The Fort Wayne City Council approved a pay-to-play ordinance on November 28. The ordinance will prohibit contractors who have donated more than $2,000 a year to an elected official’s campaign from bidding on city projects.

The restriction includes natural or legal persons with a 7.5 percent or more interest in the bidding entity and  extends to a bidder’s spouse and any children living in the same household.

Mayor Tom Henry has 10 days to sign or veto the legislation.

If approved, the ordinance will become effective on January 1, 2018.

On December 6, capital acquisition brokers (CAB) will become covered by the same pay-to-play rules the Financial Industry Regulatory Authority (FINRA) imposes upon broker-dealers, placement agents, and covered associates.

Earlier this year, on August 20, FINRA implemented Rule 2030, a new pay-to-play rule for broker-dealers, placement agents, and covered associates acting on behalf of certain regulated investment advisors or soliciting a government entity to invest in certain pooled investment vehicles. FINRA Rule 4580, which took effect the same day, mandates certain record-keeping requirements concerning any related contributions.

Starting in December, a firm meeting the statutory definition of a CAB and electing to be governed by the FINRA rule set would be subject to FINRA’s new pay-to-play rules. Specifically, FINRA’s CAB Rule 203 (Engaging in Distribution and Solicitation Activities with Government Entities) and CAB Rule 458 (Books and Records Requirements for Government Distribution and Solicitation Activities) require CABs be subject to FINRA’s pay-to-play Rules 2030 and 4580.

The new rules are meant to deter CABs from engaging in pay-to-play practices, according to FINRA Regulatory Notice 17-37.

Contributions by federal contractors to federal independent expenditure-only political action committees, also known as super PACs, may violate the federal pay-to-play prohibition.

On September 25, 2017, the Federal Election Commission (FEC) entered into a Conciliation Agreement with a federal contractor after finding the contractor had violated pay-to-play prohibitions by making contributions to a federal independent expenditure-only political action committee.

The FEC fined the contractor, Suffolk Construction Company, $34,000 for making two $100,000 contributions in 2015 to Priorities USA Action, a super PAC supporting then presidential candidate Hillary Clinton. Because the matter was resolved by agreement between the FEC and the contractor, there was no challenge made to the FEC’s fine.

National:

Campaign Regulation Foes Targeting State-Level Restrictions
Center for Public Integrity – Ashley Balcerzak | Published: 8/31/2017

Having won significant battles at the federal level over campaign finance laws, political groups and libertarian nonprofits are now targeting state-level rules in district and appellate courts across the country. The effects could be wide-ranging. The most notable battles deal with when groups need to disclose their donors, and whether contribution limits trample on donors’ freedoms of speech and expression.

The New Front in the Gerrymandering Wars: Democracy vs. math
New York Times – Emily Bazelon | Published: 8/29/2017

Wisconsin Republicans tried hard to keep their legislative mapmaking process a secret, but they were not successful. In the first of two lawsuits brought by Democratic voters, three federal judges berated GOP leaders in 2012 for ‘‘flailing wildly in a desperate attempt to hide’’ their methods to assure Republican control of the state Legislature. A court ordered Republicans to turn over three computers. In 2016, a computer expert hired by the plaintiffs found spreadsheets that used a powerful new gerrymandering tool, based on sophisticated computer modeling.

Federal:

How to Get Rich in Trump’s Washington
New York Times – Nicholas Confessore | Published: 8/30/2017

Interests that have spent millions of dollars lobbying in Washington, D.C. were surprised by Donald Trump’s victory last November. By the end of his first 100 days in office, it seemed, Trump had not so much “drained the swamp” as enshrouded it in a fog of uncertainty. No previous president had changed his mind more often, or contradicted his cabinet so frequently, or permitted such ideological combat in the White House. Big corporations and trade associations did not quite know what to expect. But mostly, they did not know whom to contact. All of this inadvertently created an entirely new business model for Trump’s friends and former employees.

Members of Congress Scoring Personal Loans from Political Supporters
Center for Public Integrity – Nicholas Jahr and Ellen McCreary Ionas | Published: 8/29/2017

A review of financial disclosure forms filed by current members of the U.S. House and Senate reveals at least 19 have accepted loans from organizations or wealthy individuals instead of a bank or traditional financial institution. Often, these organizations and individuals rank among the lawmakers’ key political supporters. In two of these cases, the loans were made to members’ spouses. The loans range in value from $15,000 to $5 million. There is nothing illegal about such loans, even when the lender is also a campaign donor. But watchdog groups say such arrangements raise concerns about possible conflicts-of-interest.

Washington Lobbying Firms Receive Subpoenas as Part of Russia Probe
Washington Post – Carol Leonnig and Tom Hamburger | Published: 8/25/2017

Special counsel Robert Mueller issued grand jury subpoenas asking public relations and lobbying firms to provide records regarding their interactions with the consulting firms led by Michael Flynn, a former national security adviser to President Trump, and Paul Manafort, former chairperson of the Trump presidential campaign. The requests suggest Mueller’s investigators are looking closely at Manafort and Flynn, both of whom face possible legal jeopardy for allegedly failing to disclose foreign governments or parties may have been the beneficiaries of their consulting and lobbying work, as they seek potential links between Trump’s campaign and Russia.

From the States and Municipalities:

California
3 of 4 Colonies Corruption Defendants Found Not Guilty on All Charges
San Bernardino Sun – Joe Nelson and Richard Deatley | Published: 8/28/2017

Developer Jeff Burum and two former San Bernardino County officials – former Supervisor Paul Biane, and Mark Kirk, former chief of staff for then-county Supervisor Gary Ovit – were found not guilty of bribery, conflict-of-interest, and improper influence in an alleged scheme to get county approval of a $102 million court settlement in favor of a developer. Prosecutors alleged Burum paid $400,000 in political contributions to the defendants and former Board of Supervisors Chairperson Bill Postmus, who later entered a plea bargain with prosecutors and testified at the trial. The money, investigators alleged, were actually bribes or payments for delivering the settlement.

Florida
FBI Arranged Outings for Gillum, Others During NYC Trip
Tallahassee Democrat – Jeff Burlew | Published: 8/25/2017

The FBI may have tried to entice Tallahassee Mayor Andrew Gillum through one of his close friends to see a Broadway show, catch a Major League Baseball game, and stay at a New York City hotel as part of its investigation into alleged public corruption in Tallahassee. Gillum, who had room reservations elsewhere, will not say if he stayed at or visited the Millennium Hotel in Manhattan, where an FBI agent posing as a developer had arranged rooms for him and others. He also will not say if he attended “Hamilton” or went to the New York Mets game. Public officials such as Gillum are required to report gifts valued over $100, though there are exceptions.

Georgia
White Lawmaker Warns Black Attorney She May ‘Go Missing’ If Confederate Statues Are Threatened
Washington Post – Cleve Wootson Jr. | Published: 8/30/2017

Georgia Rep. Jason Spencer said a former Democratic lawmaker might “go missing” if she continues to criticize Confederate statues. Spencer originally posted a photo with a memorial for Confederate President Jefferson Davis, saying the statue was Georgia’s history and used the hashtag #DealWithIt in a Facebook post. That prompted a response from former state Rep. LaDawn Jones, who told Spencer to “put your hoods and your tiki torches away. We are no longer afraid.” Spencer then said those who criticize the state’s Confederate history “will go missing in the Okefenokee” because people in South Georgia “will not put up with it like they do in Atlanta.”

Idaho
Lawmakers: Idaho ‘uniquely poised’ to stiffen campaign, lobbying disclosure requirements
Spokane Spoesman-Review – Betsy Russell | Published: 8/28/2017

Idaho lawmakers are mulling several key changes to the state’s campaign finance and lobbying laws. A bipartisan working group met for a second time to hear possible recommendations from the state’s top lobbyists and Secretary of State Lawerence Denney. The goal is to have the panel submit suggestions to before the 2018 legislative session begins in January. Some of the proposals would place new reporting requirements on PACs, and require lobbyists to report their expenditures year-round, rather than just during the legislative session.

Iowa
Special Interest Groups Spend Big at Iowa Capitol
Des Moines Register – Brianne Pfannenstiel | Published: 8/24/2017

A Des Moines Register analysis showed special interest groups in Iowa paid lobbyists about $20.4 million last year in an effort to sway policy on issues ranging from Medicaid to workers’ compensation to legalized fireworks. The data provide a broad look at who is vying for influence at the Capitol during a year in which Republicans took control of the House, Senate, and governor’s office for the first time in nearly 20 years. With the new power dynamic, many groups may choose to “lobby up,” either to capitalize on their new opportunity or to fight perceived threats, said lobbyist Jim Carney.

Kentucky
Ethics Group Wants to Know What Led Mnuchin to View Eclipse in Kentucky
Washington Post – Drew Harwell and Beth Reinhard | Published: 8/24/2017

Citizens for Responsibility and Ethics in Washington is seeking records detailing the cost of Treasury Secretary Steve Mnuchin’s recent trip to Kentucky in a government plane, saying it “seems to have been planned around the solar eclipse.” Mnuchin and his wife, Louise Linton, watched the eclipse from the lawn of Fort Knox in Kentucky, which was just outside the path of totality. It was Linton’s sharing of the expensive designer labels of her outfit as she stepped off the plane in Kentucky in an Instagram post and her subsequent rant against a commenter who criticized it that first raised eyebrows.

Massachusetts
In Massachusetts, Lobbyists Outnumber Lawmakers Seven-to-One
WWLP – Steve LeBlanc (Associated Press) | Published: 8/27/2017

There are now more than seven lobbyists for each of the 200 state lawmakers in Massachusetts. From 2006 to 2016, the number of active lobbyists jumped by about 1,000. A big part of the increase is due to a law that took effect in 2009 aimed at sharpening the definition of a lobbyist. Before the new law, an individual was not considered to be a lobbyist if he or she spent less than 50 hours lobbying, or received less than $5,000 in lobbying fees, during each six-month reporting period. The new law tightened that to 25 hours, or $2,500.

Michigan
Attorney: Michigan super PACs face ‘firestorm’ of fines
Detroit News – Jonathan Oosting | Published: 8/28/2017

Attorney Bob LaBrant asked Michigan Secretary of State Ruth Johnson’s office to clarify state rules governing super PAC contributions in the wake of a U.S. Supreme Court ruling in 2012 that opened the doors for unlimited but independent political spending as a form of free speech. Michigan has not updated its campaign finance laws to reflect the decision, and LaBrant argues a little-known state Bureau of Elections action in 2014 could lay the groundwork for a “firestorm” of complaints and fines that would cut across business, labor, conservative, and liberal donors.

Montana
Discounted Sale of US Interior Secretary’s Motor Home Raises Questions
ABC News – Bobcaina Calvin (Associated Press) | Published: 8/28/2017

U.S. Interior Secretary Ryan Zinke’s dormant congressional campaign committee recently sold a 2004 motor home at a steep discount to Montana Sen. Ed Buttrey. But a seemingly ordinary transaction between friends, when seen through the optics of stringent campaign finance laws, can raise a bevy of questions. After learning about the transaction, watchdogs are raising a $25,000 question: Why would Zinke’s campaign committee sell the Kountry Star Freightliner for half the price of its apparent $50,000 market value? The FEC prohibits political committees to sell assets, including campaign vehicles, below fair market value.

Washington
Is Olympia Lawyer the Democrats’ Champion in Complaint-Filing War?
Tacoma News Tribune – Melissa Santos | Published: 8/27/2017

A conservative activist has been taking aim at Democrats and liberal groups for the past year, filing at least 120 complaints saying they have broken Washington state’s campaign finance laws. Now, someone is turning the tables, saying conservative Glen Morgan and a group he leads have committed some of the same financial reporting violations. Walter Smith, an Olympia attorney, said he is concerned that the state’s campaign finance laws are being enforced unevenly due to the volume of complaints Morgan has filed against Democratic candidates in recent months.

State and Federal Communications produces a weekly summary of national news, offering more than 60 articles per week focused on ethics, lobbying, and campaign finance.

At its August 28, 2017, meeting, the San Francisco Ethics Commission discussed the adoption of the 2017 San Francisco Anti-Corruption and Accountability Ordinance to revise city campaign and government conduct laws.

The ordinance would create a series of new rules to reduce the incidence of pay-to-play politics by increasing the applicability of current pay-to-play laws to encompass more parties seeking contracts with the city. The ordinance would also create new limits and disclosure requirements on contributions and behested payments.

The commission voted 4-0 to continue the matter to its next meeting on September 25, 2017.

The Financial Industry Regulatory Authority (FINRA) has filed a proposed rule change with the Securities and Exchange Commission (SEC) to expand its brand-new pay-to-play rules to cover capital acquisition brokers (CAB).

FINRA Rule 2030, which took effect August 20, restricts contributions made to an official of a government entity being provided investment advisory services or being engaged to provide investment advisory services by certain parties. The rule applies to broker-dealers, placement agents, and covered associates acting on behalf of certain regulated investment advisors or soliciting a government entity to invest in certain pooled investment vehicles. FINRA Rule 4580, which took effect the same day, mandates certain record-keeping requirements concerning related contributions.

A firm meeting the statutory definition of a CAB and electing to be governed by the FINRA rule set would be subject to FINRA’s new pay-to-play rules under the proposal. Specifically, FINRA proposes the addition of rules providing all CABs be subject to FINRA Rules 2030 and 4580. If approved, the effective date will be no later than 30 days after FINRA’s announcement of the SEC’s approval.

The state Appellate Division recently upheld two state agency decisions related to contractor pay-to-play violations.

Della Pello Paving, Inc. lost two contracts totaling roughly $7 million and was barred from contracting with the state for the remainder of Gov. Chris Christie’s second term because it made a $500 contribution to Somerset County Republican Organization.

State pay-to-play laws prohibit a contractor from receiving a contract exceeding $17,500 if it contributed more than $300 during the previous 18 months to a county political party committee.

Della Pello Paving challenged the state agency decisions claiming the contribution was intended for Sheriff Frank Provenzano’s campaign and not for the county political committee. The inadvertent contribution needed to be returned within 30 days to avoid a pay-to-play violation. Della Pello did not request and receive reimbursement until more than a year after making the donation; moreover, Provenzano was not running for re-election the year the contribution was made.

Following the decision of the appellate court, Della Pello’s attorney sought emergency review by the state Supreme Court, but the court refused to hear the case.

Rep. Knute Buehler is set to introduce two bills to restrict pay-to-play politics.

House Joint Resolution 17 seeks to amend the Oregon Constitution to ban corporations, nonprofits and labor unions from making contributions to candidates or political action committees.

House Bill 2914 would require bidders on state contracts to disclose their five greatest campaign contributions in the state.

If passed, the measures would likely face legal challenges on the basis of free speech restrictions.

The Commonwealth’s new treasurer, Joseph Torsella, banned the use middlemen to assist in connecting investment houses with public agencies.

Torsella, in his first act after being sworn in, issued a policy directive banning the continued or future use of placement agent agreements for contractors entrusted with the investment of public funds.

These placement agents are typically paid a finder’s fee for obtaining business for the investment house. Placement agents are also used to circumvent a federal pay-to-play law prohibiting investment houses from giving campaign donations.

Last year, former treasurer Pat McCord was embroiled in a bribery scandal with one such placement agent. Richard Ireland, a wealthy Chester County resident, is accused of offering McCord $500,000 in campaign donations in exchange for using his clients for investing.

On Tuesday, January 10, the D.C. Council introduced several bills aimed at limiting big donors’ influence and increasing transparency in campaign fundraising. Citizens have accused Mayor Muriel E. Bowser, a Democrat, of participating in pay-to-play politics.

One of the bills introduced would block contractors from city business for two years following a political contribution to a candidate or political committee.

Bill 22-0038 would increase the number of lobbying reports by requiring monthly filings. Currently, reports are due twice a year.

The Election Finances Statute Law Amendment Act was passed by the Legislative Assembly on December 1, 2016. It was introduced after an investigation into pay-to-play fundraising and cash for access scandals.

The investigation revealed that corporations and lobbyists had spent up to $10,000 to buy time with cabinet members in seeking policy decisions and contracts. The new amendment will prohibit all provincial politicians, candidates, and senior political staffers from attending fundraising events and ban contributions from corporations and unions.

In addition to these prohibitions, donations from individuals are limited to $1,200 per political party annually, down from $9,975 under the current system. Third-parties, who currently face no spending restrictions on advertising, will be capped at $100,000 per election period and $600,000 in the six months before a general election is called. A spending cap will also be placed on political party advertising at $1 million in the six months before a general election is called.

The bill was passed despite negative feedback regarding loopholes in the legislation. It will go into effect on January 1, 2017.

Lobbying Commissioner Karen Shepherd says her office is investigating Liberal Party fundraisers to see if they violate the Lobbying Act.

Opposition members of Parliament argue the fundraisers are “pay to play” and violate Prime Minister Justin Trudeau’s ethic guidelines.

Conflict of Interest and Ethics Commissioner Mary Dawson stated the fundraisers do not violate the Conflict of Interest Act, but she believes the practice to be unsavory and is calling for changes to Canada’s laws to restrict the practice.

Most of us have an idea of what lobbying is, but as states expand the definitions of lobbying, more activities may now trigger registration and reporting requirements. And, as states tighten political contribution rules, more and more contractors may run into problems because of pay-to-play laws. But in order to comply with the rules, you need to know the rules.

State and Federal Communications is taking part in two events over the next few weeks looking specifically at these issues. This fall our Compliance Client Specialist Nola Werren, Esq., will present “Compliance: Pay-to-Play and Procurement Lobbying Process” at events with the Public Affairs Council and WASRG, the Washington Area State Relations Group.

As an expert in the field, Nola will share her knowledge and experiences during a Public Affairs Council webinar and at the annual WASRG Symposium. Topics she will cover include the procurement process; lobbying requirements in the states, including best practices to ensure compliance; and pay-to-play laws. It is this area of pay-to-play, the nexus between making a contribution and the award of a contract, that can have far-reaching consequences for a business.

The Public Affairs Council’s webinar will be held on October 27^th and is entitled “Compliance: State-Level Laws and Recent Trends.” The WASRG Annual Symposium begins at noon on November 2^nd at Carmine’s at 425 7^th Street NW in Washington, DC.

Make sure you keep checking in with State and Federal Communications, Inc. We are your #1 resource on government relations compliance.

On August 18,  District of Columbia Mayor Muriel Bowser returned an unsigned bill to reform the District’s procurement processes signaling that it can become effective without her signature. On August 24, the legislation was sent to Congress for the 30-day congressional review period needed for enactment. The bill will make procedural changes and establish the Office of the Ombudsman for Contracting and Procurement.

As introduced, the bill had a pay-to-play provision that banned campaign contributors from bidding on contracts over $100,000 for a year after making a donation to a District candidate. The pay-to-play provision was defeated in a council vote and is not part of the final bill.