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

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

WEEK OF JULY 13, 2018

Latest Developments:

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

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

In case you missed it:

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

WEEK OF JULY 6, 2018

Latest Developments:

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

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

In case you missed it:

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

WEEK OF JUNE 29, 2018

Latest Developments:

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

In case you missed it:

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

WEEK OF JUNE 22, 2018

Latest Developments:

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

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

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

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

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

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

In case you missed it:

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

WEEK OF JUNE 15, 2018

Latest Developments:

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

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

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

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

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

In case you missed it:

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

WEEK OF JUNE 8, 2018

Latest Developments:

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

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

In case you missed it:

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

WEEK OF JUNE 1, 2018

Latest Developments:

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

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

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

In case you missed it:

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

WEEK OF MAY 25, 2018

Latest Developments:

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

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

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

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

In case you missed it:

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

WEEK OF MAY 18, 2018

Latest Developments:

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

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

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

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

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

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

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

In case you missed it:

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

WEEK OF MAY 11, 2018

Latest Developments:

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

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

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

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

In case you missed it:

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

WEEK OF MAY 4, 2018

Latest Developments:

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

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

In case you missed it:

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

WEEK OF APRIL 27, 2018

Latest Developments:

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

In case you missed it:

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

WEEK OF APRIL 20, 2018

Latest Developments:

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

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

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

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

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

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

In case you missed it:

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

WEEK OF APRIL 13, 2018

Latest Developments:

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

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

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

In case you missed it:

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

WEEK OF APRIL 6, 2018

Latest Developments:

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

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

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

In case you missed it:

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

WEEK OF MARCH 30, 2018

Latest Developments:

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

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

In case you missed it:

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

WEEK OF MARCH 23, 2018

Latest Developments:

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

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

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

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

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

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

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

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

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

In case you missed it:

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

WEEK OF MARCH 16, 2018

Latest Developments:

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

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

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

In case you missed it:

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

WEEK OF MARCH 9, 2018

Latest Developments:

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

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

In case you missed it:

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

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

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

WEEK OF MARCH 2, 2018

Latest Developments:

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

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

In case you missed it:

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

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

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

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

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


WEEK OF FEBRUARY 23, 2018

Latest Developments:

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

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

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

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

In case you missed it:

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

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

WEEK OF FEBRUARY 16, 2018

Latest Developments:

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

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

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

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

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

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

In case you missed it:

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

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

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

WEEK OF FEBRUARY 9, 2018

Latest Developments:

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

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

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

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

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

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

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

In case you missed it:

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

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

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

Save the dates….

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

Research for clients….

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