Yesterday, the Ninth Circuit Court of Appeals issued a 41 page opinion explaining its continuing stay of a lower court’s decision ruling certain statutory contribution limits in Montana were unconstitutional and unenforceable.

On October 3, the U.S. District Court for the District of Montana, issuing a decision in Lair v. Murry, found the contribution limits in Montana Code Annotated §13-37-216 “prevent candidates from ‘amassing the resources necessary for effective campaign advocacy.’”

On October 9, after the District Court had denied a request to stay its Order, the Court of Appeals reinstated Montana’s campaign contribution limits, overruling the District Court. The District Court was ordered to outline the reasoning for its decision.

The next day, on October 10, the District Court issued a 38 page Opinion and Order detailing its reasoning. The Court of Appeals has rejected the District Court’s arguments, concluding “the state is likely to succeed on appeal.”

James. W. Murry, the Commissioner of Political Practices, has stated “that contribution limits are in effect and will be enforced.”

Tomorrow at a public hearing at its offices at 11:00am, the New Jersey Election Law Enforcement Commission (ELEC) will consider proposed changes to the administrative code allowing for electronic filing for lobbyists’ annual reports.

Electronic filing would be mandatory through ELEC’s website and would replace the requirement to file paper copies. Copies of what a lobbyist files electronically must be retained by the lobbyist. The proposed amendments cover governmental affairs agents, represented entities, and representatives of “persons communicating with the general public.” The proposals also make technical changes, such as substituting “represented entity” for “lobbyist” throughout the relevant sections.

Other issues to be addressed at the meeting include proposed amendments concerning campaign cost index adjustments and personal financial disclosure statements by candidates.

Yesterday, the Ninth Circuit Court of Appeals reinstated Montana’s campaign contribution limits under Montana Code Annotated §13-37-216, overruling the District Court. The District Court is ordered to outline the reasoning for its decision, according to AP reports.

On October 3, 2012, the U.S. District Court for the District of Montana, issuing a decision in Lair v. Murry, found the contribution limits in Montana Code Annotated §13-37-216 “prevent candidates from ‘amassing the resources necessary for effective campaign advocacy.’”

Yesterday, the District Court had denied a request to stay its Order, according to the Independent Record. The Attorney General and the Commissioner had appealed the October 3 Order to the Ninth Circuit Court of Appeals.

Even though the District Court has ruled some of Montana’s political contribution limits unconstitutional, the Commissioner of Political Practices wants candidates and political donors to stick to the statutory restrictions.

On October 5, Commissioner James W. Murry issued a statement “strongly recommend[ing] that candidates, political committees, and contributors abide by the contribution limitations that are provided in the statute.”

In his statement, the Commissioner said, “This office will continue to review Judge Lovell’s October 3rd Order as well as any additional orders issued by the courts to determine the current status of the laws relating to campaign contributions.”

UPDATE: Today, the Commissioner has issued an additional statement regarding the Court of Appeal’s decision: “The result of the Ninth Circuit order is that contribution limits are in effect and will be enforced.”

An ordinance passed last week to alter Bergen County, New Jersey’s pay-to-play law was vetoed by County Executive Kathleen A. Donovan on Friday.

The Board of Chosen Freeholders had voted to remove much of the current ordinance’s disclosure requirements, requiring reporting only of contributions made to candidates for county offices. The existing pay-to-play ordinance, just passed in December of 2011, requires contractors report their contributions to candidates on the municipal, county, state, and federal level.

The Federal Election Commission (FEC) will not be creating any new regulations to address contribution disclosure requirements connected to electioneering communications, at least on its own accord.

Yesterday, the Commission was unable to achieve the requisite four votes needed to initiate rulingmaking in response to a federal court order. In Center for Individual Freedom v. Van Hollen, the U.S. Court of Appeals for the District of Columbia Circuit ordered the FEC, under the jurisdiction of the District Court, to decide whether the Commission would pursue rulemaking addressing the issues raised concerning 11 C.F.R. §104.20(c)(9) or defend its current regulation in court.

Currently, 11 C.F.R. §104.20(c)(9) requires disclosure only of those making contributions over $1,000 to an entity explicitly for the purpose of furthering electioneering communications. The lawsuit argues the current rule contradicts the statute requiring disclosure of all donors making contributions over $1,000.

The FEC counsel has filed a status report advising the District Court that the Commission “does not intend to pursue a rulemaking and that it will continue to defend 11 C.F.R. § 104.20(c)(9) before the Court.”

Separate statements have been issued by Commissioners Ellen L. Weintraub, Cynthia L. Bauerly, and Steven T. Walther .

A Federal Court has ruled Montana’s contribution limits are unconstitutional under the First Amendment.

On October 3, 2012, the U.S. District Court for the District of Montana, issuing a decision in Lair v. Murry, found the contribution limits in Montana Code Annotated §13-37-216 “prevent candidates from ‘amassing the resources necessary for effective campaign advocacy.’”

The Court has enjoined the state from enforcing the provisions of the code relating to limiting political contributions.

Montana Attorney General Steve Bullock issued the following statement: “In declaring our campaign contribution limits unconstitutional, a federal judge has effectively put Montana’s elections up for auction to the highest bidder. My office will aggressively pursue all legal remedies available to overturn this decision, including filing an emergency stay before the U.S. 9th Circuit of Appeals —the court which upheld Montana’s contribution limits just a decade ago.”

Nevada Secretary of State Ross Miller has proposed a bill draft resolution for the 2013 legislature to increase the accountability of candidates and public officials.

Secretary Miller advocates changes to the current campaign finance laws to clarify who is required to disclose contributions and expenditures when making independent expenditures or electioneering communications. Other changes put forth include requiring reporting within 72 hours for contributions received in excess of $1000, allowing the Secretary of State’s office to seek greater authority and greater penalties for campaign finance violations, and requiring every expense made from a candidate’s campaign account to be report.

Additionally, the Secretary is proposing an overhaul of the law regarding gifts given to public officials in order to “significantly restrict the ability of candidates and public officials to receive ‘gifts’ from donors who may pose a conflict of interest”, according to a press release from the Secretary’s office.

Assemblymen Marcus Conklin and Pat Hickey, and senate candidate Sheila Leslie, have expressed interest in the ideas. The Nevada Legislature is scheduled to begin its next session on February 4, 2013.

President Obama has signed an Executive Order “to ensure that taxpayer dollars do not contribute to trafficking in persons.”

The Executive Order, “Strengthening Protections Against Trafficking In Persons In Federal Contracts,” signed yesterday, orders the Federal Acquisition Regulatory (FAR) Council to amend its regulations and implement specific requirements of federal contractors.

For example:

• Vendors will be required to agree to cooperate fully in providing reasonable access to allow audits, investigations, or other actions to ensure compliance;
• Contractors will be prohibited from charging employees recruitment fees;
• Contractors will be prohibited from destroying, concealing, and confiscating an employee’s identity documents, such as passports or drivers’ licenses; and
• Contracting officers will have a duty to notify the government if they become aware of any activities concerning the use of forced labor, trafficking in persons, and other specified illegal activities.

While the order is effective immediately, it will apply to solicitations issued after the FAR Council makes its rules. FAR has six months to realize the regulations.

Today the FEC posted an article answering some questions about political contributions made and received by text messaging.

The article can be found here.

A bill introduced by U.S. Representative Bill Posey hopes to curtail members of congress from becoming lobbyists.

The “End the Congressional Revolving Door Act,” H.R. §6424, would prohibit a former member of congress or former congressional employee, while employed as a lobbyist, from being eligible for certain federal benefits.

Those benefits are:

• The Civil Service Retirement System;

• The Federal Employees’ Retirement System;

• The Federal Employees’ Health Benefits Program; and

• The Federal Employees’ Group Life Insurance Program.

The prohibition covers each month the individual is a compensated lobbyist.

In May, a similar bill was introduced by U.S. Representative Steve Israel. The “Congressional Double Dipping Pension Prevention Act,”  H.R. §5737, would prohibit a former member of congress receiving annual compensation exceeding $1,000,000 as a lobbyist from being eligible to concurrently receive federal retirement benefits for the period of time he or she is employed as a lobbyist and receiving such income.

A federal appellate court has reversed a district court’s electioneering reporting decision, sending the issue back to the FEC.

The significance of today’s decision, pending further possible rule changes or court decisions, is that political contributors giving to an organization making an electioneering communication will not have to be disclosed to the FEC unless the donor specifically earmarks his or her contributions to fund electioneering communications.

This was the rule from 2007 until this spring when a district court ruled that all contributors giving over $1,000, regardless of whether they gave for the specific purpose of electioneering communications, had to be disclosed to the FEC.

In the initial lawsuit, Van Hollen v. FEC, the plaintiff,  U.S. Representative Van Hollen, claimed the FEC regulation 11 C.F.R. §104.20(c)(9), which requires disclosure only of those making contributions over $1,000 to an entity for the purpose of furthering electioneering communications, contradicts the statute requiring disclosure of all donors making contributions over $1,000.

In the spring, a U.S. district court agreed and declared 11 C.F.R. §104.20(c)(9) invalid and vacated the regulation. The court reinstated the FEC’s prior regulation, which was promulgated on December 17, 2002 and was in effect until December 25, 2007. The FEC had formally reiterated the district court’s requirement on July 27, 2012, retroactively applying the disclosure of donors to March 30, 2012.

Today, in Center for Individual Freedom v. Van Hollen, the U.S. Court of Appeals for the District of Columbia Circuit reversed Van Hollen v. FEC, vacated the district court’s prior judgment, and remanded the case to the district court. Presently, under the jurisdiction of the district court, the FEC must pursue rulemaking to address the issues brought by the lawsuit or defend 11 C.F.R. §104.20(c)(9) in court against the parties bringing the action.

This is a signature issue for Representative Van Hollen who will probably continue to vigorously litigate this issue.

The FEC has not publicly declared its next course of action.

The Bergen County, New Jersey Board of Chosen Freeholders will consider revising its pay-to-play ordinances on Wednesday, September 19.

Bergen County has only had its local pay-to-play ordinance since December. According to NorthJersey.com, proposed changes “would strip the requirement that contractors report their contributions to candidates on the municipal, state, and federal level, leaving only county campaigns on the mandatory reporting form.”

While the proposal was introduced on September 12 and is scheduled for an October 3 consideration, the Freeholder’s agenda lists the ordinance introduction for Wednesday.

The New Jersey Election Law Enforcement Commission (ELEC) has proposed changes to the administrative code allowing for electronic filing for lobbyists’ annual reports.

Electronic filing would be mandatory through ELEC’s website and would replace the requirement to file paper copies. Copies of what a lobbyist files electronically must be retained by the lobbyist.

The proposed amendments cover governmental affairs agents, represented entities, and representatives of “persons communicating with the general public.” The proposals also make technical changes, such as substituting “represented entity” for “lobbyist” throughout the relevant sections. A copy of the proposal can be found here.

ELEC will conduct a public hearing at its offices concerning this proposal on Tuesday, October 16 at 11:00 a.m.

An alert for municipal securities dealers concerning pay-to-play rules has been issued by a department of the Securities and Exchange Commission (SEC).

The SEC Office of Compliance Inspections and Examinations has released a National Examination Risk Alert summarizing observations and providing some guidance of pay-to-play compliance by firms engaged in municipal securities.

The alert identifies issues found “in the course of examinations regarding compliance by firms” subject to municipal securities pay-to-play prohibitions. Municipal Securities Rulemaking Board (MSRB) Rule G-37 prohibits certain political contributions for two years prior to engaging in a municipal securities business where a related official received contributions.

The alert details problems with recordkeeping, inaccurate filing of reports, and inadequate supervision by firms to ensure compliance with MSRB Rule G-37.

Additionally, the alert’s reporting staff “has observed facts that suggest that some firms may have engaged in municipal securities business with issuers within two years of their MFPs making [prohibited] contributions.”

The full report can be found at http://www.sec.gov/about/offices/ocie/riskalert-munipaytoplay.pdf.