Supreme Court Requires Donor Disclosure by 501(c) Organizations

Since the Supreme Court’s 2010 ruling in Citizens United, spending by outside groups and non-political organizations has increased in federal elections. Many of these groups are organized as 501(c)(4) social-welfare organizations and 501(c)(6) trade associations. Under current IRS rules, these groups are not required to disclose their donors and may engage in political activity, including making independent-expenditures, provided the political activity is not the organization’s primary purpose.

Previously, under FEC regulations, such groups and organizations were only required to identify donors who contributed over $200 for the purpose of influencing a federal election if the contribution was earmarked for a specific independent expenditure; general contributions were not required to be disclosed. Last month, in a case brought against the Federal Election Commission and Crossroads GPS by the Committee for Responsibility and Ethics in Washington, the U.S. District Court for the District of Columbia struck down the FEC regulation allowing 501(c)(4) and 501(c)(6) organizations to shield their donors, stating that the regulation was overly narrow and inconsistent with the Federal Election Campaign Act. Crossroads GPS appealed the decision, lost on appeal, and filed an application for a stay with the U.S. Supreme Court, which was denied.

The Supreme Court’s denial for a stay has important implications for 501(c)(4) and 501(c)(6) organizations. Going forward, nonprofit organizations that file independent expenditure reports with the FEC may be required to disclose ALL donors who contribute more than $200 toward influencing a federal election, regardless of whether that particular contribution was earmarked for a particular independent expenditure. The FEC has not issued any rules or guidance regarding this expanded disclosure requirement, but 501(c)(4) and 501 (c)(6) organizations should know that this new disclosure rule may require a change in their fundraising and disclosure processes.

Prior to the Supreme Court’s ruling, many donors felt comfort in giving to 501(c)(4) and 501(c)(6) organizations knowing they their identities would not be publicly disclosed. Now, with less than seven weeks until the 2018 Mid-Term Elections, this recent decision has these groups and their donors wondering what is next. At a minimum, groups considering running ads in connection with the 2018 Mid-Term Elections should evaluate their strategy to determine whether the ads fall within the category of independent expenditures (that would be subject to FEC reporting) or issue advocacy (that would be exempt from current reporting requirements). If disclosure is a concern, donors must also make sure that they fully understand whether a group to which they wish to make a donation plans to engage in independent expenditures.

While the finer details will not be known until the FEC issues temporary guidance or regulations, one thing is clear: the fact that the rules of the road have changed with less than two months before Mid-Term Elections means that many groups and donors may need to re-evaluate their strategy with respect to participation in the upcoming election. For more information on what this ruling means with respect to your plans for participating in the 2018 Mid-Term Elections, please contact Rebecca Moll Freed, Esq., Chair of the Corporate Political Activity Law Group, at rfreed@genovaburns.com or 973-230-2075, Rajiv D. Parikh, Esq. at rparikh@genovaburns.com or 973-535-4446, Avi D. Kelin, Esq. at akelin@genovaburns.com or 973-646-3267, or Paul M. Rozenberg, Esq. at prozenberg@genovaburns.com or 973-646-3283.

2016 Presidential Conventions: What Delegates and Attendees Need to Know

With the 2016 presidential conventions underway and as the November presidential election draws near, this post is part of a series on what different entities and groups need to know about their political activity as the 2016 election approaches. This post examines the rules governing contributions made to convention delegates under federal law.

Permissible Contributions to Delegates

Events and gifts paid for by the host cities (in this case, Cleveland, Ohio and Philadelphia, Pennsylvania) may be accepted by delegates. It is also permissible for a delegate to accept any gift paid for by any unit of federal, state, or local government. Delegates are also permitted to accept meals, lodging, entertainment, and transportation from a political organization in connection with a campaign or fundraising event that the organization is sponsoring.

Classification of Funds Raised and Spent for Delegate Activity

Funds raised and spent for the purpose of furthering delegate selection are considered contributions and expenditures made for the purpose of influencing a federal election. There are no limitations on the monetary amount of contributions from permissible sources to delegates for the purpose of furthering their own selection as delegates. Once selected, travel and subsistence expenses related to the delegate selection process and the national nominating convention are considered expenditures. Additional considerations may arise when a federal candidate or officeholder attends the convention as a delegate.

Who is Prohibited from Contributing to a Delegate?

Individual delegates may not accept contributions from sources prohibited from making contributions in connection with federal elections. These sources include:

  • Corporations (including banks, trade associations, and non-profit corporations);
  • Labor organizations;
  • Foreign nationals or businesses (except lawful permanent residents); and
  • Federal government contractors, such as partnerships and sole proprietors with federal contracts.

With the Republican National Convention underway and the Democratic National Convention is only a few days away, it is not too late for delegates and their potential supporters to be aware of the rules.

Babatunde Odubekun, a summer associate at Genova Burns, assisted in the preparation of this post.

Independence, Coordination & Super PACs in the 2016 Presidential Election

Yesterday we celebrated Independence Day. In the next three weeks, the Nation will focus on the Republican and Democratic National Conventions. We cannot turn on the television without catching a political ad. Some ads will be run by the candidates themselves. Based on recent reports filed with the Federal Election Commission (“FEC”), there is a good chance that many ads will be run by Super PACs.

Although Super PACs are required to disclose their donors, it is not always clear who is behind a Super PAC ad and whether a Super PAC is truly independent from a candidate, a party or their agents. The FEC has, therefore, adopted a three-prong test to determine whether a Super PAC is acting independently and is, therefore, entitled to receive unlimited contributions.

Under the FEC’s coordination test, when an election-related communication (content prong) has been paid for by a third-party (payment prong), the FEC will ask the following questions (conduct prong) to determine whether the ad was coordinated:

  • Was the communication created, produced or distributed at the request or suggestion of the candidate, party or their agents?
  • Was the candidate, party committee or their agents materially involved in decisions related to the ad’s content, intended audience, mode of communications, etc.?
  • Were there substantial discussions between the Super PAC and the candidate, party or their agents?
  • Does the Super PAC share a common vendor with the candidate, party or their agents?
  • Does the Super PAC employ an employee or independent contractor who worked for the candidate or party committee during the previous 120 days?

Because proving an ad was not coordinated, isn’t always as easy as 1-2-3, it is not too late for Super PACs involved in the 2016 presidential election to develop policies, procedures and protocols to help protect against potential allegations of coordination.

Corporations and the 2016 Federal Election: Do You Know What Your Employees Are Doing?

As the 2016 presidential primary season proceeds, we are quickly approaching the summer conventions and the November presidential election. With the political contests becoming more heated, this post is part of a new series on what different entities and groups need to know about their political activity as the 2016 election approaches.

One of the key principles of federal campaign-finance law is that corporations are prohibited from making political contributions to federal candidates, political action committees, and party committees. This means not only that corporations are prohibited from writing checks to federal candidates, political action committees, or parties, but that a corporation should not use its resources—or allow its resources to be used—for any federal election purpose (though some exceptions exist for a corporation’s federal connected PAC). This prohibition on the corporation’s activity must be balanced, though, with the individual political activity of a corporation’s employees. Although a corporation may not make federal political contributions, a corporation’s employees have a First Amendment right to engage in the political process.  To maintain this balance, corporations should keep the following guidelines in mind:

Employees MAY:

  • Make individual political contributions with personal funds.
  • Volunteer or work for a political campaign on their own time.
  • Run for political office.

Employees may NOT:

  • Be reimbursed for any political contributions they make.
  • Use any corporate resources (including letterhead, printers, conference rooms, and mailing lists) for federal-election purposes.
  • Provide even individual volunteer services for a federal campaign during normal business hours—the corporation’s time is itself a resource of the corporation.
  • Take even unpaid leave to work or volunteer for a federal campaign if the leave is granted in a way that demonstrates a preference for one candidate or political party.
  • If an employee runs for political office, the corporation may not endorse the candidate or indicate support through such avenues as a newsletter or website.

Because the scope of what is prohibited is so broad, it is important for corporations to adopt and enforce political-activity policies to ensure that employees are not unknowingly making prohibited political contributions by performing work for a political campaign during paid business hours or by using corporate resources for political purposes. Similarly, corporations should have a plan in place to govern how and when employees are entitled to take unpaid leave to work or volunteer for a federal campaign.

Corporations may be faced with navigating these and other challenges in this heated political season. It is therefore important for corporations to begin thinking about how to navigate between the federal prohibition on corporate political contributions and the First Amendment right of a corporation’s employees to engage in the political process.

Explaining Jon Stewart’s Monologue on Campaign Finance

After more than 16 years at the helm of The Daily Show, Jon Stewart hosted his final episode last night. The hour-long show devoted most of its running time to Stewart saying farewell to the correspondents and staffers who have played a part in the show’s history. But Stewart found time to deliver a short monologue on how truth is often obscured in business, policy, and politics. (Because this is a family-friendly Corporate Political Activity Law Blog, we won’t mention the term Stewart repeated throughout the monologue.) One strategy, Stewart explains, is hiding the truth through complexity:

Hey, a handful of billionaires can’t buy our elections, right? Of course not. They can only pour unlimited, anonymous cash into a 501(c)(4) if 50% is devoted to issue education, otherwise they’d have to 501(c)(6) it, or funnel it openly through a non-campaign coordinated Super PAC.

Here’s a quick overview of the campaign-finance concepts that Stewart referenced, which also doubles as a handy primer on the different ways money is raised and spent on political activity.

  • For federal elections, the making of political contributions to a candidate or a political party is subject to both contribution limits and disclosure requirements. The FEC has jurisdiction over these issues.
  • Tax-exempt organizations are not subject to the FEC’s jurisdiction. Instead, the IRS ensures that 501(c) organizations do not engage in prohibited political activity. A 501(c)(3) organization, for example, may not engage in any political activity but may engage in limited lobbying expenditures. In contrast, a 501(c)(4) or a 501(c)(6) may carry on partisan political activity so long as political activity is a secondary—and not the primary—activity of the organization. The IRS has expressed an apparent tolerance of political activity by 501(c)(4)s and 501(c)(6)s, so long as the political activity is less than 50% of the organization’s total activity. A 501(c)(4) or a 501(c)(6) may also engage in unlimited lobbying expenditures. There are no limits on the money that may be donated to 501(c) organizations and the donations are not subject to disclosure.
  • As we’ve discussed here on the blog, a Super PAC is a political organization that may only make independent expenditures, which means that they are not coordinated with candidates. A Super PAC may raise unlimited funds but it is required to disclose its contributors.

Stewart is right. The world of campaign finance can be complicated. Although he will no longer be around to explain the complexities of campaign-finance law, we will!

What is a Super PAC?

The Wall Street Journal’s Washington Wire has reported that in the first half of 2015, presidential Super PACs have raised a total of $211,457,755. This money is in addition to money raised directly by presidential candidate committees and does not include money raised by 501(c)(4) entities that might be involved in the political process.

Since Citizens United was decided in 2010, Super PACs have been a hot topic. Despite all of the press and discussion, it seems that confusion still surrounds Super PACs. So, we decided to go back to the basics:

  • A Super PAC is an independent-expenditure-only committee, which means that it can only spend its money on expenditures that are not coordinated with candidates.
  • A Super PAC may not make contributions to candidate committees.
  • A Super PAC may raise unlimited funds.
  • A Super PAC is required to disclose its donors.
  • A Super PAC may be registered with the IRS, the FEC or a state election commission (depending on the nature of the Super PAC’s focus and activities).
  • A Super PAC may be required to file reports with more than one government entity (depending on the nature and timing of its activities).

 

Political Law Roundup – July 13, 2015

This is the first post in a new series on the blog, providing a quick recap of recent political-law news and developments.

  • What role will non-profits have on the 2016 presidential election? According to a report in the New York Times, 501(c)(4) political activity is expected to be an important factor in the upcoming race.
  • In Wagner v. FEC, the DC Circuit Court upheld the prohibition on political contributions by federal contractors. You can see our full analysis of this important case here.
  • Challenges in defining coordination and enforcing restrictions means that Super PACs will continue to play an important role in federal elections, including the 2016 presidential race.
  • The New York City Campaign Finance Board is holding a hearing on Monday, July 13, 2015 to solicit comments on proposed amendments to Board rules on public-funds eligibility and disclosure-statement documentation. More information is available here.
  • The Brennan Center for Justice, the New York City Campaign Finance Board, and the Committee for Economic Development will be hosting a conference titled American Elections at the Crossroads, on Wednesday, July 22. Ann Ravel, chair of the FEC, will deliver remarks.

DC Circuit Upholds Federal Contractor Pay-to-Play Ban

Today, the DC Circuit issued its decision in Wagner v. FEC and upheld the 75 year-old pay-to-play prohibition applicable to federal contractors.

The Federal Election Campaign Act prohibits federal contractors from making contributions to party committees and candidates for federal office.  As we previously described here, three federal contractors had challenged the provision.

In addressing the correct scrutiny to apply, the court found that the “closely drawn” standard remained the appropriate standard for review of a ban on campaign contributions, notwithstanding Citizens United as that case involved independent expenditures rather than contributions.  Because this was a restriction on government contractors, the court noted that Congress had greater latitude to restrict the expression of both employees and government contractors than it did with the general public.

As such, the government’s stated interests in: 1) protecting against quid pro quo corruption and; 2) protecting merit-based administration of government contracts were compelling.  Delving into the 75 year-old history of the provision, the court found that “more recent evidence confirms that human nature has not changed since corrupt quid pro quos and other attacks on merit-based administration first spurred the development of the present legislative scheme,” citing to corruption scandals in Congress as well as the passage of pay-to-play laws in at least seventeen states, including New Jersey, Illinois, Connecticut and New York City, due to corruption scandals.

The court also found that the ban as applicable to political parties was narrowly tailored because there “is no meaningful separation between the national party committees and the public officials who control them.”

The court made specific reference to independent expenditure-only committees, finding that the challenge at issue did not involve the “law as the [FEC] might seek to apply it to donations to PACs that themselves make only independent expenditures, commonly knowns as ‘Super PACs.’”  Instead, the only issue before the court was the application of the ban by an individual contractor to a federal candidate or political party.

As acknowledged in today’s decisions:

  • Corporate federal contractors remain able to form political actions committees (i.e. separate segregated funds)
  • Officers, employees and shareholders of such contractors remain free to make contributions from personal assets.

FEC Roundup

The Federal Election Commission (FEC) had a busy fall season, beginning with the announcement of two new appointments, and culminating in the consideration of several important matters. The following summary represents a few highlights:

New FEC Membership Announced

Lee E. Goodman and Ann M. Ravel assumed roles as Commissioners of the Federal Election Commission. President Obama nominated Commissioners Ravel and Goodman on June 21, 2013, and the United States Senate confirmed their nominations on September 23, 2013. Commissioner Goodman was also elected as Vice Chairman of the FEC.

No Opinion Issued on Whether Bitcoins are Considered a New Form of Political Campaign Currency

Following a request by the Conservative Action Fund (CAF) to issue guidance on the permissibility of using Bitcoins for political campaign contributions and expenditures, the FEC considered four separate draft Advisory Opinions but was unable to garner the requisite four affirmative votes to issue a final opinion.

Bitcoins are a form of virtual, peer-to-peer currency that can be exchanged online for goods and services anywhere in the world without using a bank or third party financial institution to host the transaction. Once a merchant or individual has received a transfer, the value is calculated by a constantly fluctuating currency conversion rate. Bitcoins differ from traditional online payments because they are regulated by software and user agreements and cannot be regulated by governments, banks or any other central authority. Instead, the transactions are managed collectively by the community of Bitcoin users.

While the Commissioners were unable to agree on official guidance, the Commission did discuss the possibility of developing an interim policy and commencing a rulemaking to address the issues raised in the Advisory Opinion request.

Draft Interpretive Rule on NY Primary Elections Announced

The Commission introduced a draft Interpretive Rule that clarifies the Commission’s interpretation of its rule for determining the date of a special primary election as the rules apply to nominations for federal office conducted under New York Election Law. Consistent with state law, which vests the power in party committees, the Commission clarified that the date of a special primary election is the date of the party committee’s nomination vote. The Commission directed the Office of General Counsel to make the draft available for solicitation of public comments before a vote by the Commission.

FEC Fails to Rule on Tea Party Request

The Commission considered two drafts responding to an Advisory Opinion request from the Tea Party Leadership Fund (TPLF), but it was unable to reach agreement by four affirmative votes in order to issue a formal Advisory Opinion. In its request, TPLF sought an exemption from the regulations requiring reporting to the Commission of contributors to the TPLF and of recipients of TPLF disbursements.

Important Reminder Regarding Holiday Greetings

The same disclaimer rules that apply to campaign-related mailings also apply to all holiday greeting cards, even if the communication does not solicit funds or contain express advocacy. If a federal campaign sends out more than 500 holiday greetings, (which constitutes a mass mailing) it must include a box on the card to inform recipients that it was paid for by the campaign committee. A PAC or party committee that sends a holiday mass mailing must also include a box on the card that lets recipients know the committee paid for it, identifies the committee’s full name and street address, phone number or web address, and states that the communication is not authorized by any candidate or candidate’s committee. For additional information, see the Commission’s brochure: Special Notices on Political Ads and Solicitations.

 

McCutcheon v. FEC: the Potential Impact on Aggregate Contribution Limits Under Local Pay-to-Play Ordinances

Last week the United States Supreme Court heard arguments in McCutcheon v. FEC, a challenge to the constitutionality of aggregate contribution limits under federal campaign finance law.

In addition to imposing base contribution limits, federal campaign finance law imposes an aggregate individual biennial limit of $123,200.  Out of this $123,200, an individual may not contribute more than $48,600 to candidate committees or more than $74,600 to any other federal committees (out of this $74,600, no more than $48,600 may be given to committees that are not national party committees).

Last week’s oral argument centered around whether aggregate contribution limits are justified by the need to prevent undue influence in the political process or are contrary to First Amendment rulings constraining the government’s ability to impose restrictions aimed at equalizing participation in federal elections.

If the Supreme Court holds that aggregate contribution limits are unconstitutional, the ruling will likely also be felt at the state level.  Currently, eight (8) states, including New York, impose analogous aggregate contribution limits on a single contributor’s contributions to multiple recipients during a specified time period.  What is less clear is how the McCutcheon ruling might impact aggregate contribution limits under local pay-to-play ordinances in New Jersey.

Many New Jersey local pay-to-play ordinances place an aggregate limit on the amount that a “business entity” may contribute to a group of covered political recipients during a specified time period.  (The definition of business entity may encompass one or more contributors, depending on the complexity of the entity and specified relationships.)  Putting aside issues associated with subjecting multiple contributors to the same aggregate limit, the question posed by a potential McCutcheon holding is whether there is a significant constitutional distinction between an across-the-board aggregate limit and an aggregate limit imposed solely as a condition of eligibility for a government contract.

Given that these local aggregate contribution limits are designed solely to prevent corruption, or the appearance thereof, in the government procurement process, these aggregate limits may withstand constitutional scrutiny regardless of the outcome in McCutcheon.  In other words, the local pay-to-play aggregate limits may be constitutionally distinct because businesses and individuals have a choice between engaging in business with the government (thereby voluntarily subjecting themselves to additional limitations meant to ensure the integrity of those business dealings) or fully participating in local elections by making bigger contributions to more recipients up to higher contribution limits.

A different federal case, Wagner v. FEC, which challenges the federal ban on contributions by government contractors may, in the end, prove more relevant to the continuing viability of the local aggregate limits and other features of pay-to-play laws.