GRA Ethics Refresher June 2018 Staying Compliant in 2018 and Beyond Kate Belinski Nossaman LLP Brad Deutsch Garvey Schubert Barer
1 Scope of Presentation Lobbying Disclosure Act (LDA) Foreign Agents Registration Act Political Intelligence Political Communications Revolving Door Executive Branch Gift Laws Congressional Ethics/Gifts Political Activities
2 Lobbying Disclosure Act ( LDA ) Overview LDA Provisions Registration Requirements Pivot Off Definition of Lobbyist Two or More Contacts and 20% Activity Threshold Includes research, preparation and planning activities in support of contacts $3,000 exemption
3 LDA Covered Officials Legislative Branch All Members, officers, and employees of Congress Executive Branch EX I-V Appointees Schedule C Military grades O-7 and above All officers and employees of the EOP
4 Reportable Activity Legislative Branch Formulation, modification, or adoption of federal legislation or legislative proposals Executive Branch Formulation, modification, or adoption of a Federal rule, regulation, Executive order, or any other program, policy or position of USG Administration or execution of a Federal program or policy (incl. negotiation, award, or administration of a contract, grant, loan, permit, or license)
5 LDA Exceptions Ministerial contacts that do not include an attempt to influence Congressional testimony Information provided in writing in response to a request Communications made in response to Federal Register notices
6 LD-2 Reports Quarterly Reports of Lobbying Activity Information Required to be Disclosed 20-Year Prior Government Look-Back for Internal Lobbyists Quarterly Fees Received (portion related to lobbying) Disclosure of Issue Areas Level of Specificity for Sub-Issues Disclosure of Affiliated Organizations/Coalitions Foreign Interest 20% Equitable Ownership; OR Directly or indirectly controls or supervises lobbying activity
7 LD-203 Reports Semi-Annual Report of Certain Contributions Filed by Company and Every Company Lobbyist Individually Certain Contributions = Political Action Committee ( PAC ) Name(s) and Disbursements over $200 from PACs Lobbyist Personal Contributions over $200 Expenditures Involving Officials Reported if Made to: An Event to Honor an Official An Entity in Recognition of the Official Named for the Official (Legislative Branch Only) An Entity Established, Financed, Maintained or Controlled by the Official An Entity Designated by the Official An Event Held by or in the Name of the Official A Presidential Library or Inaugural. ($200 threshold)
8 Lobbying vs. Political Communications Strict Prohibition on Political (fundraising) Activity on Official Time, in Official Facilities, or Using Official Resources Soliciting Contributions on Official Property is a Criminal Offense On the Hill: Avoid Conversations about Fundraisers and Don t Bring Checks! Ban on Linking Official Actions to Political Considerations Bribery and Honest Services Fraud: Quid Pro Quo Bottom Line: Lobbying Communications Should Stick to Substantive Issues Political Communications Should Stick to Elections or General Discussion of Issues (no official ask even if nuanced)
9 Foreign Agent Registration Act (FARA) Every agent of a foreign principal must register with DOJ and file forms outlining: All agreements with the foreign principal All income from the foreign principal Any expenditures on behalf of the foreign principal. These forms are public records and must be supplemented every six months. Must register within 10 days of becoming an agent
10 Who is a Foreign Principal? Includes: Foreign governments Foreign political parties Any entity owned or controlled (in whole or in part) by a foreign government, political party, or other foreign principal Any non-us citizens outside the US Any corporation, organization or association that is organized under the laws of, or has its principal place of business in, a foreign country Covered Activities Advocacy, PR & Political Consulting, Grassroots, Political Contributions
11 LDA Exemption FARA Registration is NOT Required IF: An agent of a foreign principal has registered and is reporting under the Lobbying Disclosure Act on behalf of the client This Exemption Does NOT Apply IF: The foreign principal is a foreign government or a foreign political party; or The foreign principal is controlled by a foreign government or foreign political party Pending Legislative Changes
12 Political Intelligence Political Intelligence Defined (Per STOCK Act) Material Nonpublic Information Intent to Use Information for Investment Decisions Types of Information / Collection Methods Distinctions between opinions and facts Best Practices Avoid mischaracterizing sources Clearly identify analysis/opinions Review all information before public dissemination
13 Congressional Revolving Door Senate Senators: Two Year Ban, Scope is Entire House and Senate Senior Staff (75% of Member Salary): One Year Ban, Entire Senate Committee or Leadership Staff: One Year Ban, Current and Prior Staff and Offices of Senators on the Committee or in Leadership Other Staff: One Year Ban, Prior Office Only House Members: One Year Ban, Scope is Entire House and Senate Senior Personal Staff (75% of Member Salary): One Year Ban, Prior Office Only Senior Committee or Leadership Staff: One Year Ban, Current and Prior Staff and Offices of Members on the Committee or in Leadership Other Staff: No Restrictions
14 Executive Branch Revolving Door Trump Executive Order for Appointees Presidential/VP Appointees, Schedule C s and Non-career SES Entering Government 2 Year Ban on participating in particular matters involving specific parties related to former employers or clients. 2 Year Ban on registered federal lobbyists engaging on matters they lobbied Leaving Government (Statutory) Lifetime ban on participating in particular matter involving specific parties where employee was personally and substantially involved 2 Year (statutory) ban on switching sides in matters under oficial responsibility 1 Year (statutory) ban on communicating with employees of former agency Ban on lobbying any covered official or non-career SES for life of the Administration 5 Year Ban on engaging in lobbying activities with former agency Lifetime Ban on lobbying on behalf of a foreign government or political party
15 Executive Branch Gift Rules Career Employees Gift Limit Less than $20 Per Occasion Aggregate Annual Limit of $50 From Any Source Relevant Exceptions Widely Attended Event (Gathering) Rules Differ Written Determination Now Required No Reception Exception (But Modest Items of Food and Refreshment OK) No Alcohol No Charity Event Exception (May Qualify Under WAG ) Personal Friendship - What s Pending Analysis
16 Executive Branch Rules (Continued) Political Appointees (Trump Ethics Pledge ) Presidential/VP Appointees, Schedule C s and Non-career SES $0 Gift Limit for Lobbyists and Lobbyist Registrants Eliminated Gift Exceptions for Widely-Attended Gatherings ( WAGs ), Nominal Food and Beverage Per OGE Guidance, attendance at WAGs is permitted if appointee has a speaking role Notable Surviving Exceptions: Personal Friendship, Travel in Connection with Prospective Employment. Individuals and Organizations Not Registered to Lobby Apply Rules for Career Employees
17 Congressional Gift Rules Limit on Gifts to Members and Staff of Congress from Entities that Do Not Employ Lobbyists $49.99 Per Occasion / $99.99 Annual Aggregate From Any Source Gifts of Less Than $10 Do Not Count Toward Aggregate Note $0 Gift Limit From Lobbyists / Employers / Clients Certain Limited Exceptions Apply Widely Attended Events (Defined) Waiver Should be Obtained Charity Events Snacks/Refreshments of Nominal Value Not Part of a Meal ( reception exception ) No Waiver Needed
18 Congressional Gift Rules Personal Friendship Informational Materials Constituent Meeting Exception for Senate: Free Attendance/Modest Meal (Under $50) if at Least 5 Constituents in attendance and No Lobbyists Facility Visit Issue House Modest Meal Permitted Even if Lobbyists Present Senate (See Above) No Limit on Lobbyist Participation if Nothing of Value Provided
19 Political Fundraisers Fundraisers For Federal Candidates/Parties Must be Hosted by PAC or Individual - NOT Company or Consulting Firm Candidate Must Pay Costs for Food, Beverage and or Individual) Staff Must Use Volunteer Time to Plan Event No Corporate Contributions Best Practice: Mail Checks to Campaign or Fundraiser
20 Political Contribution Limits Individuals Current Cycle, up to $2,700 per candidate, per election (primary and general) unchanged from 2016 cycle Up to $5,000 per year to PACs. 2014 decision eliminated aggregate limits for individuals Cromnibus Party Limits: Annual Individual and Non-Multicandidate PAC Contribution Limits 2017/2018 Cycle Main Party Account Legal/Recount Account Convention Account Building Account TOTAL RNC/DNC $33,900 $101,700 $101,700 $101,700 $339,000 NRSC/DSCC $33,900 $101,700 N/A $101,700 $237,300 NRCC/DCCC $33,900 $101,700 N/A $101,700 $237,300 Total Annual Individual and Non-Multicandidate PAC Contribution Limit 2017/2018 Cycle: $813,600
21 Questions Kate Belinski Partner Nossaman LLP kbelinski@nossaman.com 202.887.1473 Brad Deutsch Principal Garvey Schubert Barer bdeutsch@gsblaw.com 202.298.1793