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November 1, 2012 • Written by Jennifer Zona, Esq.

501(c)(4) Group Ordered to Disclose Contributors

Contributions funded ballot measure ads

November 1, 2012 • Written by Allyson Smith

Eye on the Races – November 1, 2012

Electoral Math: A Brief Primer on the Electoral College

2012 Electoral map With election day less than a week away, the electoral college is still perhaps the most influential and simultaneously least understood aspect of American Presidential elections. After tens of millions of votes are cast, only 270 are required to be elected President of the United States. Established under Article II, Section 1 of the U.S. Constitution, the electoral college was later amended by both the twelfth and twentieth amendments to arrive at its current form. The idea is that states vote for the President and Vice President, and the people vote for the legislature. This method was essentially a compromise between those who wanted Congress to elect the President versus those who prefered a nationwide popular vote.

Each state is allotted a number of electors equal to the size of its congressional delegation. For example, Ohio’s 18 electoral votes equal it’s 16 members of the House of Representatives and two Senators. With a total of 538 electors (Washington D.C. is allotted three votes despite having no voting members in Congress) a majority of 270 is required to win election. Though the process varies, electors are generally selected by the political parties at statewide conventions or by each parties central committee’s. On election day, voters choose the electors by casting votes for one of the Presidential candidates on the ballot. With the exception of Maine and Nebraska, all of a state’s electors are awarded to the candidate who receives the most total votes. Maine and Nebraska award electors proportionally allowing these states to award votes to more than one candidate.

The electors meet to cast votes on the first Monday following the second Wednesday in December in their respective states, and send the certified results to Congress. Congress then counts the official tally in a joint session on January 6 following the year of the electors meeting. While there is no Constitutional provision or federal law that requires an elector to cast a ballot based on the popular vote of their respective states, most state and party laws require electors to adhere to popular vote pledges. Additionally, the Supreme Court has traditionally held that electors must vote consistent with the results in their states. In practice, electors generally do not go against the will of the electorate. According the National Archives, the official record keeper of Presidential elections, less than 1 percent of electoral voters have not voted in accordance with the popular vote historically.

Essentially what all of this means is that each candidate is focused on a small number of states that are likely to go either way instead of running nationwide campaigns trying to win the popular vote. Based on a number of recent maps drawn from incessant polling and statistical models, there are between 7 and 9 states still rated as toss-ups in the election (FL, CO, IA, NC, NH, NV, OH, VA, WI). Without the electoral votes offered by these states, President Obama currently has between 237 and 243 electoral votes (NV leans D in some projections) to Governor Mitt Romney’s 191 to 206 votes (NC leans R in some projections).

If there is any confusion as to which states each candidate deems vital to winning the election, look no further than each campaigns schedule over the next few days. Both President Obama and Governor Romney will present their closing arguments in each of the aforementioned swing states hoping to turn that last undecided voter before election day. And if you’re still curious, keep in mind that no republican has EVER won the Presidency without winning Ohio, so expect to see a lot of the Romney campaign in the buckeye state.

To learn more about the electoral college visit the National Archives and to build your own electoral map and lay the path to 270 for each candidate, visit 270towin.com.

November 1, 2012 • Written by Joe May

Thursday News Roundup

Lobbying, Campaign Finance, Ethics

November 1, 2012 • Written by Allyson Smith

Ask the Experts – In-Kind Contribution, or Lobbying Expenditure?

Here is your chance to “Ask the Experts” at State and Federal Communications, Inc.

Q. I am a registered lobbyist who was asked to make an in-kind contribution on behalf of my company for an event to be held by a state political party. Is this permissible?

A. As a registered lobbyist, your contributions may be governed by two sets of laws: campaign finance and lobbying.

First, you must determine whether the state would consider the in-kind payment to be a contribution or a lobbying expenditure.

If the in-kind payment is determined by the state’s governing body to be a contribution, then this contribution must be compliant with the campaign finance laws. You must first determine if the amount and source of funding are permissible. Assuming permissibility of the contribution, potential restrictions on contributions facilitated by lobbyists and the reportability of contributions facilitated by lobbyists will need to be reviewed. In some states, once the in-kind contribution is made, the lobbyist and the lobbyist’s principal may not have additional involvement with the planning of the event, but will be permitted to attend.

Where the state considers the in-kind payment to be a lobbying expenditure and not a political contribution, you must ensure that the expenditure will not exceed the state’s gift limit. The pro-rata share of the expenditure attributable to all public officials who attend the event may be reportable on a disclosure report.

While this analysis will vary from state to state, it is important to be cautious when making in-kind payments.

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: marketing@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.