Q. I am interested in making contributions to state candidates in the upcoming elections. Does the fact that I’m a registered lobbyist affect my ability to contribute?

A. In certain states, being a registered lobbyist does impact your ability to give to a political candidate, ranging from a total ban on political activity, to simply having to report the contributions on your periodic reports.

In Arizona, Colorado, Iowa, Kansas, New Mexico, and Oklahoma, lobbyists may not make contributions to lawmakers while the state legislature is in session. Fortunately, in the context of the upcoming elections, most states have adjourned sine die. In California, a lobbyist may not make a contribution to a candidate for any office for which the person is registered to lobby. Because most lobbyists are registered to communicate with the legislature, this ends up being nearly a total ban on contributions to legislators. Similarly, in Kentucky, a lobbyist registered with the legislative branch may not make a contribution to a lawmaker. In Alaska, a lobbyist is only allowed to contribute to candidates for office within his or her voting district.

There are several states in which lobbyists are allowed to make contributions, but must disclose the donations on their lobbyist reports. Massachusetts, New Hampshire, New Mexico, Rhode Island, and Washington are examples.

Some states have unique provisions for politically-active lobbyists. In Pennsylvania, for instance, a lobbyist who makes political contributions must register and report in the same manner as PACs. Minnesota lobbyists must include their registration numbers in the memo section of campaign contribution checks.

If you or a member of your team would like to make a campaign contribution in a state in which you are registered, please contact a member of the State and Federal Communications Compliance Department for fact-specific guidance.

(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.

Campaign Finance

“Text Message Donations Good for Democracy, Risky for Privacy” by Rachel Levinson-Waldman in Wired.

“In Win for Wireless Industry, FEC Clarifies Rules for Texting Campaign Contributions” by Jenna Greene in The Blog of Legal Times.

Louisiana: “Ethics board reviewing campaign finance rules” by The Associated Press in the Daily Comet.

Tennessee:  “TN election finance board investigates donor, PAC contributions” by The Associated Press in the Tennessean.

Lobbying

“Wall Street Lobbying Efforts Reach $4.2 Billion Since 2006, Or $1,331 A Minute, Report States” by Nick Wing in the Huffington Post.

Florida: “In session or out, lobbying remains a big business” by Bill Cotterrell in the Florida Current.

New York: “Lobby ban snags offer of free work” by Jimmy Vielkind in the Albany Times Union.

Pennsylvania:  “State spends less on federal lobbying but still leads the nation” by Melissa Daniels in the Daily Local News.

Ethics

California: “Bill to limit gifts to California lawmakers dies a quiet death” by Jim Sanders in the Sacramento Bee.

Georgia: “Sen. Balfour to pay $5,000 to settle ethics case” by Ray Henry (Associated Press) in the San Francisco Chronicle.

A federal judge has upheld Vermont’s contribution limits on political action committees. Vermont Right to Life Committee (VRLC) and its related political committee, Vermont Right to Life Committee – Fund for Independent Political Expenditures (FIPE), filed suit alleging that Vermont’s registration, reporting, and disclosure requirements for PACs are too broad and unconstitutional, and that FIPE should not be subject to the $2,000 limit on PAC contributions because it only makes independent expenditures.

The judge rejected FIPE’s claim that it should not be subject to the contribution limits on the basis that there is a “fluidity of funds” between FIPE and VRLC that provides no safeguard against unlimited contributions being used to fund candidate contributions.

Secretary of State Jim Condos applauded the ruling; however, the opinion makes clear that the decision to uphold the $2,000 contribution limit weighed heavily on the facts of the case, in particular the lack of separation between FIPE and VRLC. VRLC plans to appeal the ruling.

The New Jersey Election Law Enforcement Commission (ELEC) has voted unanimously to raise the inflation-adjusted limits and thresholds for political contributions beginning in 2013.

If accepted by the legislature, contributors would be able to give up to $3,800 per election to gubernatorial candidates. The contribution limits from single donors for non-gubernatorial candidates would increase from $2,600 to $3,000.

Additionally, political committee reporting thresholds for non-gubernatorial candidates and committees would increase, as would penalties for violations.

According to the press release from ELEC, gubernatorial candidates who qualify for public funding could spend a maximum of $5.6 million in primary elections and $12.2 million in general elections.

The commission has until December 15th to report to the legislature its final limits and threshold adjustments.

The ELEC 2013 Cost Index Report can be downloaded here.

Lawmakers began the 2012 Special Session I last week to consider budget bills including a two-year, $85 billion proposal.

The special session was convened immediately upon adjournment sine die of the 2012 regular session, but was in recess until Wednesday, March 21st.

The House and Senate adjourned in the afternoon on March 21st and will again convene this afternoon on Monday, March 26th to continue the special session.

No person or PAC may make or promise to make a contribution to a member of the general assembly, the governor, lieutenant governor, attorney general, or their campaign committees, during the annual regular session of the general assembly. This ban does not apply to contributions during special sessions.

Photo of the Virginia State Capitol by Amadeust on Wikipedia.

The 2013 Federal Budget proposed by President Obama would remove provisions put in the Fiscal Year 2012 National Defense Authorization Act which prohibit federal agencies from requiring the disclosure of political contributions and expenditures from vendors bidding on federal contracts.

The prohibition was inserted into the 2012 Act as a response to a draft executive order which was leaked in the spring of last year. The executive order would have required disclosure of campaign contributions and political expenditures by bidders of federal contracts.

“The White House, contrary to the intent of Congress, is apparently still trying to advance a policy that would inject politics into the federal contracting process instead of focusing on promoting competition and best value in contracting,” said U.S. Senator Susan Collins in a minority press release from the U.S. Senate Committee on Homeland Security and Government Affairs.

Even with the current prohibition of disclosure from bidders, some groups are urging the President to require federal contractors disclose their political contributions after the bidding process is completed and a federal contract is awarded.

A brief review of this issue can be found here.

In the spring of 2011, a draft presidential executive order was leaked to the public. The order would require every entity submitting offers for federal contracts to disclose certain political contributions and expenditures made within the two years prior to submission of their offer. The disclosure requirement included contributions made to federal candidates, parties, and committees by the bidding entity, its officers, and any affiliates or subsidiaries within its control. Contributions made to parties for independent expenditures and electioneering communications would also be reported. These disclosures would be required whenever the aggregate amount of the contributions and expenditures by the bidding entity exceed $5,000.

Reaction to the order was swift. The U.S. Chamber of Commerce, writing on behalf of a coalition of more than 80 business groups and trade associations, strongly protested the proposed executive order. Meanwhile, a letter in support of the order, signed by more than 30 public interest groups, urged full disclosure of campaign contributions and expenditures by federal government contractors. U.S. Representative Anna G. Eshoo sent a letter to President Obama, signed by more than 60 members of the House, in support of the proposed executive order.

The House Committee on Oversight and Government Reform and the House Small Business Committee held a joint hearing to examine the order, evaluate its impact and consequences on the federal acquisition system, and determine whether it introduced politics into the procurement process. Bills opposing the proposed order were introduced in both the House and the Senate. Finally, a compromise amendment, precluding an executive agency from requiring a vendor bidding on a contract to disclose political contributions, was added to the National Defense Authorization Act for Fiscal 2012. The act passed and was signed by President Obama at the end of 2011.

Passage of the bill did not end calls for disclosures of political contributions from federal contractors, however. Petitions with more than 100,000 signatures were submitted by Public Citizen and MoveOn.org to the White House, urging the President to require federal contractors to disclose their political contributions after the bidding process is completed and a federal contract is awarded.

Petitions with more than 100,000 signatures have been submitted to the White House urging the president to require federal contractors to disclose political contributions.

Last spring a leaked draft executive order requiring vendors submitting offers for federal contracts to disclose political contributions and expenditures resulted in both fervent support and opposition. A compromise amendment was inserted into the 565-page National Defense Authorization Act for Fiscal 2012, which passed in December, precluding federal agencies from requiring vendors bidding on federal contracts to disclose political contributions.

In their press release arguing for full transparency of corporate political spending, Public Citizen and MoveOn.org explained its petitions are asking for disclosures after the contracts are awarded.

For previous articles on Lobby Comply by George Ticoras on this topic, you can read posts from May 10, May 12, May 20, June 1, July 28, 2011, and January 5, 2012.

Photo of the The White House by UpstateNYer on Wikipedia.

A new law signed by President Obama precludes federal agencies from requiring vendors bidding on federal contracts to disclose political contributions.

Buried in the 565-page National Defense Authorization Act for Fiscal 2012, House Resolution 1540, is language amending Chapter 137 of Title 10 of the United States Code.

The amendment explicitly prohibits requiring a contractor to submit political information as part of a solicitation, or a request for bid or proposal. It also bars contractors from being required to submit political information during the modifications of a contract, or while exercising a contract option.

The language was added as an amendment to HR 1540 in response to a leaked draft executive order which required every entity submitting offers for federal contracts to disclose certain political contributions and expenditures made within the two years prior to submission of their offer.

For previous articles on Lobby Comply by George Ticoras on this topic, you can read posts from June 1, May 20, May 12, and May 10, and July 28, 2011.

Following in the footsteps of California, the state of Maryland will be allowing political campaign contributions via text messages on mobile devices. Jared DeMarinis, Maryland State Board of Elections’ Director of Candidacy and Campaign Finance,  says this will open the process up to more people giving smaller donations.

For the full story, read “Rule would allow campaign donations by text message” by Annie Linskey in the Baltimore Sun.

According to the article: “Maryland’s General Assembly passed legislation this year authorizing campaign contributions by text message and directing the Board of Elections to implement the change. The board has drafted regulations, which are subject to public comment before they can go into effect.”

Q:  I want to make political contributions to a candidate for state assembly.  The limits are per election.  How do I make certain the contribution is attributed to the correct election [primary or general]?  Does it matter when I give the contribution in relation to the election?

A:  In this situation it is important to have a “meeting of the minds” between the contributor and the candidate.  The contributor’s intent should be made clear by either indicating the name of the election on the memo line of the check [e.g., 2012 Primary Election], or including a cover letter with the check, or both.  The cover letter can contain language specifically earmarking the contribution for the intended election.  Using these precautions should prevent the candidate from allocating the contribution to an election different from the one intended by the contributor, thereby resulting in a violation of the per election contribution limits.   It is not unusual for a candidate to file his pre- or post- election reports disclosing aggregate contributions from a donor in violation of the per election limit.  The candidate allocated two or more checks to one election, but the contributor intended one check for the primary and one for the general.

Furthermore, a contributor must be aware of the timing of the contribution.  For instance, in New Jersey, you only have 17 days after an election to make a contribution for that particular election; otherwise the contribution is automatically applied toward the next election, regardless of the contributor’s intent.

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.

The Denver District Court has ruled Colorado Secretary of State Scott Gessler did not have the authority to raise contribution thresholds concerning when state issue committees have to register and report their activity.

At issue was Gessler’s adoption of Campaign and Political Finance Rule 4.27, which increased from $200 to $5,000 the threshold at which an issue committee must register and report. The $200 threshold, set by the Colorado Constitution, was found to be too burdensome in the recent Colorado case of Sampson v. Buescher.

The court determined that, despite the conflict, Gessler’s alteration of the constitutionally mandated $200 threshold was an impermissible unilateral alteration of the Colorado Constitution. Gessler plans to appeal the ruling.

Political contribution limit changes proposed this summer by the Montana Office of the Commissioner of Political Practices take effect today.

The adjustments affect the amount of contributions individuals, political parties, and political committees may make to candidates for the office of governor and other statewide positions.

Additionally, as also proposed this summer by the Commissioner’s office, electronic filing of reports is scheduled to begin in January.

Individuals with federal contracts should be allowed to make political contributions to federal candidates or political parties, a lawsuit filed yesterday by the American Civil Liberties Union (ACLU) argues.

The suit, Wagner v. Federal Election Commission, filed in the United States District Court for the District of Columbia, challenges the constitutionality of section 441c of Title 2 of the U.S. Code, which prohibits any vendors with contracts with the federal government from making such contributions.

According to its press release, the ACLU is asking the Court, on behalf of the three named plaintiffs, to declare the law unconstitutional as applied to individuals who have personal services contracts with federal agencies. Because federal workers who are not contractors may make federal political contributions, while contractors performing the same work may not, the suit argues section 441c violates both the Equal Protection Clause of the Constitution and the First Amendment.

Photo of the United States District Court for the District of Columbia courtesy of the Court’s website.