LobbyComply Blog

On February 8, Rep. Bennie G. Thompson introduced a bill to establish a contractor review process with respect to disaster relief contracts valued at over $1 million.

The covered contracts are defined in the bill as contracts for goods and services awarded in response to a major disaster or emergency declared under the Robert T. Stafford Disaster Relief and Emergency Assistance Act and valued in an amount equal to or exceeding $1 million.

The reviews would be conducted by the administrator of the Federal Emergency Management Agency. After being introduced, the bill, House Resolution 4995, was referred to the House Committee on Transportation and Infrastructure.

On February 8, President Donald J. Trump announced his nomination of Emory A. Rounds III to be Director of the Office of Government Ethics (OGE). The position has been vacant since July 2017 when then Director Walter Shaub resigned after repeatedly questioning various possible conflicts of interests of President Trump and of members of the president’s White House staff.

Rounds is currently an associate counsel with the OGE and has been with the agency since 2009. Rounds was previously an ethics counsel on the White House Counsel’s staff for George W. Bush’s administration, served in the ethics office at the U.S. Department of Commerce, and served in the U.S. Navy Judge Advocate General’s Corps, according to the White House press release.

Rounds earned his J.D. at the University of Akron School of Law. The term of the appointment is five years.

On January 9, Sen. Rob Portman introduced a bill to monitor federal agencies’ procurement practices in order to ensure products manufactured in the U.S. are given priority.

Senate Bill 2284, the BuyAmerican.gov Act of 2018, creates an online portal called BuyAmerican.gov, which would monitor all federal contracts and grants for any waivers of statutory or regulatory requirements to buy from U.S. sourced suppliers. The website would be maintained by the U.S. General Services Administration and list each requested waiver.

The bipartisan bill is currently cosponsored by fellow Republican Sen. Lindsey Graham, and Sen. Sherrod Brown and Sen. Christopher Murphy, both of the Democratic Party. “Taxpayer dollars should support American-made products, and our federal agencies should lead the way in promoting U.S. jobs and products,” said Senator Brown, according to Portman’s press release.

On November 28, a court upheld the federal contribution limits set for primary and general elections. In Holmes v. Federal Election Commission, the U.S. Court of Appeals for the District of Columbia Circuit held the per-election structure of the Federal Election Campaign Act’s base contribution ceilings for individuals is constitutional.

Federal law allows individuals to contribute to a federal candidate in the amount of $2,600 per primary election and $2,600 per general election. The plaintiffs had argued individuals should be permitted to give $5,200 to candidates for a general election campaign by not making any contributions at all in a primary election and by carrying over the $2,600 they could have donated for that candidate’s primary election.

In its decision, the court wrote, “The question before us is whether Congress could choose a per-election format consistent with the First Amendment, not whether it had to do so. Congress’s choice in that regard was a constitutionally permissible one.”

On October 31, identical bills were introduced in both houses of the U.S. Congress to strengthen the laws and penalties concerning lobbyists serving as the agents of foreign principals.

Senate Bill 2039 and House Bill 4170 amend the Foreign Agents Registration Act of 1938 (FARA) in order to provide the U.S. Attorney General with greater authority to investigate alleged violations of FARA and bring increased criminal and civil actions against persons committing such violations.

If the legislation passes, an exemption from registering and filing disclosure reports under FARA established in Lobbying Disclosure Act of 1995 would be eliminated. Additionally, the Department of Justice would be empowered to demand documents and testimony when investigating alleged violations of compliance.

The pair of bills were introduced by Sen. Chuck Grassley and Rep. Mike Johnson.

On October 19, two bipartisan bills allowing increased monitoring of online political advertising were introduced in the U.S. Congress. Companion bills House Resolution 4077, The Honest Ads Act, and Senate Bill 1989 direct the Federal Election Commission to enact rules for online advertisements similar to currents rules for television and radio. Larger digital platforms would be required to make available to the public requests to run political advertisements costing more than $500.

The bills were introduced by U.S. Representatives Derek Kilmer and Mike Coffman and Senators Amy Klobuchar, Mark Warner, and John McCain in response to “revelations that a Russian company purchased upwards of 3,000 political advertisements on Facebook in an effort to influence the 2016 Presidential election,” according to a press release by Kilmer.

“Our bipartisan bill makes sure our laws are as up to date as the latest technology, and makes it harder for foreign actors to use the internet to attack our democracy,” Kilmer said in his press release.

Rep. Pat Tiberi of Ohio announced his intention to resign from the U.S. House of Representatives by January 31, 2018.

In a statement, Tiberi said he has been offered the opportunity to lead the Ohio Business Roundtable.

The Ohio Revised Code states that the governor “shall issue a writ of election directing that a special election be held to fill such vacancy” once the vacancy has become official.

Tiberi was first elected to Congress in November 2000.

On September 15, the head of the Office of Government Ethics (OGE) said in an interview with Politico anonymous contributions to legal defense funds of federal employees are prohibited. David Apol, the acting director of the OGE, told Politico the policy had not changed, even though the note on a guidance document had been changed earlier this year.

In 1993, the OGE issued an opinion letter holding a fund established for the benefit of a government employee to pay the employee’s legal expenses, while administered by a person having no connection with the employee’s official duties, could accept anonymous contributions. The OGE guidance letter is not legally binding.

Walter Shaub, then director of the OGE, instructed his staff in May of this year to add a one-sentence note to the top of the document signaling the OGE’s long standing internal practice had diverged from the formal guidance, according to Politico. The note read in all caps and a red font, “NOTE: SOME STATEMENTS IN THIS OPINION ARE NOT CONSISTENT WITH CURRENT OGE INTERPRETATION AND PRACTICE.”

Subsequently, after Shaub left the OGE, the document’s note was changed to read, again in all caps and a red font, “NOTE: THE PRIMARY FINDING ABOUT THE LIMITED APPLICABILITY OF 18 U.S.C. §209 TO PAYMENTS MADE FOR AN EMPLOYEE’S LEGAL EXPENSES HAS NOT CHANGED. HOWEVER, BECAUSE EACH ANALYSIS IS VERY FACT-SPECIFIC, AGENCY ETHICS OFFICIALS SHOULD CONSULT WITH THEIR OGE DESK OFFICER BEFORE ADVISING EMPLOYEES ON THIS TOPIC.”

Critics of the note change had said this opens the door up to lobbyists and other prohibited sources funding legal defenses for employees currently working in the White House.

A change of a note regarding an Office of Government Ethics (OGE) guidance document from 1993 may open the door to allowing anonymous contributions, including from prohibited sources such as lobbyists, to government employees’ legal defense funds. In 1993, the OGE issued an opinion letter holding a fund established for the benefit of a government employee to pay the employee’s legal expenses, while administered by a person having no connection with the employee’s official duties, could accept anonymous contributions. The OGE guidance letter is not legally binding.

Walter Shaub, then director of the OGE, instructed his staff in May of this year to add a one-sentence note to the top of the document signaling the OGE’s long standing internal practice had diverged from the formal guidance, according to Politico. The note read in all caps and a red font, “NOTE: SOME STATEMENTS IN THIS OPINION ARE NOT CONSISTENT WITH CURRENT OGE INTERPRETATION AND PRACTICE.”

Subsequently, after Shaub left the OGE, the document’s note was changed to read, again in all caps and a red font, “NOTE: THE PRIMARY FINDING ABOUT THE LIMITED APPLICABILITY OF 18 U.S.C. §209 TO PAYMENTS MADE FOR AN EMPLOYEE’S LEGAL EXPENSES HAS NOT CHANGED. HOWEVER, BECAUSE EACH ANALYSIS IS VERY FACT-SPECIFIC, AGENCY ETHICS OFFICIALS SHOULD CONSULT WITH THEIR OGE DESK OFFICER BEFORE ADVISING EMPLOYEES ON THIS TOPIC.”

Critics of the note change say this opens the door up to lobbyists and other prohibited sources funding legal defenses for employees currently working in the White House. Richard Lucas, once counsel for a Clinton legal defense fund, told Politico, “Not knowing the source is a recipe for disaster.”

On September 12, President Donald J. Trump nominated Trey Trainor to serve as a commissioner on the Federal Election Commission (FEC). Trainor is a lawyer licensed in Texas who specializes in election law, campaign finance, and ethics. Trainor previously served in the president’s administration as a Special Assistant to the Secretary of Defense, James Mattis, in the Department of Defense, Office of General Counsel.

Last week it was announced Commissioner Matthew Spencer Petersen would be stepping down after being nominated by the president to serve as a District Judge on the U.S. District Court for the District of Columbia.

With the appointment of Trainor, and with Petersen’s absence, there will be three registered members of the Republican Party, one registered member of the Democratic Party, and one Independent, Chairman Steven T. Walther. One seat still remains vacant. The FEC requires at least four commissioners to agree for any official action.

To become a commissioner, Trainor must now be confirmed by the U.S. Senate.

Several provisions added last week to the House Financial Services appropriations bill would alter some federal campaign laws.

The legislation would prevent some charitable 501(c)(3) organizations such as churches from losing their tax-exempt status for making contributions to candidates. The bill would also allow corporations greater latitude in soliciting employees to contribute to political action committees.

The riders to the bill also include provisions prohibiting the IRS from enacting rules governing political activity and prohibiting the SEC from implementing rules requiring corporations to report to its shareholders a corporation’s political campaign activities.

A further change to campaign finance law in the appropriation bill would bar the use of funds to recommend or require any entity submitting an offer for a federal contract to disclose specified political contributions as a condition of submitting the offer.

The appropriations and other finance bills are expected to be debated this and next week in the House.

On September 7, President Donald J. Trump nominated Matthew Spencer Petersen, a commissioner with the Federal Election Commission (FEC), to serve as a District Judge on the U.S. District Court for the District of Columbia. Petersen, a Republican, is one of the five remaining FEC commissioners.

Without Peterson, the FEC will have only four of the six required commissioners serving, all with expired terms. With Petersen’s absence from the FEC there will remain two registered members of the Republican Party, one registered member of the Democratic Party, and one Independent, Chairman Steven T. Walther.

The FEC requires at least four commissioners to agree for any official action. A replacement for Petersen will be selected by the president and then confirmed by the U.S. Senate. No more than three members of the FEC may be registered with the same political party.

On September 5, the Libertarian National Committee (LNC) filed a lawsuit arguing federal contribution limits of bequests are unconstitutional.

In Libertarian National Committee v. Federal Election Commission, filed in the U.S. District Court for the District of Columbia, the LNC argues federal political contribution limits applied to bequests, in the absence of any evidence of corruption, violate the First Amendment of the U.S. Constitution. The LNC also claims Congress cannot regulate “the content of a political party’s expression under the guise of combating corruption.”

In 2014, the LNC was bequeathed $235,575 by a party contributor when he died. The Federal Election Commission’s position is the money must be dispersed in the amount of $33,900 a year. The LNC is asking its proposed facts and questions be certified to the en banc D.C. Circuit.

On August 3, a federal campaign finance constitutional amendment with public financing authority was referred to the House Committee on the Judiciary’s Subcommittee on the Constitution and Civil Justice.

House Joint Resolution 113, introduced in the U.S. House of Representatives on July 20, 2017, proposes an amendment to the Constitution of the United States granting explicit authority to Congress and to the states to regulate contributions and expenditures in political campaigns and to enact public financing systems for such campaigns.

Rep. Adam Schiff introduced the legislation with the intent to increase regulation of campaign contributions and spending.

“The regulatory process is at a standstill as we watch billions of dark money pour into elections,” Schiff said in a press release.