payor of a behested payment is involved in a proceeding before the official’s agency. The regulation also seeks to force disclosure of the identity of donors utilizing “donor advised funds.” Overall, the rules require more diligence by officials soliciting payments and do not place new obligations on donors. California has not followed the lead of other states that restrict behested payments by certain sources or in particular circumstances. The Commission made clear that only the Legislature can change the law surrounding these payments.

Pennsylvania Senate Leaders have introduced an ethics reform package “that would impose new requirements for lobbyists and political consultants to avoid conflicts of interest and define the relationship between lawmakers and those who try to influence them.” The package comes nearly a year after the Senate president was exposed for taking a trip to Arizona “organized by…a Harrisburg-based firm that helps fundraise for elected officials…and lobbies officials once they are in office.” Among the changes proposed include “requir[ing] lobbyists to register clients seeking state funding…bar[ing] state agencies from hiring an outside firm or lobbyist to lobby any branch of government…prevent[ing] lobbyists from being registered political consultants and prohibit political consultants from lobbying a state official,” and a one-year revolving door restriction.

In Case You Missed It:

Recalling Campaign Donations: Court filings by the Michigan Secretary of State indicate that Gretchen Whitmer will have to dispose of donations she raised outside of the normal limits in preparation for a potential recall. Detroit News reports that Whitmer raised $3.4 million under a “state policy on recalls…[allowing] contributions, above the normal $7,150 limit on individual donors.” However, since a recall is unlikely to qualify before the last year of Whitmer’s term when it could not legally transpire, the excess funds must be returned or donated. Still, “[a]n important question will be what [she]…eventually does with the excess funds… If they’re donated to a political organization, they could still be used to benefit the governor’s reelection.

Funds for me but not for thee: The Seattle Times editorial board opines on a 2019 campaign finance loophole drafted by City Council President M. Lorena Gonzalez which now directly benefits her as she runs for Seattle mayor. The “ordinance, which restricts business contributions to city political races for being ‘foreign influenced,’” still imposes few corresponding restrictions on contributions from labor unions. The Times contends that the ordinance “threshold for ‘foreign-influenced’ is…low [given that it captures] any foreign person [who] owns 1% of a company’s stock — or if total American ownership falls below 95%.”
Rocky Mountain Campaign Finance Complaints: Boulder (Colorado) residents resubmitted a campaign finance complaint against a City Council member after their initial complaint was dismissed on technical grounds. The residents allege Council Member Steve Rosenblum “exceeded the city’s expenditure limits when he sought legal assistance to research, prepare and file a lawsuit against…a group of community members.” By participating in the municipal matching funds program, Rosenblum agreed to abide by spending limits, yet the citizens contend that “[p]aid work in support of a candidate’s campaign for public relations, investigative work and/or legal fees” must be considered “a campaign expense just as surely as the purchase of yard signs and printing costs are” and, thus, Rosenblum exceeded the legal spending limits.

WEEK OF October 15, 2021

Latest Developments:

The Governor of Illinois signed SB 539. The comprehensive ethics reform bill expands lobbyist registration and reporting to include lobbying local government, and revises provisions relating to procurement, revolving door restrictions, and campaign contributions. The measure takes effect on January 1, 2022.

The Alaska Public Offices Commission imposed a fine of $38,500 against the Mayor of Anchorage’s campaign committee for violations of campaign contribution and disclosure laws. The Midnight Sun explains that the fine was imposed “for a repeated pattern of incomplete and misleading reports that had the result of never giving the public a clear picture of campaign was up to until well after he won office… The final report takes note of the ‘pervasiveness of the violations’ and how ‘despite filing a total of seventeen amendments to the four reports, Bronson for Mayor never fully complied with its reporting obligations.’”

The New Mexico Secretary of State issued its 2020 Campaign Finance Random Examination Report. According to the Associated Press, “After a four-year hiatus, state election regulators have resumed spot-checks on campaign finance disclosures by politicians, election candidates and political committees, with 10 accounts referred to New Mexico’s fledgling State Ethics Commission and state prosecutors for possible enforcement action.”

In Case You Missed It:

SEIU Chief Charged with Embezzling Campaign Funds: The Sacramento Bee reports that the California Attorney General charged the Executive Director of Service Employees International Union California with “multiple counts of tax fraud, embezzlement, perjury and failure to pay unemployment insurance taxes.” The charges stem from an investigation started by the Fair Political Practices Commission into an “allegation that [she] as treasurer for a 2014 state senate campaign directed spending to her husband for campaign services he did not provide.”

Matriculation on the Government Dime: The Associated Press reports on corruption allegations involving a father-son pair of former state legislators. The father, now a Los Angeles City Councilmember and a former Los Angeles County Supervisor, “promised to steer millions of dollars in [Los Angeles County] contracts to the [University of Southern California] if his son got a scholarship and a teaching job.” The Dean of USC’s School of Social Work promised “a full-tuition scholarship and a paid professorship, and concocted a scheme to funnel $100,000 in [the father’s] campaign funds through the university ‘to a non-profit to be operated by the [son]’…” The U.S. Department of Justice statement on the matter notes that the latter kickback scheme “violated multiple university policies regarding the funding of nonprofits”; the DOJ also indicted the now former dean on corruption charges. The DOJ did not charge the son, who resigned from the legislature in 2017 following sexual harassment allegations.

Campaign Finance Trial Begins:Reuters notes that the trial of Lev Parnas began in New York City this week, with the prosecutor alleging that he “used $100,000 from a wealthy Russian businessman to make illegal donations to U.S. politicians.” The New York Times frames the arguments of the two sides with the questions, “Was Lev Parnas a businessman who cared about energy independence and marijuana legalization? Or a conniver who flouted campaign finance laws?”

No Guns, No Government Contracts: The Dallas Morning News reports on the impact on banks of a new Texas law that bans state and local governments from doing business with vendors “that limit business with the firearms industry.” SB 19 requires companies with government contracts of $100,000 or more to certify that they do not discriminate against a “firearm entity or firearm trade association.” The measure took effect September 1, 2021.

Beware Scam PACs: The Daily Beast reminds us that scam PACs are still operating, navigating in a gray area. Those organizations purport to support a political cause but the money “goes almost entirely to telemarketing and consulting outfits… One way to identify a scam PAC is by comparing how much money they spend on ‘operating expenses,’ which go to overhead, fundraising, and administrative costs, with how much they spend on ‘independent expenditures,’ which go to support candidates. These groups all report vast discrepancies between those two types of payments, spending nearly all their money on ‘operating expenses’ to sketchy companies, and hardly any on politics.”
Federal Prison for Contract Kickback: The Associated Press reports that a federal judge sentenced a former Indiana Mayor to 21 months in federal prison for accepting what the former Mayor called a “payment for consulting work” and that his attorney called a “gratuity.” A trucking company paid him $13,000 “in return for steering about $1.1 million in city contracts to the company.”

WEEK OF October 8, 2021

Latest Developments:

The Georgia Government Transparency and Campaign Finance Commission approved an increase in contribution limits. The new limits are: $7,600 for each primary and general election for statewide offices, $4,500 for each runoff election for statewide offices, $3,000 each for primary and general election for legislative and local offices, and $1,600 for each runoff election for legislative and local offices. The amounts are in the aggregate, per election cycle. The increases are effective immediately.

The New Hampshire Attorney General issued “guidance on our interpretation and enforcement of our State’s lobbyist laws related to reporting.” The guidance focuses on in-house lobbyists and provides that “permitting an individual or entity to avoid registration and reporting simply because the nature of his/her/its employment is primarily for a non-lobbying purpose would frustrate the intent of the statute.”

The New York Joint Commission on Public Ethics has another new Chair this month, Jose Nieves, who is a criminal defense attorney from Queens. The Commission held a meeting almost exclusively in executive session and, when it returned to public session, announced that it had retained independent counsel to “conduct an inquiry into the legal and procedural operations of the Commission.”

The San Francisco Ethics Commission issued its report on Gifts to City Departments. The Commission’s review of gift laws comes “In light of the recent corruption allegations brought by federal and local agencies against City officials and contractors…” The recommendations in the report largely center on further limiting gifts from “restricted sources” and requiring additional disclosure. Specifically, the recommendations are aimed at prohibiting gifts to any city official that pass through an intermediary from what is otherwise a restricted source for that official.

Reminder:

In Case You Missed It:

Resignation for Campaign Finance Violations: According to ABC13 WHAM, the Mayor of Rochester, New York resigned from office, effective December 1, as part of a plea agreement in which she pleaded guilty to a misdemeanor charge of “accepting donations over the state limits in (her) 2017 re-election campaign.” Her attorney “said any mishandling of campaign funds was not intentional.”

Campaign Committee and Lobbying Don’t Mix: The Columbia Missourian reports that the Missouri Ethics Commission told the current Mayor of Columbia, who is also a registered lobbyist, to “terminate his campaign committee.” The Mayor is not running for reelection, and state law “requires that registered lobbyists must dissolve their candidate committees and that the campaign money should be returned to donors or contributed to a nonprofit group or political party committee.”

Oregon Congressional Candidate’s Funds Questioned: According to ABC News, a former Member of Congress, who lost in 2020, donated leftover campaign funds to a veteran’s nonprofit that he created. Instead of aiding veterans, the money has been used to nurture his “political ambitions, providing $65,000, records show, to his 2022 bid for a rematch with longtime Democratic Rep. Peter DeFazio.” According to the article, “the transfer of $65,000 from [his] nonprofit to his campaign was listed as a ‘refund’ in filings…”

Georgia Rethinks Ban on Campaign Funds for Security: The Georgia Recorder notes that “seven years ago, the state ethics commission ruled candidates and officeholders could not use campaign funds to help secure their homes.” However, following several serious incidents, including what one official described as “a torrent of abuse, attacks & death threats,” the Georgia Government Transparency and Campaign Finance Commission appears ready to approve a new advisory opinion at its next meeting in December permitting the use of campaign funds for home security.

Free Lunch Program: The Associated Press reports that “Free lunches earn business access to New Mexico lawmakers.” New Mexico legislators receive no salary; they only receive a per diem for travel expenses. As a result, “staff and legislators depend on food during the legislative sessions and interim committee hearings.” The article notes that the buying legislators’ lunch is “a legal and a frequent practice that some people find unappetizing.” But one watchdog group explained that “as long as they are disclosed, it’s legal for companies to buy legislators lunches and give gifts.”

WEEK OF October 1, 2021

Latest Developments:

The United States Supreme Court agreed to hear Federal Election Commission v. Cruz, a case that challenges the limit on the amount of personal loans that can be repaid to a candidate. Current law limits loan repayments to candidates at $250,000 from money raised after an election. The case raises the issue of whether the rule violates the Free Speech Clause of the First Amendment. Reuters explains that the “case involves a provision of a 2002 campaign finance law that limits the amount of money that candidates can accept from donors after an election as they try to recoup money they personally lent to their formal campaign organizations.”

The Governor of California signed a series of bills that affect the Political Reform Act. SB 686, requires a limited liability company that qualifies as a committee under the Act to disclose its membership to the Secretary of State. AB 1367 increases the penalty for misusing campaign funds in a manner that results in an “egregious personal benefit.” AB 319 expands the state’s prohibition on contributions from foreign governments or principals to “contributions and expenditures in connection with an election of a candidate to state or local office.” The measures take effect January 1, 2022.

Reminder:

In Case You Missed It:

Campaign Funds for Legal Defense: According to the Chicago Sun-Times, the Illinois Supreme Court will “rule on the thorny question of whether Illinois politicians can dip into their campaign funds to pay for their criminal defense or other legal troubles.” The case involves a Chicago alderman who used $220,000 for defense lawyers while under federal investigation. The Chief Justice has recused herself because her husband, an Alderman, has spent over $2 million in campaign contributions on legal fees.

PAC Funds to Support a Lifestyle: Newsweek describes a report [All Expenses Paid] from the Campaign Legal Center that alleges that some Members of Congress are “using their leadership PACs as ‘slush funds’ to pay for extravagances such as expensive hotels and fine dining…. Leadership PACs are meant for members of a party and lawmakers seeking reelection, but the groups’ findings suggest many in Congress are using the money for non-political expenses.”

Paper Fined for Charging Candidates for Coverage: The Washington Public Disclosure Commission fined the Tacoma Weekly $15,000 for violating the law “on three occasions by soliciting money from three candidates seeking public office in 2020, as consideration for an endorsement, article or other communication…” The Tacoma Tribune characterized the action as “cash in exchange for news coverage.”

Record Fine: The Oakland Ethics Commission announced that it issued a $309,600 fine in the case of a city building inspector “who was found to have committed 47 violations of the Oakland Government Ethics Act, including bribery, conflict of interest, failing to report income, misusing a City position, and misusing City resources.” The S an Jose Mercury News notes that in one instance, he made a contract with an owner under court order to repair her property to “do the work himself — despite the conflict of interest — and then conducted incomplete inspections of his own work.”
PAC Personal Use: A former Chicago Alderman pleaded guilty to “wire fraud and money laundering, admitting he took nearly $38,000 from the Chicago [City Council] Progressive Reform Caucus to pay for personal expenses.” The Chicago Sun-Times reports that he used the PAC money “as a personal piggy bank, stealing thousands to pay for a relative’s college tuition, skydiving excursions — and even at Lover’s Lane.”

WEEK OF September 24, 2021

Latest Developments:

The United States First Circuit Court of Appeals, in Gaspee Project v. Mederos, upheld Rhode Island’s “limited disclosure of funding sources responsible for certain independent expenditures and electioneering communications.” The court found that the laws bore “a substantial relation to a sufficiently important governmental interest and are narrowly tailored enough to withstand exacting scrutiny.” The Providence Journal reports that an appeal to the U.S. Supreme Court is planned.

Reminder:

In Case You Missed It:

Contractor Sentenced: The San Francisco Chronicle reports that a city contractor was sentenced to two years in federal prison for his part in bribing the former head of the San Francisco Department of Public Works in exchange for “a lucrative contract to build and operate an asphalt recycling plant on land owned by the Port of San Francisco.”

Pay-to-Play Mayor Sentenced: The Mayor of Fall River Massachusetts was sentenced to six years in prison for corruption. The Fall River Herald News reminds us that the Mayor “was convicted in May of devising a pay-to-play scheme in Fall River, extorting bribes from marijuana businessmen looking to open up shop in the city.”

Fine for Soliciting Contractor Contributions: The Bowling Green Daily News reports that the former Director of the Rhode Island Department of Administration, which “oversees hundreds of millions of dollars’ worth of state contracting and spending” agreed to “pay a $4,500 fine to settle an ethics complaint over his solicitation of campaign donations from state vendors for a mayoral run.” The article notes that the former director “admitted in the settlement [with the State Ethics Commission] that six separate solicitations from an owner or officer of a company that does business with the state violated the code of ethics.” He previously obtained an advisory opinion from the Ethics Commission outlining what fundraising was permissible, and asserted that “he ‘never knowingly solicited contributions from vendors.’”
Foreign Solicitations Result in Indictments: Politico describes two new federal indictments for “facilitating a campaign contribution by a foreign national, acting as a straw donor and causing the filing of false campaign finance reports.” The pair of fundraisers are accused of “funneling $25,000 from a Russian national into the Trump campaign in 2016.”

WEEK OF September 17, 2021

Latest Developments:

The Illinois Legislature, after rebuffing the Governor’s request to amend SB 539 earlier, passed the requested amendments to the ethics bill at the beginning of a one-day session called to “consider a comprehensive energy package.” The Mattoon Journal-Gazette & Times-Courier explains that the week before, when the ethics bill was brought up at the end of a one-day session on redistricting, “Republicans pulled their support while several Democrats had already left the building, leaving the amended bill with only 59 votes, far short of the 71 votes needed to pass.” The amended measure makes extensive changes to ethics, campaign finance, and lobbying laws. The bill will take effect January 1, 2022, after approval by the Governor.

The Federal Election Commission “found no reason to believe that Twitter, Inc. violated [certain election laws] by making a corporate in-kind contributions” when it “blocked users from sharing links to and posting certain information from the New York Post articles relating to hacked and personal information” about Hunter Biden. The decision in Twitter, et al found that “because Twitter’s actions reflect a commercial, rather than electoral purpose, they were not contributions.” Moreover “Twitter’s actions… were not coordinated with the Biden Committee, and as such also did not constitute contributions.”

The Governor of New York appointed James Dering as the new acting Chair of the Joint Commission on Public Ethics. Dering is a holdover appointee from the Cuomo administration. According to CBS6 Albany, the appointment occurred “Just four minutes before Tuesday’s JCOPE meeting…” The Governor’s office issued a statement to CBS6 indicating that the Governor is “‘actively working to make more appointments and pursue bold reforms to JCOPE to improve ethics oversight and support the Governor’s efforts to restore trust in government.’”

The Chicago Board of Ethics imposed a $5,000 fine in an enforcement action (see pp. 31-32) for failing to register when “lobbying the Mayor to influence [an] ‘administrative action.’” The Chicago Tribune explains that the Board issued the fine against the owner of Chicago’s WNBA team because the owner emailed the Mayor’s wife seeking help on legislation that could lead to his acquisition of a gaming license. She forwarded the email to the Mayor and said the Mayor would call him.

Reminder:

In Case You Missed It:

Guilty Plea: According to the NBC News, Igor Fruman “pleaded guilty to a single count of solicitation of a contribution by a foreign national, who was not identified by prosecutors.” According to the article, he “sent text messages to the foreign national and that person’s agent seeking $1 million in political contributions and that the foreign national wired two $500,000 installments for that purpose.” Fruman “said he was not aware of laws prohibiting foreign campaign contributions at the time he engaged in the donation scheme.” Fruman is best known for making “headlines for helping Rudy Giuliani seek damaging information on Joe Biden in Ukraine.”

Campaign Finance Disclosure Sought: The Baltimore Sun reveals that the Maryland State Board of Elections sent a letter to former Lt. Governor Steele following receipt of a complaint that he was “using a federal account to raise and spend money for a future state campaign in Maryland.” His spokesperson indicated that the letter is a “vindication that they are properly using their federal account in advance of potentially launching a gubernatorial campaign and creating a state campaign finance account.” The article explains that “a [federal] 527 account has significant advantages, such as no limit on how much an individual or company can donate to the committee. A campaign committee organized under Maryland law can accept only a maximum of $6,000 per donor for each four-year cycle.”
New Jersey Complaint Disposal: Politico reports on the New Jersey Election Law Enforcement Commission’s practice of “quietly” deleting complaints from its website after disposing of them in executive session. A vocal critic asserted that “‘The public has no clue as to why the dismissals occurred…’” The Commission’s Executive Director countered that “‘Even after dismissed complaints have been taken down from our website, members of the public still are entitled to obtain copies under the Open Public Meetings Act…’”

WEEK OF September 10, 2021

Latest Developments:

The Alaska Supreme Court sided with the Alaska Public Offices Commission in determining that limits on contributions to independent expenditure committees are unconstitutional. In APOC v. Patrick, the court found that existing limits are unconstitutional as applied to those groups, citing Citizens United. In another case, Resource Development Council for Alaska v. Vote Yes for Alaska’s Fair Share, the court struck down the state’s $1 per signature limit on compensation for initiative signature gatherers as an unconstitutional restriction on political speech.

The House Committee on Ethics issued several statements acknowledging investigations into Member’s transgressions. Roll Call explains that the House Ethics Committee is investigating four Members of Congress for ethics violations; among them is one member who allegedly “spent thousands in campaign funds on personal pursuits, including on fast food and family vacations.”

The United States Department of Justice announced that three related trash contractors, in the ongoing investigation of corruption at City Hall, “have agreed to pay $36 million in criminal penalties” and cooperate with prosecutors. In addition to the $36 million fine, the deferred prosecution agreement obligates [the company] to fully cooperate with government investigations, to implement an enhanced corporate compliance program, and to provide annual reports to the United States Attorney’s Office on implementation and remediation.” The prosecution agreement specifically requires that the compliance program include “developing new travel and expense policies, guidance, and reporting mechanisms; new charitable contribution policies and procedures; adoption of a no-gift policy for public officials; [and] training for all employees that might interact with public officials…”

Reminder:

In Case You Missed It:

Senate Candidate Charged: According to Courthouse News Services, a Milwaukee Alderwoman who is running for U.S. Senate in 2022 has been charged with felony violations of campaign finance law. The article states that, among the charges, she allegedly “misused more than $13,000 in campaign funds for personal expenses and around $3,200 in campaign funds during travel for city of Milwaukee business, and deposited about $2,700 in campaign checks into her personal bank accounts.”

Failure to File: WCNC reports that the North Carolina State Board of Elections has assessed a total of more than $330,000 in fines against campaign committees so far this year “for filing their 2020 routine campaign finance paperwork late or failing to file their 2020 reports altogether.” One campaign told WCNC that “transactions were filed accurately with the FEC but not with the state…”

Pay-to-Play LA: The A. Daily Breeze updates the ongoing L.A. corruption case, which it describes as “a $1.5 million pay-to-play scheme in which real estate developers were shaken down for cash and campaign donations in exchange for help getting building projects through the city’s approval process.” The article sums up a councilmember’s defense as “favors aren’t bribes.” His attorneys assert that his “only crime was acting as an ‘evangelist for robust development’…”
Southern California Contract Corruption: The Los Angeles Times reports that L.A. County prosecutors have charged four men with corruption in connection with contracts to build a solar power facility for the City of Industry in Southern California. Among those charged are the city’s former manager, the developer, and a former state legislator (who was convicted and sent to prison in 1994 for taking a bribe in an FBI sting known as “Shrimpscam”). The developer is accused of “embezzlement, money laundering, grand theft and misappropriation of public funds”; others are alleged to have “a financial conflict of interest.”

WEEK OF September 3, 2021

Latest Developments:

Multnomah County, Oregon (County Seat: Portland) announced that it will implement campaign contribution limits. According to the release, a “Circuit Court judge has ruled that Multnomah County’s campaign contribution limits are constitutional and do not violate free speech rights guaranteed by the First Amendment.” Accordingly, the “County Elections Division will implement the contribution limits. More information on implementation will be posted in the coming weeks…”

The Pennsylvania Secretary of State added a page to its website explaining Lobbying Disclosure Equity Reports. The site includes FAQs, a link to the reporting site, and a reminder that the first reports are due October 7, 2021, for the 12-month period ending June 30, 2021.

Reminder:

Corporate Political Activities 2021 – Latest Developments: The Pracitising Law Institute (PLI) will conduct its annual two-day conference on October 12-13, 2021, both in-person and online. You may register here. Separately, Nielsen Merksamer clients will join together on September 9, 2021, in a virtual client workshop to discuss new developments in political law, to share experiences and best practices and to earn CLE credit. Clients can email Donna Flanagan for additional information.

In Case You Missed It:

They Can Say They Tried: The Governor of Illinois, who previously announced his support for an ethics reform bill, SB 539, returned the bill to the state legislature. In his message, the Governor asked legislators to remove language that “confuses and interferes with the existing processes of the Executive Inspectors General.” He characterized the change as “one technical drafting error.” Although the Senate accepted the change, the house rejected the amendment, thus killing the legislation.

Georgia Leadership Advantage: S. News & World Report points out that Georgia’s new law permitting unlimited spending by leadership committees is “described by analysts as an ‘incumbent protection scheme’” that offers “the current governor a massive advantage in a crucial race next year.” An incumbent may set up a leadership committee that is allowed to collect unlimited contributions from individuals at any time; a challenger can only set one up after becoming a nominee for the office.

No-Bid Contracts for Contributors: The Associated Press reports that a former aide sued the Indiana State Treasurer alleging that she “violated state law in handing out contracts that paid more than $6 million to firms linked to her political supporters.” The article says that the lawsuit asserts that “contracts went to eight banks, a financial services company and the Indianapolis law firm Ice Miller. It says all 10 companies either directly contributed or had business ties with others who contributed to Mitchell’s 2014 or 2018 treasurer campaigns, or her unsuccessful 2020 run for Congress.”

Repeal and Replace: Spectrum 1 News in Syracuse is reporting that, in the wake of former Gov. Andrew Cuomo’s recent resignation, certain good government groups are calling for wholesale replacement of the state’s ethics commission (JCOPE). JCOPE, created by the Cuomo administration a decade ago, “has long been criticized for lacking transparency in its decision making or investigation and pursuit of small-bore targets.” State legislators have proposed a constitutional amendment that would replace the commission…designed to be more independent [in which a] majority of the commission’s members would be appointed by the judiciary, not the legislature or the governor.”

Nonprofits Fights for Anonymity: According to the Colorado Sun, “A deep-pocketed nonprofit that has directed millions of dollars to conservative causes in Colorado over the past two years is heading for a showdown with Democratic Secretary of State Jena Griswold over whether it can keep its donors secret.” The group is appealing a $40,000 fine for failing to disclose its donors in connection with $4 million it spent opposing three ballot initiatives in 2020.

Detroit City Hall Corruption: The Federal Bureau of Investigation acknowledged that it searched Detroit City Hall and other locations “as part of an ongoing public corruption investigation.” The Detroit Daily News reveals that the investigation concerns city towing operations, bribery, and “secretly” paying for campaign advertising billboards.
Non-Disclosure on Voluntary Disclosure Form: WBTV reports that the Charlotte City Manager, Economic Development Director, and several other City officials are in the process of resubmitting their conflict of interest disclosure forms after they “failed to disclose numerous organizations…[they are] involved with on government ethics forms.” One such conflict-of-interest concerns “a project that has gone past schedule and overbudget…[and] is being led by…a nonprofit for which [City Manager] Jones is a volunteer board member.” Curiously, however, “City ordinance does not require city employees or the City Manager to fill out the…form” although they do so voluntarily.

WEEK OF August 27, 2021

Latest Developments:

The California Fair Political Practices Commission adopted a new regulation requiring disclosure when a committee pays for website advertisements or third-party social media advertisements. The commission also amended two other regulations related to online communications paid for by committees. These changes take effect January 1, 2022.

The New York Joint Commission on Public Ethics changed its course on investigating former Governor Cuomo at its meeting this week. The commission voted to ask the New York Attorney General to investigate a leak at the Commission regarding an investigation into one of the former governor’s associates. The commission also agreed to revisit the commission’s permission for the former governor to publish a book while in office, which will appear on the September meeting agenda. The New York Post explains the actions and notes that “JCOPE, often criticized as a lapdog instead of an ethics watchdog, is being more assertive now that Cuomo is out of power.”

In Case You Missed It:

Another Unregistered Foreign Lobbying Investigation: The Hill cites a Wall Street Journal report that the Department of justice is investigating a lobbyist who “set up an advocacy group without disclosing its ties to Qatar.” The lobbyist reportedly “did not disclose his ties to Yemen Crisis Watch, or register the group under foreign lobbying laws, despite receiving $250,000 from the Embassy of Qatar.”

More Personal Use: Roll Call reports that the Office of Congressional Ethics found that a West Virginia Congressman “spent thousands of campaign dollars on personal expenses, including numerous fast food meals and family excursions to West Virginia resorts.” He has since “paid his campaign back more than $12,000.” The report also found that the “campaign failed to properly disclose at least” $40,000 in accordance with Federal Election Commission regulations.

Afghanistan Spurs Lobbying Activity: Politico observes that, as a result of geopolitical changes, “a slew of Middle Eastern countries — Qatar, Libya and Turkey among them — have put out feelers to D.C. lobbying firms in an effort to bolster their presence in the U.S. capital… A few lobbying firms, meanwhile, have already reached out to pitch their services to Ali Nazary, Afghan resistance leader Ahmad Massoud’s head of foreign relations and spokesperson.” The article also notes that “Government officials and organizations in Saudi Arabia, among the most aggressive countries in its D.C. lobbying presence, reported paying $31 million to their FARA-registered lobbyists and public relations professionals in 2020.”

WEEK OF August 20, 2021

Latest Developments:

The Chair of the New York Joint Public Ethics Commission resigned. She was appointed by the Governor to the position in February. The Albany Times-Union reports that she told the Governor in June that she intended to resign as she never expected to serve more than six months as chair. JCOPE, which has responsibility for overseeing lobbying and ethics in the state, recently updated its policy concerning release of information about investigations.

The North Carolina Utilities Commission issued its final rules [Attachment A] regarding “public utility expenditures on lobbying, advertising, political contributions, and other matters.” The rules essentially prohibit public utilities from recovering from its ratepayers “any direct or indirect expenditure” in connection with those items and require a certification to that effect from the utilities in every application for a change in rates. NC Policy Watch explains the evolution of the rules, which are a result of a 2018 petition.

In Case You Missed It:

Alaska Won’t Appeal: The Associated Press reports that a spokesperson for the Alaska Department of Law indicated that the state will not appeal the recent 9^th Circuit Court of Appeals decision that struck down certain Alaska campaign contribution limits. “‘The resources and risks to pursue a rehearing of the Ninth Circuit en banc, or a further appeal, are too great,’ she wrote. ‘We encourage the legislature to address this issue…’”

Foreign Agents Contribute: OpenSecrets.org discloses that registered foreign agents and lobbyists for companies with foreign parents made $33.5 million in political contributions during the 2020 election cycle. The article points out that “Foreign nationals are prohibited by federal law from making contributions to political groups or campaigns to influence U.S. elections.” The $33.5 million contributed includes “contributions to federal-level campaigns as well as outside groups like political action committees and super PACs that are registered with the FEC. PACs affiliated with firms of registered foreign agents contributed even more.”

Ethics Collections: The Columbia Post and Courier reports that the South Carolina Ethics Commission is owed fines totaling “(n)early $2.9 million racked up by 370 politicians, local officials and various deadbeats who refuse to pay up.” The commission has been desperately trying to get officials “to file campaign reports and ethics disclosures that state law requires of public officials.” The commission is not alone; the “state House and Senate ethics committees, which initially handle ethics complaints against legislators, have scores of debtors.”

Punishing Personal Use: Leadership of the California Fair Political Practices Commission, in an opinion piece in the East Bay Times, urges that penalties for personal use of campaign funds be revised to be proportionate to the offense. According to the article, current law provides that “the candidate who misspends campaign funds on themselves faces the same maximum fines as the candidate who accidentally makes a campaign reporting mistake. The fine for both is $5,000 per violation.” A bill before the legislature would increase penalties when campaign funds are spent for an “egregious personal benefit.”

No Prison for Personal Use: A North Carolina legislator, who used $365,000 of his campaign funds for personal use, must “pay a $1,000 fine and avoid getting in trouble again for the next two years. The Charlotte News & Observer reports that “he took the money in order to prop up his struggling farm.” As part of the plea agreement with the U.S. Department of Justice, he must also repay the $365,000 that he took.

Ethics in Focus: The San Gabriel Valley Tribune reveals that the City of El Monte, California removed a city council member “from her position as mayor pro tem and revoked her membership in outside commissions this week in response to allegations that she accepted thousands of dollars in gifts form a lobbyist.” The council will consider new measures to regulate ethics, “including lobbyist registration, gift limits and a revolving door policy — at its first meeting in September.”

WEEK OF August 13, 2021

In Case You Missed It:

Pay-to-Play Conviction: The New Mexico Attorney General announced that a Rio Arriba County Commissioner was convicted for violating the state’s procurement code. The Commissioner failed to disclose campaign contributions he made to an Española Public School Board candidate; the school board gave the Commissioner a no-bid personal services contract, which required the disclosure.

Fines for Late Reports: The Alaska Public Offices Commission fined the Mayor of Anchorage for failing to report within 24 hours contributions that were received in the final days before an election. The penalty is $500 per day for each day a report is late. One fine was issued for $15,500 (31 days late) and another fine was issued for $18,000 (36 days late).Alaska’s News Source explains that these fines are on top of fines assessed against the Mayor totaling $52,650 issued in July for “failing to accurately disclose campaign finances in a timely manner, and for receiving over-the-limit contributions…”

Ethics Commission Dustup: According to the Daily Memphian, Shelby County Commissioners overrode the County Mayor’s veto of a measure to create a new ethics advisory panel. The panel would advise county commissioners about the Mayor’s appointees to the county Ethics Commission and about amendments to the county ethics ordinance. The county Ethics Commission investigates complaints against officials and oversees lobbyist registration and reporting.

Contributions Matriculate: The Washington Examiner questions the timing of contributions made from Congressman Ted Lieu’s campaign funds to Stanford University. The Congressman’s campaign committee gave $50,000 to his alma mater “a few months before his son applied to Stanford.”

Contribution Follows Contracts: Politico reports that a Utah health company used a lobbyist and fundraiser to secure no-bid contracts with the Florida Governor’s Division of Emergency Management [DEM] “then gave the Republican governor a $100,000 political contribution.” A spokesperson for the Governor said that “the Governor is not involved in the selection of vendors at DEM or any other agency…. This contract and/or contracts were entered into by DEM.”

WEEK OF August 6, 2021

Latest Developments:

The Ninth Circuit Court of Appeals issued a new opinion in Thompson v. Hebdon. The previous decision of the court was vacated by the United States Supreme Court in 2019. (That Supreme Court case is here: Thompson v. Hebdon.) In the new opinion, the court “affirmed the district court’s bench trial judgment upholding Alaska’s political party-to-party candidate limit.” Yet it also “reversed the district court’s judgment as to the individual-to-candidate limit, the individual-to-group limit, and the nonresident aggregate limit,” thus abrogating those limits.

The Tenth Circuit Court of Appeals decided Rio Grande Foundation v. Santa Fe, in which the court upheld the City of Santa Fe’s campaign finance disclosure requirements. According to the court, the city requires that “any person or entity that makes expenditures of $250 or more during a single Santa Fe election on public communications relating to a candidate or ballot measure must disclose certain information to the city clerk.” The Foundation argued that its speech was chilled, but the court found that the Foundation lacked standing because it failed to show injury.

The Miami-Dade Board of County Commissioners enacted revisions to the city’s lobbyist ordinance. Ordinance 21-73 adds definitions for “expenditure,” “lobbying activity,” and “procurement matters,” revises county personnel covered by the ordinance, revises registration exceptions, including certain procurement matters, requires amendments within 15 days of the change in information, and requires annual reports, even if a lobbyist has no expenditures to report. The amended ordinance took effect July 30.

The Governor of New Hampshire approved HB 263. According to the official Analysis, the bill “repeals voluntary expenditure limits, increases the expenditure and contribution reporting threshold for all political entities, and modifies the maximum contribution amount a person may contribute to candidate committees and political committees. This bill also increases the dollar threshold for reporting by political committees.”

The Federal Election Commission adopted Advisory Opinion 2021-07, which permits a for-profit online platform to solicit and make contributions to federal candidates. The organization’s proposed services include “(1) enabling its clients to transfer funds to [the organization] and make contributions from those funds, and (2) providing a “convenient vehicle” through which individuals authorized by [the organization’s] clients may solicit those clients for contributions.”

Aurora, Colorado opened its Lobbyist Registration Portal. The city’s Ordinance 2021-08 took effect August 1 and quarterly activity reports are required; the first report is due October 15. The city’s website notes that “The City Clerk will accept complaints regarding compliance starting Jan. 16, 2022. The City Clerk’s Office will focus on education and compliance in the regulation of lobbyists during the year the ordinance takes effect. Lobbyists will not be subject to revocation, suspension nor sanctions for any violations in 2021.”

In Case You Missed It:

Campaign Contributions Followed by Increased Spending: KJZZ reports that Arizona lawmakers invested more in private prisons after receiving record-high campaign contributions from private prison interests. “(A) member of the Joint Legislative Budget Committee said he couldn’t say if the move would save Arizona money, only that lobbyists asked the committee for an increase in their contracts and they received it.”

Procurement Consultant Sues for Payment: A Cleveland lobbyist, who helped arrange a $21 million dollar contract for personal protective equipment with the state’s nonprofit economic development corporation at the outset of the pandemic, is suing for nonpayment of his commission. com reports that “the company [that supplied the PPE] says it doesn’t owe anything. Its lawyer says since state law bars anyone from getting paid a percentage of a state contract they lobbied on, the contract is illegal. The dispute comes down to what the definition of lobbying is.”

Unreported Gift Prompts Push for Ethics Reform: The Los Angeles Times reveals that the “El Monte City Council has launched an effort to create an ethics commission” following the Times disclosure of unreported “financial assistance from a lobbyist to help pay for [a councilmember’s] breast augmentation surgery.” The councilmember and the lobbyist were formerly best friends but had a falling out when the councilmember “voted against allowing retail sales of cannabis in the city, a proposal that [the lobbyist] had championed.”

Maine Investigates LLC that Operated as a PAC: The Portland Press-Herald reports that “The Maine ethics commission voted Friday to launch an investigation into” an LLC that donated $150,000 to Maine Democrats four days after formation. The LLC dissolved 14 months later with “no public evidence the company conducted any other business.” The commission’s executive director noted that “if the company’s only purpose was to donate funds to the party Maine law required it to register as a political action committee and disclose who donated money to it.” If it “was an actual company, the large donation to the party would not have raised any concerns because it would have been allowed under the law.”

San Francisco Ethics Commission Fines Mayor: According to the San Francisco Chronicle, the San Francisco Ethics Commission has proposed a $22,792 fine for the Mayor’s various ethics violations. Among other things, she used her position to ask the former Governor to release her brother from prison after he had “served about two decades of a 44-year sentence for involuntary manslaughter and armed robbery,” and accepted a gift from “the former Public Works director who was charged by the FBI in 2019 for fraud.” Her brother remains in prison and the former Public Works Director is awaiting trial.

WEEK OF July 30, 2021

Latest Developments:

The North Dakota Ethics Commission approved a $10 food and drink exception to its gift rules for public officials. At their July 29 meeting, effective immediately, “[f]ood or beverage with a value of $10 or less…[may be] purchased for a public official in conjunction with an informal social and educational event.” The food must be consumed at the event and a state resident must be present.

In Case You Missed It:

Disarray in the DC Suburbs: The Prince George’s County, Maryland School Board is at a standstill after considering an ethics committee recommendation that 7 of its 14 members be removed over conflict-of-interest violations. According to Maryland Matters, “prior to the board’s public meeting, the [unaccused] members convened in closed session and voted to accept the ethics committee’s determination.” Yet, in open session, the implicated members blocked the board from proceeding on the ethics charges and the board failed to arrive at a resolution.

The Missouri Ethics Commission is seeking $191,550 from former state-Rep. Courtney Curtis for failure to pay fines stemming from past ethics orders. Curtis was sentenced in March after he “pleaded guilty earlier that month to federal charges revolving around his misuse of campaign funds” and is currently in federal prison, according to the Louis Post Dispatch. His initial fines were $19,150, meaning the Commission is imposing ten times the amount.

Michigan Campaign Finance Loophole: Michigan Live reports that complaints have been filed in Michigan, where the incumbent governor is employing a nearly 40-year-old precedent “to collect unlimited funds from individual donors.” The 1983 ruling dispenses with caps for individual contribution limits to candidate committees (currently $7,150) if the candidate is facing a recall. Opponents contend the governor is exploiting the exception given that a recall “is not actively being sought.”
Major Fines in The Last Frontier: Staff for the Alaska Public Officers Commission recommended $52,650 in fines for alleged campaign finance violations against Anchorage Mayor Dave Bronson’s 2021 election campaign. According to the commission, the committee failed to “disclose tens of thousands of dollars in debt for more than seven months after it was incurred — until after this year’s April 6 election and the May 11 runoff — among multiple other infractions of state campaign finance rules.” The Anchorage Daily News reports that the Mayor’s campaign says it is cooperating with the ongoing investigation.
Campaign Funds for Legal Defense in the Empire State: Local media reports that New York State legislators and good government groups are pushing reforms in the state campaign finance laws that permit politicians “to pay lawyers defending them against allegations of wrongdoing” with campaign funds. In the wake a string of high ranking and high-profile politicians, including the former assembly speaker and current governor, using campaign funds for legal defense of personal wrongdoing, it has appeared unseemly to groups pushing reform. In defense of the practice, a spokesperson for the governor maintained that “[u]sing campaign funds instead of taxpayer dollars for this purpose has been well established for decades.”

WEEK OF July 23, 2021

Latest Developments:

The Governor of Illinois indicated that he will sign SB 539, according to the Chicago Tribune. Among other things, the bill would expand state lobbyist registration to include local lobbyists, regulate consultants who work for lobbyists, expand revolving door provisions, and expand the geographic coverage of the prohibition on making certain campaign contributions during a legislative session. The Governor has 60 days from June 30 in which to sign the bill.

The United States Department of Justice announced that a federal grand jury issued an indictment of a former Trump presidential campaign advisor. The New York Times describes the indictment as “federal charges of violating a federal law requiring lobbyists for foreign interests to disclose their work to the Justice Department.”

In Case You Missed It:

Zombies to Rise in 2022: Bloomberg News reports that with a number of congressional retirements in 2022, additional campaign funds will become “zombies,” which are campaign funds controlled by former officeholders who are not seeking election to any other office. According to the article, one retiring senator “is sitting on more than $16 million in two campaign accounts—far more money than any other retiring lawmaker has ever had… Many of these so-called zombie committees last for years after the lawmakers who established them left electoral politics or even died, even though the Federal Election Commission has urged them to disburse their money and shut down. Few enforcement actions have been taken, and actual penalties are rare.”

Keeping Promises is Ethical: Politico reports on increasing pressure on the Biden administration “to follow through on his campaign promise to press for an aggressive 25-point plan for ethics reform” in the face of what some watchdog groups see as a meager legislative push. While the President has enacted executive orders governing his staff, ethics advocates stress that “longer lasting reforms come through legislative action.”

When the Dead Contribute: According to Roll Call, a Member of Congress reported a contribution from a donor who had been dead for seven months. The campaign later “amended disclosure forms filed with the Federal Election Commission to remove the dead woman’s name.” The contribution is now from her husband. The article notes that Federal Election Commission advisory opinions permit contributions from decedents in limited circumstances.

Nonprofits Beware: The Associated Press confirms that the IRS received a complaint against a nonprofit charity alleging that the nonprofit engaged in partisan politics. The organization is “ registered as a 501(c)(3) nonprofit, [and thus] barred under U.S. Internal Revenue code from ‘directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.’” The organization indicated that it does not share information with political parties but provides a database to legislators “not… for campaigning but for communicating with constituents.”
Lobby Business Booming: Roll Call describes how “Cash floods K Street as Democrats focus on spending and taxes.” One lobbyist noted the driving force is that “‘Democrats continue to embark on one of the most ambitious policy agendas in recent history.’” With multiple issues, including taxes, infrastructure and earmarks, trade, and healthcare all up for consideration in legislation, another lobbyist noted, “‘It’s like having 10 fronts working all at the same time.”

WEEK OF July 16, 2021

Latest Developments:

The Pennsylvania Legislature passed B. 336 last month, which includes a provision that requires lobbyists file “equity reports” that disclose their equity interest in the entity for which they are lobbying. The measure became law this month without the Governor’s signature and takes effect September 7. However, the new electronic reporting requirement is not expected to be in place until 2022. Stay tuned…

The Governor of Connecticut approved B. 6444, which deletes certain requirements that applicable contractors with contracts of $500,000 or more separately certify compliance with state ethics provisions. Instead, the bill requires that the contracts themselves include those provisions. According to the bill analysis, the measure concerns “contractors’ compliance with (1) state ethics laws; (2) restrictions on gifts, investments, political contributions and solicitations, and use of consultants; and (3) nondiscrimination and affirmative action requirements. It also codifies and expands upon provisions in an existing executive order that require certain state contractors to disclose any campaign contributions.” The bill was signed June 28 and became effective July 1, 2021.

Annapolis, Maryland adopted Ordinance 15-21, which requires persons who make aggregate independent expenditures of $5,000, or more in a municipal election to register within 48 hours. Expenditures of $10,000, or more, must be reported within 48 hours.

In Case You Missed It:

Jailtime for Campaign Finance Violations: The San Francisco Chronicle reports that a former California legislator was sentenced to one year in the county jail for misusing campaign funds. Prosecutors charged over 30 felonies, including for “alleged personal use of more than $260,000 in campaign funds.” Those funds were used “to pay for restaurants, airfare, a $36,000 vacation to Asia and credit-card charges related to the remodel of a home he owned in Hawaii.” The former legislator, who pleaded guilty to nine counts, will also lose his license to practice law and is barred from holding future public office.

PAC Donations Whipsawed: The Detroit News reports that Toyota stopped PAC congressional donations after the January 6 insurrection, then resumed making donations the following month. Faced with a threat from The Lincoln Project to run ads against donors, “beginning with Toyota,” the car company “will no longer donate to members of Congress who voted against certifying the 2020 election in January… The Lincoln Project said it would no longer air the Toyota ad after Thursday, and declined to comment on what other companies it plans to target.”

Checking Up on Pre-checked Boxes: According to the Washington Post, at least four state attorneys general are “are looking into the online fundraising practices of both major political parties… The practices being examined include the use of pre-checked boxes that lock in recurring donations from political donors who may not intend to sign up for more than one contribution.”

Charitable Gifts Under Scrutiny: The California Fair Political Practices Commission discussed gift giving to politicians’ favorite charities, with “a proposal to require elected officials to provide more information on special interest donations to their nonprofits.” Cal Matters notes that “Donations … to nonprofits controlled by legislators, their staff and family members (have) become an increasingly common way for politicians to raise and spend money outside the limits of the state’s strict campaign finance laws.”

Mississippi Gift Largesse: The Mississippi Daily Journal reports that in the last two years, “lobbyists for six of Mississippi’s eight public universities gave out almost $100,000 in gifts to lawmakers and other public officials…” The article discusses the lack of transparency in a state with no gift restrictions: Gift-givers “sometimes fail to describe what they are buying for elected officials in their public reports.” While some seek reform, “past efforts never made it out of committee.”
Married at a Campaign Event: According to Newsweek, the mayor of a small city in Michigan “defended using thousands of dollars in campaign funds to help pay for his daughter’s wedding by stating that it doubled as a campaign event.” While the mayor acknowledged that “using the money for the wedding created ‘poor optics,’ he did not believe it constituted an improper use of funds.” One critic opined, “If the wedding of your own daughter could be a campaign event, what sort of event cannot be a campaign function?”

WEEK OF July 9, 2021

Latest Developments:

The Governor of Montana approved B. 224. Among other things, the bill increases contribution limits for contributions from PACs and individuals to candidates for state and local offices and repeals the aggregate limit on contributions that candidates may accept from PACs. The measure takes effect October 1, 2021.

The Governor of Minnesota approved F. 9, a tax bill that includes a provision to prohibit a “sitting member of the legislature” from working for or receiving compensation from any lobby or government relations business. The Minnesota Reformer explains that the measure is aimed at a current member who took a position as director of public affairs for a D.C. area lobby firm. The provision takes effect January 3, 2023.

Hawaii’s Legislature approved HB 671 last April, which broadens the state’s one-year revolving door restrictions imposed on former legislators and extends the application of the law to executive officeholders and senior appointees. Inasmuch as the Governor failed to sign or veto the measure within 45 business days of adjournment, the measure now becomes law and will take effect on January 1, 2022.

In Case You Missed It:

Corporate Campaign Disclosure Bill Introduced: A Pennsylvania Congressman introduced R. 4359, which would “require corporations to disclose to their shareholders the amounts disbursed for certain political activity.”

Campaign Finance Enforcement Ignored: The Northeast Mississippi Daily Journal reports that more than $150,000 in fines for failing to file timely campaign disclosure statements have gone unpaid since 2018. “Only about $30,000 worth of fines were paid – or waived due to valid excuse – over the three years.” The parties involved in enforcement agree that the current law needs work. “‘Ironing out the statutes regarding deadlines, consequences, and the specific duties of the state agencies involved would help us hold candidates and political committees more accountable and streamline the overall process,’” according to a spokesperson for the Secretary of State.

Fine for Failing to Register: The Idaho Capital Sun reports that the state’s Attorney General fined a lobbyist for a nonprofit “$250 for lobbying on Idaho’s higher education budget without first registering as a lobbyist.” The lobbyist first registered on April 14, 2021, but reported $14,000 in expenditures in March. The Secretary of State requires that lobbyists register before engaging in any lobbying activity and referred the matter to the Attorney General, who imposed the “Late Lobbyist Registration Fine.”

Ethics Agency Conundrum: The Los Angeles Times explains the difficult situation that ethics agencies, such as the Los Angeles City Ethics Commission, face when they are financially dependent on the elected officials they regulate. One council candidate noted, “If you require Ethics Commission employees to be beholden to the City Council for their salaries, for the department’s funding, you give them no power.” Another observer put it more bluntly, “If you are the executive director, of course you know there’s super weirdness with having to ask for a pay raise from the officers you’re overseeing.”
More Campaign Finance Challenges?: According to an analysis by The Hill, the “Supreme Court’s recent donor disclosure ruling could embolden future challenges to campaign finance rules.” The article points out that Chief Justice John Roberts wrote that disclosure laws must be “narrowly tailored” to important government interests. Experts say Roberts’s opinion effectively toughens the standard of review for all laws that compel disclosure, including election rules.”

WEEK OF July 2, 2021

Latest Developments:

The United States Supreme Court decided Americans for Prosperity Foundation v. Bonta, in which the court found that the California Attorney General’s requirement that nonprofit organizations disclose the identities of their major donors violates the First Amendment right to free association. The court effectively enjoined the California Attorney General from collecting copies of “Schedule B” from the organization’s annual tax filings, which historically listed the organization’s donors. No word yet as to whether the Attorney General will propose a more “narrowly tailored” requirement or if the IRS, under the new administration, will change its current requirements with regard to redacting information on Schedule Bs for certain organizations.

The Louisiana Board of Ethics issued a regulation that increased the limit for food, drink, or refreshments to $65, effective July 1, 2021. State law generally prohibits gifts to public officials and employees, but among the exceptions is a gift of food and drink, including incidental transportation and entertainment, consumed while the personal guest of the giver.

Reminders:

The California Lt. Governor has officially set the recall election for California’s Governor for September 14, 2021. The setting of the date starts a 24-hour reporting period for certain contributions. Reporting clients will receive more information. The Fair Political Practices Commission will be updating its Filings Schedule.

The California Legislature is moving forward with significant changes to lobbyist reporting. B. 459 was amended and approved by the Assembly Elections Committee. Amendments this past week removed monthly reporting and expanded administrative lobbying from the bill. However, the measure still would require 24-hour reporting in the 60 days before the session adjourns. Those reports require disclosure of each communication and the client position communicated for each bill within 24 hours of the communication. The reporting provisions would not take effect until one year after the Secretary of State completes its current update to its electronic reporting system.

In Case You Missed It:

Proxy Wars Heat Up: Roll Call discusses the continuing proxy battles to increase transparency in corporate political spending. The article notes recent passage of campaign spending disclosure shareholder proposals at “Netflix Inc., railway operator Norfolk Southern Corp., and GEO Group Inc., which runs immigration detention facilities… In total, 34 proposals across all [Environmental and Social Governance] topics gained majority support this season, compared to 21 last year, according to Proxy Preview.”

Foreign Agent Registrations Up: org reports that “China, Qatar and Russia dominated the top 10 ranking of countries spending the most on foreign influence, lobbying and propaganda operations targeting the United States in 2020.” The “three countries quickly rose to the top of the foreign spending rank,” but that rise doesn’t mean more spending as “much of the spike in reported spending can be attributed to new registrations.” The increase in registrations follows a Justice Department effort to crack down on unregistered agents.

More FARA Inquiries: According to Bloomberg News, “Rudy Giuliani is the subject of a Justice Department inquiry into possible foreign lobbying for Turkish interests separate from a criminal probe of his activities in Ukraine.” The report indicates that this is not a criminal inquiry. The Department of Justice “could issue a determination letter requiring him to register as a lobbyist and also disclose all details of contacts he had with U.S. and Turkish officials.”

Montana Law Stopped: We recently reported on Montana SB 319, which authorizes the use of joint fundraising committees, regulates public college student political activity, and disqualifies a judge if the judge has accepted more than half the maximum campaign contribution from a lawyer in the case. A state court judge will reportedly issue a preliminary injunction to prevent two provisions of the bill from taking effect. The Helena Independent Record reports that the judge will block the portions of the bill relating to college students and judges.
FEC Ponders Candidate Compensation: Roll Call reports on the Federal Election Commission’s consideration of a proposal, Regulation 2021-01, which would allow candidate committees to pay salaries to federal candidates and to provide them with health benefits. The article points out that “if the FEC changes the rules, it would be the latest in a string of shifts from the agency making it easier for candidates to tap campaign funds for what, in the past, would have been deemed personal expenses.”

WEEK OF June 25, 2021

Latest Developments:

The Governor of Maine approved P. 467 (LD 1417), which bans business entities from contributing to candidates and leadership PACs and caps contributions to PACs. The Maine Wire reports that the Governor signed 9 election- and campaign finance-related bills, including H.P. 1099 (LD 1485), which caps the amount an organization can pay for services contributed to a PAC and H.P. 1011 (L.D. 1377), which among other things, requires that internet videos contain the same audible and written disclosure statement (listing the top three funders) as broadcast or cable television political communications. These bills take effect 90 days after the end of the special session, which is currently in recess until June 30.

The Governor of Louisiana signed B. 4, which removes the aggregate cap on contributions from PACs. According to the bill’s digest, under existing law “the total amount of combined contributions for both the primary and general elections that may be accepted by a candidate and his principal and subsidiary campaign committees from political committees shall not exceed $80,000 for major office candidates, $60,000 for district office candidates, and $20,000 for other office candidates in aggregate.” The bill repeals those caps and takes effect August 1.

In Case You Missed It:

Activist Shareholders Pressure Corporations over Contributions: Roll Call describes a letter recently sent to corporate directors by Majority Action, a self-described group “that empowers shareholders to hold corporations accountable.” The article indicates that the group is “pressing 82 corporations to be transparent about donations to candidates and causes as contributions resume after a pause in the wake of the Jan. 6 attack on the Capitol… The letter asks companies to provide public disclosure of the amount and recipient of every election-related expenditure, including those made through political action committees and third-party groups such as trade associations.”

Reporting Regrets: The Alaska Public Offices Commission, in Delaiarro v. Pruitt, fined a former legislator nearly $20,000 – only 2% of the maximum fine allowable – based on the “widespread and serious nature of the violations.” The allegations included failing to timely report expenditures, failing to provide details of expenditures, making untimely reimbursements to himself, and accepting prohibited campaign contributions. According to Alaska Public Media, the former legislator issued a statement saying, “‘In hindsight, I wish I would’ve hired someone to do my reports instead of trying to balance that and a campaign by myself.’”

Crypto Currency Accepted: The Hill reports that “The National Republican Congressional Committee (NRCC) will begin soliciting cryptocurrency donations.” The article notes that the committee is the first national party committee to accept cryptocurrency. The Committee will use a service to convert the contributions to U.S. dollars before transfer to the Committee in order to avoid a Federal Election Commission cap on cryptocurrency contributions.
Lobbyist Access: The Ohio Capital Journal reports that Ohio lobbyists can obtain cardkeys to the State Capitol and nearby buildings, which permits them to “skip security lines, access elevator bays in the office buildings, and enter the Statehouse after hours.” According to a statement from the Ohio Lobbying Association, “All individuals registered with [the Joint Legislative Ethics Committee] and in good standing are eligible to apply and pay for a pass to the select state buildings…” The Ohio Capital Journal acknowledged that its own reporters “are OLCA [Ohio Legislative Correspondents Association] members and have Capitol access cards.”

WEEK OF June 18, 2021

Latest Developments:

Washington State settled, for the second time since 2018, with a major tech giant for not complying with the record retention requirements under state campaign finance laws. According to the settlement, the company will pay $400,000 plus attorney fees for selling political ads to candidates on its “hosted networks… and the tech company did not, as required, retain information about the ads and the candidates.” While other media have been subject to the law, the state alleged certain tech companies have not complied.

The Federal Elections Commission dismissed a complaint contending that Democratic National Committee cooperated with Ukraine during the 2016 campaign to bolster the campaign of Hillary Clinton and damage the campaign of former president Trump. “The accusation, filed by a Trump ally, claims that a former DNC consultant sought harmful information about then Trump campaign manager Paul Manafort, a potential violation of campaign finance laws.” The commission voted 4-2 that there was not probable cause.

The San Francisco Ethics Commission imposed fines on two former City employees for not disclosing their consulting services for an entire year. In settling, the two former employees, who work for the same firm, acknowledge that they “failed to disclose their permit consulting activity for a full year…[and] failed to timely report 80 contacts with City employees or officials on behalf of multiple clients for which they were collectively paid more than $50,000 for their services.” The duo was fined $12,670 for a combined 8 counts of not filing quarterly reports for their permit consulting services.

In Case You Missed It:

A Rhode Island Judge sentenced former Rep-Elect Laufton Ascencao for using funds for his 2018 campaign for the state House from the local Sierra Club chapter of which he was treasurer during his run for office. The Boston Globe reports that “Ascencao pleaded no contest to a charge of felony embezzlement” among other four campaign finance violations. His prison sentence was suspended and he is ordered to pay restitution to the club.

Governor Can Pay Daughter for Hair and Makeup: The New Mexico state election chief has deemed as a legal campaign finance expenditure Gov. Michelle Lujan Grisham’s “use of campaign funds on hair and makeup services” paid to her daughter’s beauty business. The Albuquerque Journal reports that the governor’s reelection campaign made the expenditure in advance of Lujan Grisham’s media appearances during last year’s Democratic National Convention.

Campaign Funds to Fight Charge of Improperly Using Campaign Funds: Congressman Steven Palazzo, under investigation for misappropriation of campaign funds since last year, has confirmed that his campaign then made $61,000 in legal expenditures for his defense in the matter. The (Mississippi) Clarion Ledger details that “there is substantial evidence Palazzo misused campaign funds for his own personal benefit…spend[ing]$20,000 renovating a riverfront home he owned …[and paying] himself $60,000 in rent. An analysis by Forbes indicates Palazzo’s legal expenses “do not appear to violate federal election law.”
Sarkozy ne sait pas quoi: Examining campaign finance issues on the Continent, Nicolas Sarkozy, the embattled former president of France, has denied responsibility for alleged illegal expenditures his 2012 campaign made. Sarkozy has faced numerous ethics charges relating to his tenure, but this issue concerns whether his campaign “splurged nearly double the 22.5 million euros ($27.28 million) allowed under electoral law on extravagant campaign rallies, then hired a friendly public relations agency to hide the cost.” Prosecutors argue that the former president personally benefited from the expenditures while Sarkozy argues that he is “known for delegating.”

WEEK OF June 11, 2021

Latest Developments:

The Governor of Maine signed HB 497, which increases lobbyist registration fees from $200 to $250 and from $100 to $125 for reach lobbyist associate. The legislation notes that the increased fees are intended to “provide ongoing allocations for expenditures related to administering and enforcing lobbyist disclosure requirements including the costs of…technology.”

The New Hampshire Legislature has sent HB 263 to the governor for approval. As reported by local media, the bill would “end the voluntary campaign spending program that allowed candidates who abided by the limits to receive higher maximum contributions from individuals.”It also would increase the primary and the general elections per donor limit to $5,000 each, “allowing any donor to give as much as $10,000 to a candidate during an election cycle.”

The Portland, Oregon Auditor’s Office adopted amended campaign finance Administrative Rules. Among the revisions are adjusted contribution limits and revised disclosure requirements. According to the Auditor’s summary, the revised disclosure requirement include identifying who is making the communication and requiring a website link in social media communications.

In Case You Missed It:

Corporate Two-Edged Sword: The New York Times describes the problems corporations encounter if they “take one position and make donations that support another.” In the context of current battles over voting rights, the article points out that “Investors are battling with corporate boards, filing shareholder resolutions that demand more transparency and accountability about political donations. Increasingly, they’re winning.”

PAC Money Flowing Again: Roll Call reports that although PAC contributions are down, PACs “have begun to send more money to lawmakers.” The article quotes the Executive Director of the National Association of Business PACs, who opined that “Employees continue to believe their company and trade association PACs are important ways for them to exercise their civic duty and provide support to lawmakers who will advocate for their jobs, industries, and communities.”
Seeing Green in The Land of Enchantment: The New Mexico Political Report outlines emerging ethics issues as compliance infrastructure develops in the face of the recently passed Cannabis Regulation Act. As they note, the Act has given rise to a niche market for cannabis adjacent businesses, particularly those aimed at guiding business owners through the process.” Not surprisingly, those offering this specialized knowledge are those closely associated with the Act’s passage, which “raises questions about the ethics of state and local lawmakers selling their services in an industry they sometimes have a hand at creating.”

WEEK OF June 4, 2021

Latest Developments:

The Illinois Legislature approved a comprehensive ethics reform measure, B. 539. Among other things, the bill prohibits public officers from registering as lobbyists for 6 months after leaving office, bans government officials from lobbying other government entities for compensation, and requires that “consultants,” as defined, register as lobbyists. The bill expands lobbyist regulation to apply to those who lobby local officials, those who solicit others to lobby, and requires local lobbyists, except those in Chicago, to register with the Secretary of State. The measure also expands the prohibition on fundraising during a legislative session. The bill goes to the Governor for approval and would take effect January 1, 2022.

The United States District Court for the District of Columbia issued an opinion in Cruz v. Federal Election Commission, which found that the federal $250,000 “loan-repayment limit restricts political expression.” Senator Cruz had loaned his campaign more than $250,000 and, under federal rules, unpaid personal loans in excess of $250,000 are deemed to be a contribution if still unpaid 20 days after an election. Courthouse News notes that the “three-judge panel of the U.S. District Court for the District of Columbia unanimously rejected arguments from the FEC that the rule is necessary to prevent quid pro quo corruption.”

A Bipartisan Pair of Congressmen introduced R. 3389, which would end the revolving door for officials who represent foreign governments. According to the Members’ press release, the measure would “ban retired members of Congress, senior executive branch officials, and general and flag officers of the Armed Forces from lobbying on behalf of foreign interests.” OpenSecrets quotes one observer, “‘These are all people with security clearances. These are people who had access to top secret information, and their next job is to work for an authoritarian regime? I think that should worry people,’…”

In Case You Missed It:

DOJ Scrutinizes Foreign Lobbying: According to Politico, the U.S. Department of Justice is “looking at whether Blue Star Strategies illegally lobbied on behalf of a Ukrainian company that counted Hunter Biden as a board member.” The article notes that “The probe comes as the Justice Department ramps up its scrutiny of foreign governments’ efforts to influence U.S. politics through covert lobbying operations.” One commentator observed that the “Justice Department enforcement of FARA is now considerably more rigorous, seen not only in high-profile criminal prosecutions but also in day-to-day regulatory enforcement such as administrative inquiries into why parties are not registered, accountability for deficiencies in filings, and inspections of books and records…”

Charitable Contributions for California’s First Partner: The Sacramento Bee reports that “in recent years, as Newsom’s political star ascended, records show his wife’s nonprofit received more than $800,000 from a dozen corporations that regularly lobby state government on matters affecting their financial bottom lines.” According to the article, those same “donors also gave about $1.3 million to Newsom’s political committees, records show, and some have also donated hundreds of thousands to other charities at Newsom’s behest.” The Newsom’s 2019 tax return show that the first partner “was paid $150,000” by the nonprofit.

Watchdogs Merging: Maryland Matters reports that the Center for Responsive Politics and the National Institute on Money in Politics are merging into a single entity, “OpenSecrets.” According to the article, “The merger will create a new one-stop shop for integrated federal, state and local data on campaign finance, lobbying and more.” The combined entity will debut a new website later in 2021.
Postmaster General Investigated: The Washington Post reports that the Postmaster General is under investigation “in connection with campaign fundraising activity involving his former business.” The Post previously reported that employees “were pressured by DeJoy or his aides to attend political fundraisers or make contributions to Republican candidates, and then were paid back through bonuses.” The Postmaster “adamantly disputed that he broke the law…”

WEEK OF May 28, 2021

Latest Developments:

The Supreme Court of Connecticut, in Markey et al. v. State Elections Enforcement Commission, overturned civil fines imposed on candidates who misused public campaign funds to “cast a negative light on a candidate running in a different race without properly allocating the cost among campaign committees that were permitted under the [public campaign] financing program to make such expenditures.” The decision, on procedural grounds, found that the Commission mischaracterized its actions on the candidates’ petition. The Supreme Court returned the matter to the trial court to hear the merits of the case.

The New York Joint Commission on Public Ethics introduced its new Executive Director, Judge Sanford N. Berland. Judge Berland recently retired from the New York State Court of Claims.

The North Dakota Ethics Commission issued a proposed regulation to implement a new $10 gift exception for food and beverage purchased for a public official at an informal social and educational event that is consumed at the event. A hearing is scheduled for June 29, 2021. The Bismarck Tribune quotes the Executive Director of the Commission, noting that “he reviewed the Capitol Cafe menu, and ‘this would allow an individual to purchase modest lunch or breakfast and coffee for a public official as they educate them on whatever concerns them.’”

In Case You Missed It:

Gifts Down During Pandemic: Spotlight Pennsylvania reports that “Public filings with the State Ethics Commission show that, with some exceptions, Pennsylvania’s 253 lawmakers did not report receiving anything of great value last year as the pandemic raged…” The article notes that Pennsylvania has “no limit on the size or number of gifts elected officials can accept.”

New Jersey Pay-to-Play Loophole: According to Politico, “Several months after the Union County Improvement Authority awarded a no-bid contract to design a new $100 million county government complex in Elizabeth, top members of the architecture firm that received it opened their checkbooks and donated to the nascent Assembly campaign of a high-ranking authority official.” New Jersey’s pay-to-play laws do not prohibit a local official involved in contracting from raising contributions for a campaign for state office.

Lobbying Returns in D.C.: Roll Call reports that “After more than a year of virtual-only advocacy because of the COVID-19 pandemic, the freshly vaccinated lobbying set is reemerging for real-life meetings on the Hill and in-person fundraisers, as well as meals and sit-downs to reconnect with clients and co-workers… Though virtual events still dominate, Democrats and Republicans have scheduled real-life activities, including destination fundraisers and meetings, in the coming weeks and months.”

San Diego Disclosure goes Dark: The San Diego Reader reveals that the City of San Diego’s campaign disclosure system “has been down for weeks without any public announcement, except for a note on the site that filings would return soon.” The city’s contract with outside vendor Netfile apparently expired April 30, although it could be extended. The City Council approved a new contract with Pasadena Consulting.

Prechecked Box Legislation Introduced: The Hill reports that a group of Democrats are introducing a bill “to prevent default recurring political donations.” Sen. Amy Klobuchar introduced 1786, the Rescuing Every Contributor from Unwanted Recurrences” (RECUR) Act. The measure comes in response to the FEC asking congress to ban the practice. “The bill would create a new opt-in requirement so that contributors have to actively consent to the recurring donations.”

WEEK OF May 21, 2021

Latest Developments:

The Governor of Florida signed SB 1890, which limits contributions to ballot measure committees to $3,000 until the measure has qualified for the ballot. [The ACLU has filed suit to enjoin this provision.] Among other things, the measure also preempts local contribution limits that differ from state limits and all local limits on electioneering communications and independent expenditures. The bill takes effect July 1, 2021.

The Governor of Maryland approved B. 4, which expands the state’s gift limits to ban public officials and state employees from accepting gifts from persons representing local governments. Maryland Matters explains that the state’s gift law generally requires that food and beverages be consumed in the presence of a lobbyist to be permissible. In the age of virtual lobbying, lobbyists for local governments were able to continue to purchase meals while other lobbyists were prohibited from doing so. The measure also prohibits retaliation for reporting or participating in an investigation of a state’s ethics law violation. The bill takes effect June 1, 2021.

The Chair of the California Fair Political Practices Commission, considering recent newsworthy events, asked staff at the recent meeting to discuss the use of “donor-advised funds” in connection with the behested payment regulations scheduled for hearing in July. He also asked staff to discuss at a future hearing, whether the Commission has any regulatory authority over the use of checkboxes for recurring contributions in campaign fundraising.

In Case You Missed It:

Bundle, in Lieu of Pay-to-Play Limit: The Gothamist compared New York City’s Doing Business Database to the City Campaign Finance Board’s registered bundler list in connection with the New York City Mayor’s race. According to the article, “Two dozen people who are limited from contributing to candidates because of their business ties with the city are legally circumventing those restrictions by serving as “bundlers,” or moneymakers who collect donations for candidates.”

Corporate Political Spending Transparency: MarketWatch reports that the New York State Common Retirement Fund has successfully passed several shareholder proposals to require “more detailed disclosure” of corporate “direct and indirect political spending.” The article indicates that “transparency advocates are now taking the fight to the next level: the Securities and Exchange Commission. Congressional Democrats want to remove a budget rider that in recent years has prevented the SEC from issuing a rule requiring public companies to disclose their political spending.”

Recurring Contribution Format Thrives: We reported last week that the Federal Election Commission is asking Congress to ban the practice of collecting recurring contributions through prechecked boxes. This week, Politico reports that the practice is alive and well among candidates in the California gubernatorial recall election, although the Governor’s committee stopped using the format this month.

Paying Penalties with Campaign Cash: The New York Daily News reports that a candidate for New York City Comptroller used funds from his State Assembly campaign to pay a fine imposed in connection with his 2009 campaign for City Comptroller. Critics argue that it is a personal use of campaign funds to pay a fine and that state campaign funds cannot be used for a city election. The candidate’s attorney says that it was not a personal use and that campaign funds can be used “in connection with anything arising out of a political campaign.”
Pay-to-Play Investigation: The San Diego Union-Tribune reports that a San Diego developer who was nominated for an ambassadorship in the past administration, is being investigated by a federal grand jury in Washington, D.C. for a possible pay-to-play scheme. Previous reports revealed emails that “implied the San Diego developer would make additional contributions after winning confirmation.” The new report discloses that a grand jury “has begun issuing subpoenas in a criminal investigation into the nomination.”

WEEK OF May 14, 2021

Latest Developments:

The Federal Election Commission unanimously adopted legislative recommendations that it will send to Congress for consideration. The New York Times notes that the proposal, among other things, would “ban political campaigns from guiding donors by default into recurring contributions through prechecked boxes,” a practice that has been controversial.

The Governor of Georgia signed SB 221, which authorizes leadership committees to “accept contributions or make expenditures for the purpose of affecting the outcome of any election or advocating for the election or defeat of any candidate…” The Atlanta Constitution describes the bill as “allowing state leaders to set up committees that could raise money during General Assembly sessions while lobbyists are trying to get legislation passed.” The article notes that it circumvents current contribution limits. The bill takes effect July 1.

The Oregon Secretary of State, Oregon Audits Division, issued Report 2021-14 concerning the Oregon Ethics Commission. The “report includes 14 recommendations to OGEC intended to enhance independence, the complaint process, training, and public outreach.” Most of those recommendations require legislation. The report also lauds the state for having the second lowest corruption rate per capita among U.S. states.

The Wichita, Kansas City Council adopted a Code of Ethics for City of Wichita Officials, which limits gifts to $150 per source per calendar year, requires public officials to report gifts over $50, establishes an Ethics Advisory Board and the office of Ethics Officer, who is the Chair of the new board. The Wichita Eagle points out that the “City Council now has two ethics codes: a city law, which has been in place since 1958, and a new City Council policy.”

The Seattle Ethics Commission, in the Matter of Kshama Sawant, fined a City Council Member for using public resources to promote a ballot measure. She was fined “two times the amount of City funds improperly expended…”

In Case You Missed It:

Virtual Lobbying Here to Stay: Politico reports that “87 percent of government affairs execs see the (videoconferencing) trend continuing, according to a survey conducted by the Public Affairs Council.” Respondents said that it was easier to reach officials and is sometimes more effective.

Business PACs Encouraged to Restart: According to Business Insider, the “National Association of Business PACs (NABPAC) has encouraged its members to ‘move beyond’ the siege by restarting donations… The group’s membership includes more than 250 corporate PACs…”

Big Payback in Corruption Probe: The San Francisco Chronicle reports that a key consultant in the investigation of corruption at City Hall has agreed to pay over a million dollars that “he secured through noncompetitive grants and contracts with the city’s Public Works and Public Utilities Commission…” He “also agreed to pay $317,650 in penalties and fees.”

Nonprofit Disclosure Shield: The Los Angeles Times reveals that, since his initial election, the Mayor of Los Angeles has “reported raising more than $60 million from corporations, foundations, and individuals for the nonprofit Mayor’s Fund for Los Angeles… The Times identified $3.8 million given to the Mayor’s Fund on behalf of Garcetti from donor-advised funds where the identity of the person or company was withheld.” We reported last week on the use of the same device to obscure donations made at the behest of the Governor of California.

WEEK OF May 7, 2021

Latest Developments:

The Supreme Court of Montana issued a decision in COPP v. Montana Republican Party. In response to a complaint by the Montana Democratic Party, the Commissioner of Political Practices had sought campaign finance documents from the Republicans. The Republicans refused to provide anything other than their previously filed campaign documents. The court held the statute does not authorize the Commissioner to subpoena documents.

The Montana Legislature approved SB 319, which authorizes the use of joint fundraising committees, regulates public college student political activity, and disqualifies a judge if the judge has accepted more than half the maximum campaign contribution from a lawyer in the case. The measure goes to the Governor and would take effect July 1 if approved.

The California Fair Political Practices Commission published its monthly collection of new formal and informal advisory opinions, subject to the Commission’s approval at its next meeting. One opinion, A-21-032, is of interest to firms that manage public funds for state and local agencies in California. The advisory opinion confirms that certain outside consultants who manage public investment funds are classified as public officials who must disclose their personal financial assets in public filings.

In Case You Missed It:

Behested Payments Obscured: The Los Angeles Times reports that a million dollar charitable donation made at the behest of the Governor of California was dutifully reported to the Fair Political Practices Commission, yet no one knows the source of the donation. The contribution came from a “donor-advised fund,” which provides anonymity to the actual donor. The fund gave the money through the Silicon Valley Community Foundation. The same article notes that the Kaiser Foundation and Facebook were top contributors at the Governor’s request, providing $34 million and $27 million in donations, respectively, during 2020.

Feds Focus on Indirect Bribes in LA: According to the Los Angeles Times, the federal investigation into corruption in Los Angeles City Hall has turned its focus to “indirect bribes.” Prosecutors allege that “a deputy mayor-turned-real estate consultant worked to arrange ‘indirect bribes’ for city officials by routing the money through those officials’ family members.”

Illinois’ “Very Vibrant Culture of Corruption” Debated: The Chicago Tribune reports that “Two years into a federal corruption investigation …, legislators are scrambling to strengthen Illinois’ government ethics laws.” The article is skeptical that the effort will be successful. “The bipartisan push to pass an ethics overhaul… fits a pattern that has played out over and over again in Springfield: a scandal arises and lawmakers promise to address the problems that are exposed, then in most cases stop short of the most robust recommendations for rooting out wrongdoing.”

Guilty Plea for Bribe: The Detroit News reports that a Detroit Councilmember pleaded guilty in state court to accepting “$15,000 in cash and free car repairs from a Detroit businessman in exchange for his vote on a controversial land deal.” He “was indicted by a federal grand jury in October 2018 on bribery conspiracy and two counts of bribery stemming from the allegations.” The federal charges will be dismissed following the plea in state court.

WEEK OF April 30, 2021

Latest Developments:

The California Fair Political Practices Commission’s transparency portal displays a graph showing an extraordinary spike in charitable contributions made at the behest of public officials in 2020. The spike is due to contributions made at the behest of one person: The Governor. The Los Angeles Times reports that the Governor raised $226 million for various charities last year; his own office received $43 million of the largesse. Payments made at the behest of the Governor are permissible, although the Times notes that the practice “creates the appearance of a pay-to-play system.”

The New York City Conflict of Interest Board [COIB] reviews activity of city officials and requires public disclosure of their financial activity, including the Brooklyn Borough President. Politico reports that this official used a charity to enhance his profile in advance of a likely bid for Mayor. The official “has steered hundreds of thousands of [nonprofit] dollars into an ethical gray area where charity and self-aggrandizement intermingle — with fundraising practices that have drawn the scrutiny of investigators and government watchdog groups.” But the article points out that “all of the organization’s activities are legal and have been authorized by the city’s ethics agency [COIB].”

The New York Joint Commission on Public Ethics met and adopted revisions to its resolution delegating authority to its Executive Director and staff to provide informal advice upon which a person may rely.

Reminders:

The Practising Law Institute presents Advanced Topics in Ethics and Compliance 2021: State and Local Government Contracts on Thursday, May 6 at 1:30 p.m. Eastern (10:30 a.m. Pacific). The half-day program covers eligibility requirements, compliance obligations, and perils and pitfalls of state and local contracts. Topics include pay-to-play laws, lobbying restrictions, blackout periods, and scrutiny from ethics agencies. The Chair of the program is Nielsen Merksamer’s Elli Abdoli. Panelists include Jason Kaune of Nielsen Merksamer. Register here.

In Case You Missed It:

Strange Bedfellows in Supreme Court Case: Time Magazine analyzes the Americans for Prosperity Foundation v. Rodriquez case, which is being heard this week before the Supreme Court. Time notes that action to block the California Attorney General from requiring disclosure of contributors to political nonprofit organizations was brought by the “conservative nonprofit Americans for Prosperity Foundation—which has the backing of Republican mega-donor Charles Koch,” but its position is supported by briefs filed by the “American Civil Liberties Union (ACLU), the NAACP Legal Defense and Education Fund, The Knight First Amendment Institute at Columbia University, the Human Rights Campaign and PEN America.” The League of Women Voters and the Campaign Legal Center are “urging the court to uphold the policy.”

FARA in Play: A CNN opinion piece asserts that the crimes being investigated that led to the recent raid on Rudy Giuliani’s home and office “relate to whether Giuliani acted as an unregistered foreign agent.” The inference is that the former Mayor violated the Foreign Agents Registration Act. The article points out that, “Pursuant to the Foreign Agents Registration Act (FARA), trying to influence US policy at the direction of a foreign actor without registering as an ‘agent of a foreign principal’ is illegal.”

Ohio Campaign Treasurer Charged: WCPO Cincinnati reports that a U.S. Congressman’s “de facto treasurer” was charged with embezzling $1.4 million from the congressman’s campaign. The “political consultant and longtime campaign aide to Rep. Steve Chabot faces federal wire fraud and falsification of records charges…”

Pension Pay-to-Play: A Philadelphia Inquirer investigation reveals that “Pennsylvania’s largest pension fund made a hush-hush investment. It secretly sunk $100 million into a business backed by Pittsburgh tycoon Thomas Tull, a co-owner of the Steelers …. Two days later, campaign records show, Tull showered money on politicians — making nearly $1.5 million in donations spread among national Democrats and Republican alike.” The article notes that “For 25 years, reformers have been trying to stamp out pay to-play in pension-fund investments and the bond business. But critics say the problem has only grown worse.”

Pay-to Play Plea: The Los Angeles Times reports that the former Mayor of Palmdale, California “ pleaded guilty to a single count of perjury Thursday, ending a years-long probe of a pay-to-play scandal where he was accused of raking in $500,000 from consultants who he then helped attain lucrative contracts.” Under the agreement, he will serve a period of probation and “pay roughly $189,000 in restitution.”

WEEK OF April 23, 2021

Latest Developments:

The Federal Election Commission met and, as part of its agenda, discussed a proposal to address so-called “Scam PACs.” According to the proposal, “These proposed changes would not label committees as scam PACs, nor would they require any changes in how committees report their information to the Commission. Rather, the proposed updates would aim to improve how existing data is displayed so that potential contributors could be better informed about the activities of political committees to which they may contribute.” Generally, the proposal would require the Commission’s website to disclose how much of a PAC’s spending goes to direct candidate support. The Commission did not take formal action on the proposal.

The California Fair Political Practices Commission, at its recent meeting, listened to a presentation from staff about the commission’s enforcement process, priorities, and case processing statistics. The FPPC’s caseload remains high, but the recent expansion of the Streamline Enforcement Program is expected to help resolve cases faster and allow staff to focus on higher priority violations. The FPPC concluded, in one of the enforcement matters considered at the meeting, that funds from private corporations deposited into a community college foundation’s account were not donations because they comprised consideration for contracts. They were also sufficient to fund ballot measure contributions made by the Foundation and thereby avoided the prohibited use of public funds for campaign purposes.

Reminders:

In Case You Missed It:

Massachusetts Mulls Lobbyist Prohibition: The former Speaker of the Massachusetts House of Representatives, who was convicted of federal corruption charges in 2011, sought to register to lobby the legislature in 2019, but was rejected based on his conviction. MSN carries a Boston Globe article that explains the issue is now in the hands of the state’s Supreme Court. After a superior court overturned the Secretary of State’s rejection, the Supreme court “is expected to rule on whether [the former Speaker] and others guilty of federal corruption charges should be barred from lobbying state lawmakers, the governor, and other Massachusetts officials for 10 years after their conviction, even if their crimes aren’t directly cited in the state law.”

FEC Reboot Under Review: The New York Times reports the Democrats in congress plan to revise the make-up of the Federal Election Commission. The proposal, in R. 1, would “reconfigure the panel from being evenly divided to having a 3-to-2 split, making stalemates far less likely, giving more power to its presidentially appointed chairman and building in stronger enforcement mechanisms.” The Times notes that under the present configuration in which partisanship is split evenly “the F.E.C. has been an idle bystander, a ‘zombie’ watchdog in the view of many in the campaign finance world from both political parties.”

FEC Opinion Implemented in a Big Way: Following the Federal Election Commission’s adoption of Advisory Opinion 2021-03, which allows officials and candidates to spend campaign funds on security, recently filed campaign reports indicate that “Members of Congress spent hundreds of thousands in campaign funds on security in the first three months of this year.” Politico reports that “Congressional spending on private security has surged among members of both parties since the deadly riot on Jan. 6.”

Shareholders Target Lobbying: Politico describes how “Hundreds of American companies have promised to cut greenhouse gas emissions, but their lobbying hasn’t always jibed with their public promises.” As a result, “Investors have filed a record 13 shareholder proposals targeting climate lobbying this year, up from four filed last year.”

Support “from Amazon to Uber” for Inaugural Committee: Politico describes fundraising by the Biden Inaugural Committee among corporate America. “Biden barred his inaugural committee from taking money from lobbyists and foreign agents as well as fossil fuel companies, but he accepted corporate contributions of up to $1 million and checks of up to $500,000 from individuals.”

WEEK OF April 16, 2021

Latest Developments:

The Governor of Wyoming approved B. 148, which increases various state fees. The measure raises the lobbyist registration fee from $25 to $75 for lobbyists who receive reimbursement or compensation in excess of $500 in a reporting period. It raises the fee for other lobbyists from $5 to $10. The bill takes effect July 1, 2021. Although lobbying is protected speech, jurisdictions are permitted to impose fees to cover their cost of regulation.

The California Fair Political Practices Commission overruled its staff’s view and issued an opinion (Sanders, No. O-21-001 (4/15/21)) that the state’s new limits on contributions to local candidates in jurisdictions that otherwise do not have a limit are not aggregated with contributions made before the limit took effect. The new law, established by AB 571, limits contributions per election, thus applicable to periods beyond a single calendar year. Accordingly, many donors questioned whether their contributions to candidates made before January 1,2021 would restrict contribution activity after that date for current election cycles.

In Case You Missed It:

California SOS List: Cal Matters reports that the California Secretary of State has a growing list of unpaid fines levied on California politicians, including judges and legislators. The Secretary of State’s office has “allowed some of the largest fines to languish for many years with no consequences to those who are supposed to pay up.” Some are small, the “political equivalent of a parking ticket.” Some are still contested; the Assembly Speaker’s campaign, which has a pending fine on this list, defended itself by noting that, “‘While it’s in dispute, we are not going to pay it.’”

Massachusetts Investigates Laundered Contributions: The Massachusetts Office of Campaign and Political Finance has referred to the state’s Attorney General allegations that a State Senator laundered contributions to his wife’s campaign. MSN carries a Boston Globe article detailing how the Senator “made a series of rapid-fire and hefty donations to the Massachusetts Republican Party, totaling $137,000. And in nearly every instance, the GOP quickly spent similar — if not identical — amounts helping another candidate: the senator’s wife.” The Senator and his wife “have denied they violated any campaign finance laws.”

Big Win for Alderman in Campaign Finance: The Chicago Board of Ethics, which imposed a fine of $145,000 against a Chicago Alderman for campaign finance violations, reversed course and dropped the fine to $5,000. WTTW reports that the new fine amount is equal to the fine imposed on the corporation that made the excessive contribution. The Alderman must still return the excess contribution to the corporation, which is a city contractor with 80 city contracts over the past 3 decades, including four worth over $90 million.

First Plea in Hawaii Corruption Case: According to the Honolulu Civil Beat, a city employee “pleaded guilty to honest services wire fraud in connection with her acceptance of at least $28,000 from architect William Wong.” She faces up to 20 years in prison.

Family Pay-to-Play: A Cleveland Councilwoman running for a U.S. House seat vacated by the recently confirmed HUD Secretary has been criticized for taking money from a city contractor. The Intercept reports, that when she first ran for city office, she promised “to “recuse herself from county contracts with ties to [her fiancé] Mark Perkins as necessary.’” According to the article, she later “deemed recusal unnecessary and voted with her colleagues to give a nearly $7 million contract to [a company that subcontracts with her fiancé’s company]… Ten weeks later, one of the firm’s owners helped organize a fundraiser that bankrolled a significant portion of her reelection campaign.” She has voted to approve several other contracts with family ties and received a number of contributions from related parties.

WEEK OF April 9, 2021

Latest Developments:

The United States Department of Justice announced that a “New Jersey woman was sentenced [this week] to two years in prison for engaging in a bribery and procurement fraud scheme while she served as a contracting officer for the Broadcasting Board of Governors (BBG).” Diane D. Sturgis was accused of having “sold out her position by receiving bribe payments in exchange for providing preferential treatment to a contracting firm that received millions of dollars in taxpayer money.” The DOJ contended that Diane D. Sturgis arranged with the firm’s owner “to fill several contracting positions in Sturgis’ office in exchange for initial payments totaling at least $330,000…[and] that the firm would nominally hire Sturgis’ relative to fill one of these positions in exchange for preferential treatment and the performance of official acts benefitting the firm.”

The New Mexico Ethics Commission, the Santa Fe New Mexican reports, dismissed two complaints against the former state House speaker Brian Egolf related to his support for a bill that would allow civil rights violations against state government agencies. Egolf is an attorney in Santa Fe and the complaints claimed he “stood to benefit from the law because it originally included a provision guaranteeing defendants who lose their cases will have to pay the plaintiff’s attorney’s fees.” The Commission claimed that it had no jurisdiction against the claims Egolf “used his legislative office for personal gain and that he failed to discharge his legislative duties in an ethical manner,., A third charge—that Egolf failed to communicate a potential conflict of interest — is still under review by the commission’s general counsel, the panel said.”

In Case You Missed It:

Limits off for Illinois Governor’s Race: The Chicago Sun-Times reports that Illinois Governor’s race next year will have no campaign contribution limits. Both the Governor and a challenger have contributed significant amounts to their own campaigns, amounting to enough “to lift all fundraising caps on the race.” A University of Illinois professor explained, “The caps that do exist are easy to break, and then candidates can just loan their own campaign whatever the limit is for that particular office, and they break the cap, and then they can get as much money from big donors as they want.”.

Corporate Donations Pause, Individual Donations Surge: As multiple items in these pages covered in the past weeks, corporate PACs have widely paused or slowed candidate contributions in the wake of the January Capitol Hill riots. Now, an analysis by the Wall Street Journal of first quarter fundraising reports for US House and Senatorial committees show staggering fundraising numbers propelled by individual donors with small contributions. For example, House Republican Leader Kevin McCarthy reports that he “raised $27.1 million during the first quarter of 2021… the most money any Republican representative has ever raised in a quarter.” Most staggering is that “it was done almost entirely without big-business support. Only about $450,000, or less than 2%, came from corporate political-action committees.” In response, the Journal asserts that “some firms are now quietly ‘unpausing’ donations.”

White House Welcomes (Some) Lobbyists: The Hill reports that the White house has been hiring former lobbyists to work in the administration. The article notes that “Five registered lobbyists or people who were registered within the last year were on the Biden transition team…. They all came from unions and received waivers to work in the administration. Had they come from corporate America, watchdogs say it would’ve been a different story.”

WEEK OF April 2, 2021

Latest Developments:

The Federal Election Commission issued Advisory Opinion 2021-03, which permits “Members of the United State Senate and United States House of Representatives… (to) use campaign funds to pay for bona fide, legitimate, professional personal security personnel to protect themselves and their immediate families due to threats arising from their status as officeholders…”

The Governor of Arizona approved B. 1104, which changes campaign finance reporting requirements. Instead of requiring that reports identify individuals who contribute more than $50, reports will now require identification of in-state individuals who contribute more than $100, and identification of out-of-state individuals who contribute any amount. The measure takes effect 90 days after the legislature adjourns.

The United States Supreme Court unanimously held in Facebook, Inc. v. Duguid that the Telephone Consumer Protection Act (TCPA) only prohibits robocalls/robotexts made using certain equipment. The Court overturned a Ninth Circuit decision that broadly applied the TCPA’s prohibition to any system that could automatically dial stored numbers, instead focusing on the text of the TCPA that limits the prohibition specifically to calls made using equipment that can use “a random or sequential number generator” to store or produce numbers to be called and then dials them. The decision will mean the TCPA prohibits fewer automated calls for fundraising and campaign activity.

In Case You Missed It:

Ethics Complaint for Zooming: The Baltimore Sun reports that Dr. Terri Hill, a plastic surgeon and Maryland State Legislator, “has acknowledged she twice logged in from the OR, once in February to testify on a bill and once for about an hour this month during a voting session.” In reaction, another physician “filed complaints with the Maryland Board of Physicians and the General Assembly’s Joint Committee on Legislative Ethics.”

Pay-to-Play Investigation on High: According to the Chicago Tribune, federal investigators “have been scrutinizing campaign donations and other steps Green Thumb Industries took as it sought to secure growing and distribution licenses in Illinois and several other states.” While details have not emerged, “GTI’s executives and affiliates have spread cash to a number of politicians as well as a political action committee that were instrumental in the marijuana legalization effort…”

Aloha Bribes and Gifts: Honolulu Civil Beat reports that five Honolulu Planning Department Employees have been indicted on federal charges for accepting various bribes and gifts. One cooperating contractor’s attorney explained, “They say ‘Hey if you want to get your permit passed through, you’re going to have to pay.’ And if they refuse to pay, they get kicked to the bottom of the list and their projects don’t get approved.”

Virtual Lobbying Gains Acceptance: The Hill suggests that virtual lobbying is probably here to stay. The article quotes an executive with the Association of Equipment Manufacturers, who opined, “‘The fact that we can much, much more easily gather three or four CEOs for a half-day or a day worth of meetings with lawmakers in a much, much, much easier and cost-effective way, that’s a game-changer. We never thought to do that before.’” Lobbying in the future is “more likely to consist of a hybrid of meetings online and in Washington, along with fewer trips overall.”

WEEK OF March 26, 2021

Latest Developments:

The United States Court of Appeals for the Fourth Circuit reinstated a guilty verdict in United States v. Rafiekian. The defendant was accused of failing to register under the Foreign Agents Registration Act (FARA) when lobbying for Turkish interests. Politico quotes a FARA attorney who opines that the case “‘further strengthens the department’s zeal in going forward’ with its more aggressive pursuit of violations of the previously sleepy law.”

The Governor of Nevada signed AB 110, which revises the definition of “lobbyist.” The bill deletes the requirement that a lobbyist be physically present in the state capitol building or other legislative buildings and creates an additional exception from registration for persons who communicate with legislators only on an “infrequent or irregular basis.” The bill took effect immediately. This is Reno explains that lobbyists have until April 1 to register for the current session, “something they haven’t had to do this session,” because lobbyists “have not been allowed inside the legislative building…”

The Georgia Legislature approved SB 221, which permits the creation of “leadership committees.” Under the bill, these committees would be a “separate legal entity from a candidate’s campaign committee.” The Governor and Lieutenant Governor could each have a leadership committee; each Legislative caucus may establish two leadership committees. These committees are not subject to the state’s contribution limits. Funds could be used to support or defeat any candidate and used for expenses of holding office.

The Oklahoma Ethics Commission published revised contribution limits for the 2022 elections. The limit for individuals and other candidate committees contributing to a candidate committee increased from $2,800 to $2,900 per election.

The Governor of Arkansas signed SB 183, which bans the use of campaign funds to pay fines assessed by the Arkansas Ethics Commission.

The City of Aurora, Colorado approved an ordinance (p. 369) to require annual lobbyist registration and quarterly reporting. The ordinance takes effect August 1, 2021.

The Washington Public Disclosure Commission adopted permanent regulations governing contributions from foreign nationals. (Additional changes were adopted at the March meeting.) The regulation takes effect 30 days following formal publication.

In Case You Missed It:

Nevada Charges: The Associated Press reports that a Las Vegas area legislator, who resigned in January, is now charged with “misusing campaign funds and filing false voter registration and campaign finance records.” The 10 felony and two misdemeanor charges include allegations that he “misappropriated at least $11,150 in campaign funds.”

Bring Back your Money: According to CNBC, congressional fundraisers are lobbying corporations to “resume political donations after many suspended their contributions… Democratic fundraisers are urging companies to resume donations, citing their determination to oust the Republican lawmakers who encouraged and espoused the false election narrative that triggered the riot. On the other hand, Republican fundraisers have warned donors about Democrats’ intention to raise the corporate tax rate.”

Capitol Closed but Lobbyists Enter: Despite the closure of the Hawaiian State Capitol building to the public, Honolulu Civil Beat reports that “some individuals, including registered lobbyists, have been able to gain an audience with lawmakers in their offices after scheduling appointments.

WEEK OF March 19, 2021

Latest Developments:

The Governor of California issued a memo to his staff and department heads expanding a “ban on political consultants lobbying him and his administration to include unpaid advisers.” According to the Sacramento Bee, the Governor’s staff “asked the state’s Fair Political Practices Commission for advice on how to strengthen its ethics policies.” The San Francisco Chroni cle clarifies that it effectively bans “the lobbyist and longtime Newsom adviser whose 50th birthday dinner at the French Laundry in November sparked intense scrutiny of their relationship.”

The City of Newark, New Jersey repealed its pay-to-play ordinance. Tap Into Newark reports that the city repealed a 2011 ordinance with the intent to revert to the general state rules for developers. The change will mean “a $300 contribution per candidate ceiling” for contractors. Contractors could contribute more than $300 if subject to a “fair and open” bid competition.

The South Dakota Legislature approved a B. 103, which provides individuals who support a nonprofit corporation with a right of personal privacy regarding the release of personal affiliation information by a public agency. That protection includes preventing state agencies from requiring nonprofits to provide personal affiliation information, releasing or otherwise publicly disclosing that information, or requesting a government contractor to provide a list of nonprofit corporations to which it has provided support. The bill is pending on the Governor’s desk

In Case You Missed It:

PAC Contributions “Dropped off the Table”: Roll Call reports that corporate contributions are “plummeting.” The article notes a “dramatic plunge in contributions by all corporate PACs following the deadly Jan. 6 riots on Capitol Hill.” Additionally, “‘COVID is a big factor,’” with corporate PACs reluctant to give, “If we’re not able to do events in person or do trips…”

Lobbyists Seek Diversity: Politico describes a new group, “the Diversity in Government Relations Coalition,” which has been formed to broaden the make-up of participants who lobby in Washington. The group intends “to conduct a demographic survey of the downtown world, from lobbying firms to trade groups to think tanks.” The group hopes to have a report by the end of the year and intends to promote “diversity, equity and inclusion” in lobbying organizations.
Probation for Quid Pro Quo: NewJersey.com reports that the wife of the Mayor of Morristown, New Jersey was sentenced to probation for accepting a $10,000 campaign contribution “from a tax attorney who allegedly had been looking to lock-down lucrative municipal contracts.” She was “charged with bribery, but pleaded guilty to reduced charges in February of falsifying a campaign finance report.”

WEEK OF March 12, 2021

Latest Developments:

The Federal Lobbyist Registration threshold has increased from $13,000 in activity per quarter to $14,000 per quarter. The increase is effective for activity from January 1, 2021. As the Senate’s website explains, “An organization employing in-house lobbyists whose total expenses in connection with lobbying activities do not exceed and are not expected to exceed $14,000 in the quarterly period during which the registration would be made is not required to be registered.”

The departure of former longtime Illinois House Speaker Michael Madigan in the wake of ethics scandals has prompted bipartisan proposals for wholesale ethics reforms in the Illinois General Assembly. Local Springfield Media reports that former Speaker Madigan delayed ethics reforms for over a decade, but that the proliferation of ethics scandals during those years have heighted urgency and now “[b]oth Democrats and Republicans expect ethics reform to pass during this spring session, whether that is individual bills or a large reform package.”

Evolving Criteria for Canceling PAC Contributions: Bloomberg reports on how, in light of recent election related violence, many corporations are considering revising their PAC contribution standards, including soliciting input from employees and shareholders. Corporate PACs often reevaluate “giving criteria and respond to current events or controversial statements made by a candidate, but the scale and scope of the public reckoning is new These corporate PACs must figure out if they are “really going to shut down giving to somebody in a key position, who maybe has been the biggest champion for [their] cause on Capitol Hill because of one vote that had nothing to do with [their] cause.” Reuters is also covering this phenomenon and the Conference Board earlier surveyed companies who suspended donations after the Capitol Riots.

In Case You Missed It:

Nepotism & Behested Payments: The Charleston Gazette-Mail reports that the South Carolina Ethics Commission found that a county prosecutor violated the state’s ethics act when she hired her boyfriend as an assistant prosecutor. The article notes that the commission also concluded that an “organization that lobbies the Legislature may recognize a legislator by making a charitable contribution in the legislator’s name to a local homeless shelter in excess of the $25 limit on gifts in the Ethics Act.” Although no limit is imposed on the behested payments, they must still be included on the lobbyist’s disclosure report.

All in the Family: Father-son developers in Broward County, Florida find themselves in jail for a bribery scandal called one of the most notorious in the county’s history. The South Florida Sun Sentinel reports that “each [was] charged with six counts of extortion, two counts of racketeering and one count of organized fraud.” The developers had had a history of bribes “that led to a corruption scandal that saw a county commissioner imprisoned and political careers from School Board to City Hall maimed or destroyed… Prosecutors say they carried out a plan to ruin the current owner [of a property associated with the previous scandal] unless they were paid more than $3 million.”

The Massachusetts Office of Campaign and Political Finance issued Advisory Opinion 21-02 permitting Constitutional Officers and Legislators to use campaign funds to purchase “bullet-proof vests/body armor, pepper spray, and gas masks for themselves and/or their staff members.” The opinion holds that “In light of recent events in our nation’s capital, it is reasonable for c:andidates and their staff members to be concerned about their personal security…” The opinion allows the use of campaign funds “provided the expenditures are not primarily for the candidate’s or any other person’s personal use.” Note that the Federal Election Commission has a similar issue pending before it regarding use of campaign funds for personal security, Advisory Opinion Request 2021-03.
More Pleas in SF Corruption: The San Francisco Chronicle reports that the former Director of Neighborhood Services has “agreed to plead guilty to charges of conspiracy to commit money laundering and will cooperate with the continuing federal investigation into City Hall corruption.” She was the girlfriend of the Public Works Director who is “accused of being the key player in a scheme involving contractors, department heads and nonprofit groups.”

WEEK OF March 5, 2021

Latest Developments:

The Governor of Montana signed SB 1, which revises the definition of “lobbying.” The bill deleted references to “public officials” as the object of lobby efforts and instead uses the term “legislator” to clarify that lobbying pertains to influencing actions by legislators or the legislature. The measure also reduces the time the Commissioner of Political Practices is required to keep lobby reports from 10 years to four years.

The Office of Congressional Ethics issued a report finding that a Member of Congress “reported campaign disbursements that may not be legitimate and verifiable campaign expenditures attributable to bona fide campaign or political purposes.” It also found that “there is substantial reason to believe that Rep. Palazzo converted funds to personal use to pay expenses that were not legitimate…” The Hill Reports that the main allegations involve paying rent for a house the congressman owned that was allegedly used for campaign purposes.

The United States House of Representatives passed R. 1, a comprehensive measure that “addresses voter access, election integrity and security, campaign finance, and ethics” by, among other things, “expanding the prohibition on campaign spending by foreign nationals, requiring additional disclosure of campaign-related fundraising and spending, requiring additional disclaimers regarding certain political advertising, and establishing an alternative campaign funding system for certain federal offices.” The measure goes to the Senate for consideration.

The Washington State Attorney General filed a lawsuit against Google alleging that the company “failed to maintain documents and books of account with statutorily required information open for public inspection for each political advertisement or electioneering communication that Google accepted or provided for Washington State or local election campaigns since June 4, 2018.” The complaint also alleges that Google failed to file required reports. According to the Attorney General’s press release, despite Google’s announced moratorium on accepting political advertising in the state, “Washington political ads continued to appear on the platform.”

In Case You Missed It:

Corporate Political Activity Under Scrutiny: The Washington Post reports that corporations that paused their contribution activity after January 6 are nevertheless under pressure by some shareholders who seek corporate disclosure of political activity. It also points out that “A Democratic-led SEC looks primed to deliver a long-sought victory for corporate political disclosure … to make such disclosure a blanket requirement for public companies.” According to Politico, the nominee to head the SEC has acknowledged in Senate confirmation hearings that “the agency would raise pressure on corporations to disclose their political spending activities, a long-running tension between SEC officials, big business and Democrats.”

Contractors Penalized for Corruption: The San Francisco Chronicle reveals that five city contractors implicated in the City Hall corruption scandal have been barred from receiving future city contracts. The San Francisco Chronicle also reports about a settlement with the city’s garbage collection contractor under which residents will receive nearly $100 million in rebates. According to the City Attorney’s press release, the agreement will also prohibit the contractor “from making any gift to any City employee or any contribution to a nonprofit at the behest of a City employee.”

The Massachusetts Office of Campaign and Political Finance has a new Executive Director, William Campbell, who currently serves as the Woburn (suburban Boston) City Clerk. com noted that Campbell has previously run for state representative and Secretary of State. The current Secretary of State, who beat Campbell in the 2010 General Election, was on the search committee; he made the motion “to offer the job to Campbell and there was no dissent.”
Remote Lobbyist Entertainment: The Albuquerque Journal reports that despite the New Mexico Capitol being closed to the public, including lobbyists, lobbyists are still “picking up the tab” for food for legislators. “Lobbyists are trying to do their job under difficult conditions… A free lunch – or dinner – is built into the culture of the Roundhouse… One lobbyist told the Journal he just spent almost $490 on a recent lunch for a legislative committee – food delivered to the Roundhouse, without the lobbyist entering the building.”

WEEK OF February 26, 2021

Latest Developments:

The Ohio Secretary of State’s Office issued a revised campaign contribution limit chart for the period from February 25, 2021 to February 24, 2023. For example, the limit on contributions from a PAC to a statewide candidate, such as a candidate for Governor, increases from $13,292.35 to $13,704.41 per election.

The United States Department of Justice announced that a former Member of the Massachusetts House of Representatives “pleaded guilty … to illegally using campaign funds to pay for his personal expenses, defrauding a bank to obtain loans to purchase his home and repay his personal debts, and collecting income that he failed to report to the IRS.” According to the agency’s press release, the former member “was heavily in debt and gambled extensively at area casinos and online, and then used thousands of dollars in campaign funds to pay for various personal expenses such as dues at a local golf club, rental cars to travel to casinos, flowers for his girlfriend, gas, hotels, and restaurants.”

In Case You Missed It:

A. Ethics Commission Whistleblower: According to the Los Angeles Times, a former employee of the city’s Ethics Commission has come forward to charge that “a member of the City Council had ‘threatened to cut the Ethics Commission’s budget if they did not give more permissive advice’ on certain gift rules.” The current Executive Director of the Commission issued a denial from the former head of the commission, who was in charge at the time the threat was allegedly made.

Nevada Access: A group of lobbyists filed suit in federal court to obtain access to the Nevada Capitol Building. The Las Vegas Review-Journal reports that the lawsuit asserts “that emergency directives restricting access to lawmakers ‘plainly violate’ constitutional rights to free speech and to petition the government.”
Something Fishy in Wisconsin: The New York Times reports that a man dubbed Wisconsin’s “Sturgeon General” has been “accused of accepting $20,000 worth of caviar in an illegal bartering scheme.” The man, a biologist employed by the state’s Department of Natural Resources, “oversees the traditional sturgeon spearing season in Lake Winnebago and its watershed.” He allegedly “accepted at least $20,000 in jars of caviar in return for supplying to a caviar processor eggs that had been collected under the guise of research.”

WEEK OF February 19, 2021

Latest Developments:

The Governor of Montana issued Executive Order 3-2021, which repeals the Previous Governor’s Executive Order 15-2018. That prior order required certain state contractors to disclose their political expenditures, including contributions and electioneering communications.

The Chair of the New York Joint Commission on Public Ethics resigned from his position. The Governor appointed a new chair, Camille Joseph Varlack. The Albany Times Union describes JCOPE’s accomplishments and controversies under the now former chair and notes that JCOPE declined comment on the reasons for the chair’s departure.

The Los Angeles City Ethics Commission announced fines totaling $162,500 against five people and entities that failed to register as lobbyists. The press release quotes the President of the Commission as pointing out that, “The public has a vital interest in knowing who is attempting to influence City action.”

In Case You Missed It:

12 Years and $18 million for Campaign/Lobby Violations: Politico reports that Imaad Zuberi “was sentenced Thursday to 12 years behind bars.” He “pleaded guilty to charges of tax evasion, campaign finance violations and failing to register as a foreign agent” and must also “pay nearly $16 million in restitution and a nearly $2 million fine.”

First S.F. Corruption Sentence: The first person sentenced in the ever-widening corruption scandal that has engulfed San Francisco City Hall received one year in federal prison. According to the San Jose Mercury News, Florence Kong “pleaded guilty last year to bribing disgraced ex-public works director Mohammed Nuru with a $36,500 Rolex watch, paying for improvements to his summer home, and to lying to the FBI when they confronted her. In exchange, Nuru gave her construction recycling business contracts with the city.”

HR 1 Moves Forward: Roll Call reports that the House of Representatives plans a floor vote on HR 1, the comprehensive measure that “contains changes to campaign finance, voting and ethics laws.” The House is expected to take a vote the first week of March. The Majority Leader “called HR 1 ‘the centerpiece of Democrats’ agenda to make government more transparent and accountable to the people it serves.’”

WEEK OF February 12, 2021

Latest Developments:

The Los Angeles County District Attorney announced the indictment of the former Mayor of Maywood, the former City Manager, and the former Building and Planning Director, among others, for corruption involving campaign contributions and bribes in exchange for city contracts. Maywood is a tiny city in the center of Los Angele County. The Los Angeles Times explains that the ex-Mayor “took donations during his 2015 City Council campaign from contributors whom he promised to later reward with city work.”

New Mexico Ethics Commission approved Advisory Opinion 2021-05. The opinion permits a state legislator, notwithstanding the state’s blackout period, to collect campaign contributions during the legislative session for a campaign for federal office.

In Case You Missed It:

Aloha, Please: According to the Honolulu Civil Beat, “lawmakers want their ‘gifts of aloha’ back.”Gifts of aloha are described as “generally small food items, especially from lobbyists.” The Hawaii Ethics Commission’s new gift regulations banned “gifts of aloha.” “A handful of bills introduced in the Legislature this session would” revise the gift limit to “$25, the amount at which lawmakers were generally allowed to accept food gifts prior to the rules going into effect in November.”

Nevada’s Virtual Lobbying: The Nevada legislature is attempting to make adjustments to its current definition of lobbying given how virtual lobbying during the pandemic has lessened state lobbyist registration. Currently, Nevada law requires registration of a lobbyist who “[a]ppears in person in the Legislative Building or any other building in which the Legislature or any of its standing committees hold meetings.” AB 110 would strike that language and retain the lobbyist trigger as one who “communicates directly with a member of the Legislative Branch on behalf of someone other than himself or herself to influence legislative action.”

Personal Use in Mississippi: The Northeast Mississippi Daily Journal Reports that “Mississippi politicians continue to personally profit from their campaign funds, new state filings show, a practice that’s illegal in many other states and at the federal level.” One state official “paid himself $30,000 from his campaign account,” and noted that the expenditure was “‘personal.’” The article points out that the law was changed in 2017, but pre-2018 campaign funds can be used for personal expenses or simply pocketed when officials leave office.

More FARA Prosecutions Predicted: Politico reports that the Justice Department prosecutor who has “spearheaded the department’s crackdown on unregistered foreign agents” is leaving for private practice but he “predicted that DOJ will continue the crackdown under the Biden administration.” Under his leadership, “the department has seen foreign agent registrations soar, and reached record levels last year… as did the number of investigations opened.”

WEEK OF February 5, 2021

Reminders:

Contribution Limits Update: Nielsen Merksamer tracks contribution limit changes at the federal, state, and select local levels. During this period in the election cycle (between the November 2020 election and the beginning of 2021) we expect at least 11 states will adjust their contribution limits. In addition, a few states adjust lobbyist registration fees, lobbyist registration thresholds, and gift limits. We track those as well.

Latest Developments:

The Federal Election Commission announced an increase in several federal campaign contribution limits which are indexed for inflation. Notably, the FEC increased the amount individuals may contribute to a candidate from $2,800 to $2,900 per election. The Commission also adjusted the limits for contributions from individuals and non-multicandidate PACS to national party committees and their non-campaign accounts.

Tennessee Bureau of Ethics and Campaign Finance revised contributions limits for 2021 and 2022. The new limits increase permissible PAC contributions from $12,300 to $12,700 per election for gubernatorial and state senate candidates and from $8,100 to $8,300 per election for other state and local offices. Individual contribution limits increase from $4,200 to $4,300 per election for contributions to gubernatorial candidates and state senate candidates.

San Diego City and County: The San Diego City Ethics Commission increased Contribution limits for candidates running for City Council in 2022. The adjustment increases limits from $600 to $650 per election from individuals. The city bans corporate contributions. Meanwhile, the San Diego County Registrar of Voters increased contribution limits for 2021 from $850 to $900 per election for county candidates.

In Case You Missed It:

Push Against So-Called “Dark Money”: The Hill reports that “Top Democrats in the Senate are urging Treasury Secretary Janet Yellen to crack down on dark money spending in political campaigns.” Two Senators sent a letter to the Secretary asking her to “undertake a careful review of what the IRS has done, reform its approach, and rein in abuse by ‘dark money’ organizations.” The article notes that the pair want the Treasury Department to back a lawsuit by the California Attorney General regarding nonprofit disclosure and enforce existing 501(c)(4) regulations.

Better than “the Dog Ate my Homework”: The Associated Press reports that a Tennessee legislator told the Tennessee Bureau of Ethics and Campaign Finance that he can’t file his campaign disclosure report because the FBI took all his campaign finance records. The article quotes his letter stating, “‘I will get the information to you as soon as the documents / computers are released.’” The article also notes that “Federal authorities have not indicated what they are investigating after showing up to search the homes and legislative offices of [several legislators].”
Drive for Money: A Colorado Congresswoman “paid herself more than $22,000 in mileage reimbursements from her campaign account last year.” According to the Denver Post, as reported by MSN, her “mileage reimbursement ‘raises red flags,’ ethics experts say.” The article notes that she “would have had to drive 36,870 miles in just over seven months,” to justify one of the payments. Her campaign said that “She traveled to every nook and cranny of the district to speak with and hear from the people about their concerns.” The commentary acknowledges that the congresswoman, “a prolific in-person campaigner, traveled 17,623 miles between public events last year, according to the Post’s analysis.”

WEEK OF January 29, 2021

Latest Developments:

The Governor of Mississippi’s nonprofit organization, For All Mississippi, which was formed to organize “the 2020 gubernatorial inauguration for Governor-elect Tate Reeves,” filed its