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News

CLE Class on Campaign Rules Builds Momentum for 2020 Conference

By John Murph

February 28, 2020

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On February 19 the D.C. Bar’s CLE Program presented the timely course “Election Year 2020: Understanding the Complex Rules Regulating Political Participation,” the second special program leading up to the Bar’s 2020 Conference in June.

The three-hour CLE class, led by Charles Spies of Dickinson Wright PLLC, offered attendees an overview of the rules for advising clients or firm members who are politically active. Spies drew from his extensive experience working in national political campaigns, including as chief financial officer and counsel for Mitt Romney’s 2008 campaign for the Republican presidential nomination and as election law counsel to the Republican National Committee.

One key takeaway for attendees was to avoid contributions in the name of another, a common pitfall among law firms and lawyers. For instance, a law firm that reimburses its employees for their individual contributions to a federal campaign is in clear violation of Federal Election Commission (FEC) rules, Spies said.

“Once the FEC starts investigating, [the violation] is very easy to prove,” Spies explained. “They subpoena your bank records, which will show that everyone who gave to the candidate also got a reimbursement and/or a bonus of the same amount. Paying a bonus to somebody to compensate for their contributions is not allowed.”

Election-CLE2-20200228-2Spies said the FEC’s “contributions under the name of another” prohibition has received more publicity lately, especially around campaign-related activities by super political action committees (Super PACs). Although corporations are allowed to contribute unlimited money to Super PACs, questions may arise concerning the validity of those corporations, said Spies. Wal-Mart, for example, could give money to a federal campaign without much suspicion, but if a privately owned LLC started up in mid-March, gave $1,000 to a federal campaign in mid-April, then shut down in late April, it would create a damaging fact pattern, he said.

Another tricky area for law firms and corporations is the provision of in-kind goods and services, such as physical space within a law firm for federal campaign activities. In this scenario, Spies said, law firms and corporations have two options: provide the space across the board at fair-market value or make the space available for free to anyone who wants it.

“But if someone like David Duke and the Ku Klux Klan request to use that space, technically you have to make it available to them,” Spies warned. “Most law firms and corporations don’t want their spaces available to repulsive individuals or organizations, so they have to set a market value and an across-the-board policy for use of their space.”

Before discussing the dos and don’ts of political participation, Spies provided a thorough review of significant federal laws that affect current regulations regarding federal campaign contributions. These included the Federal Election Campaign Act of 1971, the formation of the Federal Election Commission in 1974, and the Bipartisan Campaign Reform Act of 2002. He also discussed landmark decisions such as Buckley v. Valeo (1976), Citizens United v. FEC (2010), and CREW v. FEC (2018), among other cases that shaped federal law.

In addition, Spies noted that each state and local jurisdiction has its own campaign finance laws pertaining to nonfederal campaigns, and some of those laws impose source restrictions, contribution limits, and reporting requirements. Still, the federal prohibition of contributions made by foreign nations, national banks, and federally chartered corporations also apply at the state level.

The D.C. Bar 2020 Conference on June 24 to 26 at the Omni Shoreham Hotel will explore important developments in the law and commemorate the centennial of women’s suffrage in the United States. The multiday conference also features conversations around the current and future state of voting rights in the country. Registration is now ongoing.