January 13, 2020 •

US Supreme Court Denies Appeal: SEC Pay-to-Play Rule Remains

U.S. Supreme Court Building

United States Supreme Court Building

On January 13, the U.S. Supreme Court issued an order denying review of an appeal concerning the legality of a Securities and Exchange Commission (SEC) pay-to-play rule, allowing that rule to stand. Previously, on June 18, 2020, a federal appellate […]

On January 13, the U.S. Supreme Court issued an order denying review of an appeal concerning the legality of a Securities and Exchange Commission (SEC) pay-to-play rule, allowing that rule to stand.

Previously, on June 18, 2020, a federal appellate court had affirmed a lower court’s finding that the pay-to-play rule was legal.

In New York Republican State Committee v. SEC, the U.S. Court of Appeals for the District of Columbia Circuit found the SEC’s Financial Industry Regulatory Authority (FINRA) Rule 2030 constitutional.

The rule prohibits a placement agent from accepting compensation for soliciting government business from certain candidates and elected officials within two years of having contributed to such an official’s electoral campaign or to the transition or inaugural expenses of a successful candidate.

The New York Republican State Committee and the Tennessee Republican Party had argued the SEC did not have authority to enact the rule, the order adopting the rule was arbitrary and capricious because there was insufficient evidence it was needed, and the rule violated the First Amendment of the Constitution of the United States.

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July 18, 2019 •

San Francisco Pay-To-Play Ballot Measure

San Francisco, California - Noahnmf

Voters will have a chance in November to increase the restrictions on political contributions in the latest campaign finance proposal aimed at pay-to-play. The Sunlight on Dark Money ballot initiative requires greater disclosure of who is behind campaign advertisements paid […]

Voters will have a chance in November to increase the restrictions on political contributions in the latest campaign finance proposal aimed at pay-to-play.

The Sunlight on Dark Money ballot initiative requires greater disclosure of who is behind campaign advertisements paid for by PACs.

The measure requires the top three largest donors of the committee paying for the advertisement to disclose the name and amount contributed to the committee.

If any of the three belong to another committee, they must disclose the top two donors of that committee as well.

The measure would also prohibit top executives in development companies from contributing to candidates or current office holders of the Board of Supervisors, mayor, and city attorney.

The prohibition will be in effect while a project they have financial interest in is pending approval, or for 12 months after the city makes a final decision on the project.

The measure will also close a loophole allowing LLCs and LLPs to contribute to candidates despite an existing ban on those donations from corporations.

The measure would take effect 10 days after the election results are certified.

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June 20, 2019 •

SEC FINRA Pay-to-Play Rule Upheld by Federal Court

On June 18, a federal appellate court affirmed the legality of a Securities and Exchange Commission (SEC) pay-to-play rule. In New York Republican State Committee v. SEC, the U.S. Court of Appeals for the District of Columbia Circuit found the […]

On June 18, a federal appellate court affirmed the legality of a Securities and Exchange Commission (SEC) pay-to-play rule.

In New York Republican State Committee v. SEC, the U.S. Court of Appeals for the District of Columbia Circuit found the SEC’s Financial Industry Regulatory Authority (FINRA) Rule 2030 constitutional.

The rule prohibits a placement agent from accepting compensation for soliciting government business from certain candidates and elected officials within two years of having contributed to such an official’s electoral campaign or to the transition or inaugural expenses of a successful candidate.

The New York Republican State Committee and the Tennessee Republican Party had argued the SEC did not have authority to enact the rule, the order adopting the rule was arbitrary and capricious because there was insufficient evidence it was needed, and the rule violated the First Amendment of the Constitution of the United States.

While the court found the plaintiffs had standing, it ruled against all their arguments and upheld the rule.

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June 12, 2019 •

Judge Blocks Fort Wayne Pay-to-Play Rule Enforcement

Fort Wayne, Indiana City Hall

Allen Superior Court Judge Jennifer DeGroote blocked the city of Fort Wayne from enforcing a pay-to-play ordinance. The ordinance restricts how much money the owners of companies could give elected officials and still bid on city contracts. Under the ordinance […]

Allen Superior Court Judge Jennifer DeGroote blocked the city of Fort Wayne from enforcing a pay-to-play ordinance.

The ordinance restricts how much money the owners of companies could give elected officials and still bid on city contracts.

Under the ordinance companies are forbidden from bidding on a city contract if any owner, partner, or principal who owns more than 10% of the company gave more than $2,000 to the political campaign of a person with the responsibility of awarding contracts.

Judge DeGroote’s ruling stated the ordinance was superseded by state law, specifically the Home Rule Act.

The Home Rule Act grants municipalities the ability to self-govern in areas not covered by the state.

Under state law, elections are the domain of the Indiana Election Commission.

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May 24, 2019 •

Fort Wayne Pay to Play Ordinance Challenged in Court

Fort Wayne, Indiana City Hall

Allen Superior Court Judge Jennifer DeGroote heard arguments on Wednesday in a case focused on a 2018 Fort Wayne City Council ordinance. The ordinance limits financial contributions of contractors and their family members to political campaigns in Fort Wayne. The […]

Allen Superior Court Judge Jennifer DeGroote heard arguments on Wednesday in a case focused on a 2018 Fort Wayne City Council ordinance.

The ordinance limits financial contributions of contractors and their family members to political campaigns in Fort Wayne.

The measure prohibits business entities from bidding on city contracts if any officer, partner, or principal with more than 10% ownership has donated more than $2,000 to a campaign of someone with ultimate responsibility for awarding city contracts.

Kyle and Kimberly Suzanne Witwer filed the suit in April challenging the ordinance and requesting a judge block it’s implementation.

While no ruling was made on Wednesday, both sides must submit proposed findings of fact and conclusions of law by Friday.

There could be a potential ruling next week.

The main issue being considered at this time is whether state contribution laws make this ordinance unnecessary.

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March 12, 2019 •

Major Campaign Finance Reform Becomes Effective

District of Columbia Act 22-578 passed Congressional review and is now effective. The Campaign Finance Reform Amendment Act of 2018 removes the Office of Campaign Finance from the Board of Elections and establishes an independent five-member Campaign Finance Board (CFB). […]

District of Columbia Act 22-578 passed Congressional review and is now effective.

The Campaign Finance Reform Amendment Act of 2018 removes the Office of Campaign Finance from the Board of Elections and establishes an independent five-member Campaign Finance Board (CFB).

The Act restricts political contributions by contractors doing business with the district and addresses improper coordination between campaigns, political action committees, and independent expenditure committees.

The pay-to-play component of the bill bans campaign contributions by businesses seeking contracts of $250,000 or more.

The pay-to-play provisions take effect after the November 2020 general election.

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January 25, 2019 •

NYCU Video Digest – January 25, 2019

We know there is a lot of news happening today, but here are four lobbying, campaign finance and pay-to-play stories from this week you don’t want to miss!  

We know there is a lot of news happening today, but here are four lobbying, campaign finance and pay-to-play stories from this week you don’t want to miss!

 

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January 22, 2019 •

Firm Sues in Federal Court After Violating Illinois Pay-to-Play Law

A Chicago-based real estate firm is challenging Illinois pay-to-play law in federal court as unconstitutional after losing a contract when its founder made contributions to gubernatorial candidates. Plaintiffs, The Habitat Company and its founder Daniel Levin, lost a one-year management […]

A Chicago-based real estate firm is challenging Illinois pay-to-play law in federal court as unconstitutional after losing a contract when its founder made contributions to gubernatorial candidates.

Plaintiffs, The Habitat Company and its founder Daniel Levin, lost a one-year management contract for a mixed-income building after Chief Procurement Officer Ellen Daley of the Illinois Procurement Office notified the firm that Levin’s campaign contributions to gubernatorial candidates in 2018 violated the state procurement code.

In Illinois, pay-to-play law prohibits government contractors or affiliated persons from making any contribution to a political committee established to promote the candidacy of the officeholder responsible for awarding the contracts.

The complaint alleges constitutional violations of Levin’s First Amendment rights of speech and association and Fourteenth Amendment rights of equal protection and due process of law.

Plaintiffs seek a temporary restraining order and a preliminary injunction to void Daley’s decision and prevent the Illinois Housing Development Authority from entering into a property management contract with another company.

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December 5, 2018 •

D.C. Campaign Finance Bill Passes Second Vote

The D.C. Council unanimously approved a bill in a second full council vote that aims to restrict political contributions by government contractors doing business with the district. The bill also addresses improper coordination between campaigns, political action committees and independent […]

The D.C. Council unanimously approved a bill in a second full council vote that aims to restrict political contributions by government contractors doing business with the district.

The bill also addresses improper coordination between campaigns, political action committees and independent expenditure committees.

The pay-to-play component of the bill would ban campaign contributions by businesses seeking contracts of $250,000 or more.

Provided the mayor approves the legislation, the act of the council travels to Congress for a 30-day review. If approved and funded, the bill would take effect on October 1, 2019.

Pay-to-play provisions would take effect after the November 2020 general election.

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November 26, 2018 •

D.C. Council Approves Pay-to-Play Reforms

The Washington D.C. Council approved a bill in a first full council vote that aims to restrict political contributions by government contractors doing business with the district. The bill also addresses improper coordination between campaigns, political action committees and independent […]

The Washington D.C. Council approved a bill in a first full council vote that aims to restrict political contributions by government contractors doing business with the district.

The bill also addresses improper coordination between campaigns, political action committees and independent expenditure committees.

The pay-to- play component of the bill would ban campaign contributions by businesses seeking contracts of $250,000 or more.

The council votes again on the bill in December. If approved and funded, the bill would take effect on October 1, 2019.

Pay-to-play provisions would take effect after the November 2020 general election.

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October 30, 2018 •

Washington D.C. Campaign Finance Reform Addresses Pay-to-Play

The Washington D.C. Council Committee on the Judiciary and Public Safety unanimously passed a bill that aims to restrict political contributions by government contractors doing business with the district. The bill also addresses improper coordination between campaigns, political action committees […]

The Washington D.C. Council Committee on the Judiciary and Public Safety unanimously passed a bill that aims to restrict political contributions by government contractors doing business with the district.

The bill also addresses improper coordination between campaigns, political action committees and independent expenditure committees.

The pay-to-play component of the bill would ban campaign contributions by businesses seeking contracts of $250,000 or more.

If passed by the full council, the bill is subject to appropriation and, if funded, would take effect on October 1, 2019.

Pay-to-play provisions would take effect after the November 2020 general election.

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July 9, 2018 •

FREE White Paper: Understanding Pay-to-Play: Laws, Lessons, and Best Compliance Practices

State and Federal Communications has prepared a new white paper with a comprehensive examination of pay-to-play laws and the characteristics of an effective pay-to-play compliance program. This white paper is useful for politically active business entities who have, or are […]

State and Federal Communications has prepared a new white paper with a comprehensive examination of pay-to-play laws and the characteristics of an effective pay-to-play compliance program.

This white paper is useful for politically active business entities who have, or are seeking, to obtain government contracts amid the complex regulatory scheme of pay-to-play laws.

A strong pay-to-play compliance program can mitigate your risks and facilitate a smooth procurement experience that stays within the boundaries of all regulations.

Have you ever asked:

  • Is quid pro quo considered bribery in exchange for a specific contract?
  • To whom may we contribute?
  • What should we be aware of while negotiating a contract?

This white paper includes:

  • Pay-to-play categorization: focus on restriction, disqualification, or disclosure
  • How and why to implement best practices for making contributions
  • Recent trends in ethical business contributions and procurement laws

If you are attempting to obtain a local or state contract, this free white paper is a must-read.

Click here for downloading instructions – and ensure you and your team can say “I Comply!”

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July 2, 2018 •

Fort Wayne Passes Another Pay-to-Play Ordinance

The Fort Wayne City Council passed another bill related to pay-to-play practices. Similar to last year’s pay-to-play ordinance, the City Council overrode Mayor Tom Henry’s veto in a 7-2 vote. The newly passed measure, prohibits business entities, with any officer, […]

The Fort Wayne City Council passed another bill related to pay-to-play practices.

Similar to last year’s pay-to-play ordinance, the City Council overrode Mayor Tom Henry’s veto in a 7-2 vote.

The newly passed measure, prohibits business entities, with any officer, partner, or principal with more than 10 percent ownership who have donated more than $2,000 to a campaign of someone with ultimate responsibility for awarding city contracts, from bidding on city contracts.

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May 1, 2018 •

Ask the Experts – Employee Personal Political Contributions

Q. Before I can make a political contribution using my own funds, my employer requires that I obtain permission first.  Can my employer legally do this? A. Yes, employers may require employees to seek preapproval before making personal political contributions. Not […]

Nola Werren
Q. Before I can make a political contribution using my own funds, my employer requires that I obtain permission first.  Can my employer legally do this?

A. Yes, employers may require employees to seek preapproval before making personal political contributions. Not only can your employer require this, it’s smart business to do so. Employers may even require preapproval from family members of employees.

This preapproval requirement has evolved as a result of the increased number of jurisdictions enacting pay-to-play laws. A seemingly innocuous contribution by an employee could result in the loss of government contracts, fines, and a ban on future contracting. Criminal sanctions may apply when repeated violations occur. By requiring pre-approval, your employer can properly vet the contribution for compliance with a jurisdiction’s pay-to-play law, including disclosure requirements.

In a majority of jurisdictions, employees covered by pay-to-play laws include officers, partners, directors, senior management, salespersons, and their spouses and dependent children. In Pennsylvania and Kentucky, all employees are covered in the instance of a no-bid contract.

Requiring preclearance of employee personal political contributions is certainly more preferable than imposing a ban on employee contributions, which could result in a violation of applicable labor laws. Various jurisdictions bar employers from retaliating against employees for engaging in political activities, which can include everything from participating in a political rally to making campaign contributions. Even though an employer can require preapproval, an employer cannot directly or indirectly affect an individual’s employment by means of discrimination or threat of discrimination based on the individual’s personal political contributions.

experts line
 

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

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