Political Law

Lobbying laws have historically applied to attempts to influence legislative and regulatory outcomes but have been expanded in recent years to cover efforts to obtain government contracts or investment (often known as "procurement lobbying"). As a result, business people involved in public sector procurement, public pension system investment, and other public sector advisory relationships are now required to register as lobbyists in many jurisdictions. 

Corporate political spending in connection with elections and legislative initiatives is subject to extensive regulation at the federal, state, and local levels, both directly and through various corporate governance mechanisms. Inadequate internal controls regarding corporate political activity can lead to serious legal and reputational consequences. At the federal level, although corporations are prohibited from making contributions to candidates directly, corporations may establish a political action committee (PAC) that can solicit voluntary contributions from certain employees and make contributions to candidates and other PACs. The Supreme Court’s opinion in Citizens United and other recent legal developments have ushered in a new era of campaign spending in U.S. elections. In addition to giving rise to so-called Super PACs, these developments have major implications for the broader regulation of corporate political activity. 

These laws place restrictions on the ability of government contractors, prospective government contractors and their employees to make and solicit political contributions. Pay-to-play regimes often impose severe penalties on a strict liability basis. Thus, even inadvertent failures to comply with a pay-to-play regime's obligations can result in a company being banned from doing business in a particular jurisdiction for a period of years.

Virtually every jurisdiction restricts the gifts and entertainment (including meals) that parties seeking to do business with the government can provide to public officials and employees. There is substantial variation in gift law requirements across jurisdictions, and different government agencies in a single jurisdiction will often have different gift law rules. 

Hiring former government officials and employees to help navigate a complex regulatory landscape carries its own potential for legal exposure as revolving door rules in most jurisdictions curtail the capacity of these former officials to communicate with and appear before the government agency where they previously served. 

We have deep experience with state, local, and system-specific placement agent regimes, which regulate the solicitation of investment by asset managers from U.S. public pension systems. Placement agent regimes, which combine elements of securities regulation and political law regulations, vary widely from jurisdiction-to-jurisdiction and system to system, and often feature onerous disclosure and certification requirements. We have experience in counselling investment advisers, third party placement agents, and prime brokers in navigating such regimes, from initial solicitation to closing and beyond.  Our placement agent advice is generally grounded in a holistic approach to the complex set of political law issues implicated by soliciting public sector investment, including lobbying, gift, and ethics issues.

Individuals nominated to senior positions in the Executive Branch of the federal government, including senior White House and State Department officials, must navigate a complex web of laws and regulations before they are able to begin their government service. We guide these nominees and their private sector employers through this process by advising them on federal conflict-of-interest, security clearance, and financial disclosure requirements. We also help these individuals formulate strategies for resolving legal and political issues connected to their nomination.

The SEC’s new municipal advisor regulations address interactions between financial advisors and municipal entities. We provide advice to a number of financial institutions – including global banks, prominent private equity and hedge funds, placement agents, prime brokers, and consulting firms – on the implications of these regulations. We assist clients in developing compliance programs and policies, structuring business lines and client relationships to avoid registration obligations, and preparing new marketing materials to address concerns about regulatory risk. We also provide ongoing compliance and business line support.

Federal Election Commission Obtains $940,000 in Fines for Foreign Involvement in a U.S. Corporate Contribution to a Super PAC Supporting a 2016 Presidential Candidate

The Federal Election Commission ("FEC") settled violations of federal campaign finance law in connection with the involvement of foreign nationals on a U.S. company’s board in making $1.3 million in contributions to a Super PAC supporting then-Presidential candidate Jeb Bush. The FEC found the contributions violated the federal ban on the involvement of foreign nationals in making contributions to political committees. The company agreed to a $550,000 penalty and the Super PAC agreed to a $390,000 penalty that, when taken together, is the third-largest penalty in the FEC’s four-decade history.

Read the full article here

Pay-to-Play Lessons from this Week's SEC Settlements

Law 360.com (January 2017)

Charles Borden, William E. White, Claire Rajan

On Jan. 17, 2017, the U.S. Securities and Exchange Commission announced 10 separate settlements with investment advisory firms relating to violations of SEC Rule 206(4)-5, the SEC’s payto- play rule for investment advisers and exempt reporting advisers. Although none of the 10 cases involved a major penalty (the largest fine was $100,000), they collectively demonstrate the SEC’s continued focus on pay-to-play enforcement cases and the extent to which pay-to-play enforcement represents an important priority of the Enforcement Division’s new Public Finance Abuse Unit. As Andrew Ceresney, the then-head of the SEC’s Enforcement Division, noted in 2016 when discussing the unit’s work, there will be “continued activity” in public finance enforcement, and thus these settlements may be a preview of things to come. And because the firms involved are banned from receiving compensation from affected public sector investors, the real economic cost of the violations is likely to be much higher. The settlements also serve as a timely reminder that exempt reporting advisers, while exempt from registration and some aspects of SEC regulation, are subject to a number of compliance and anti-fraud provisions that apply regardless of registration status. Venture capital firms and mid-sized advisers that claim exempt reporting adviser status should ensure that they are aware of their compliance obligations, and have policies and procedures in place to avoid inadvertent violations.

Security Clearances and the Regulation of National and Domestic Security Personnel

Risk & Regulation Magazine (Winter 2016)

Robert Rizzi, Charles Borden

In recent years, Western security establishments have been subject to a number of significant security breakdowns, with individuals obtaining and widely disseminating massive amounts of classified information. These breakdowns have highlighted some of the limits of the current security process, both in terms of how information is classified, and the process by which governments determine who may have access to classified information.

Lobbying Laws and the “Brexit” Negotiations Compliance Corner, Public Affairs Council (July 2016)

Charles Borden, Samuel Brown

As the dust settles following the shock of the “Brexit” vote and as the United Kingdom prepares to negotiate the terms of its departure from the European Union, many stakeholders are already reaching out to the various governments involved in the process to urge a compromise that safeguards their respective interests. While these Brexit-related negotiations appear to be prompting a government relations “surge,” the growing size and sophistication of lobbying and public affairs in the UK and EU reflects a long-term trend. Brussels is now second only to Washington, D.C., in terms of importance to the public affairs profession, and lobbying has increasingly become a key element of corporate strategy in EU member states such as Ireland and the UK.

Allen & Overy’s Weekly Election Series: The Life of the Party: National Party Conventions and Corporate Contributions

Corporate Counsel (July 13, 2016)

Charles Borden, Samuel Brown

This article, the thirteenth in Allen & Overy's weekly columns on political law issues designed to help in-house legal and compliance personnel manage political law risks, addresses the national political party conventions. From July 18-21, the Republican party will meet in Cleveland to formally nominate Donald Trump for president of the United States. A short time later, from July 25-28, the Democrats will convene in Philadelphia to nominate Hillary Clinton. Corporate actors have historically been involved in the convention process, both in terms of helping to finance the events and in holding outreach or promotional events to coincide with the conventions. Both forms of involvement implicate complex rules, which we address in this article.

Allen & Overy’s Weekly Election Series: K Street in Europe: Lobbying and Transparency in the EU

Corporate Counsel (June 15, 2016)

Charles Borden, Samuel Brown, Valentijn De Boe

In this article, the twelfth in Allen & Overy's weekly columns on political law issues designed to help in-house legal and compliance personnel manage risks, we turn to lobbying regulation in the European Union. We touched on this subject in our last article, when we wrote about the rules that govern participation by U.S. companies and their senior employees in the U.K.'s Brexit campaign. Now we examine lobbying across the EU with a wide lens.

Allen & Overy’s Weekly Election Series: The Other Election: What Brexit Means for U.S. Companies

Corporate Counsel (May 25, 2016)

Charles Borden, Maeve Hanna and Sam Brown

In this article, the eleventh of Allen & Overy’s weekly columns on political law issues designed to help in-house legal and compliance personnel manage risks, we turn to the U.K. referendum and the rules that apply to U.S. companies interested in being involved in the debate. U.K. election laws permit companies and their senior employees to play a role in the referendum, either by contributing to one of the campaign groups that have been established to contest the vote, or by taking a public stand on the issue of “Brexit” (British exit from the EU). Doing so, however, implicates complex U,K. campaign finance laws, which are wide-ranging and structured very differently than equivalent U.S. regimes.

Allen & Overy’s Weekly Election Series: The Wide World of PACs

Corporate Counsel (May 11, 2016)

Charles Borden, Claire Rajan

In this article, the tenth of Allen & Overy’s weekly coverage of political law issues designed to help in-house legal and compliance personnel, we briefly describe the different types of PACs and similar political organizations, and the rules that govern contributions to each type of entity. Simply put, an effective political law compliance program requires counsel to “know the recipient” of a proposed political contribution and understand the different requirements and issues raised by contributions to each type of PAC (or similar organization). Confusion over the actual recipient of a contribution, and failure to fully appreciate the variation in legal and reputational risk between different entities, can give rise to compliance breakdowns.

Allen & Overy’s Weekly Election Series: Where Is the Line between Politics as Usual and Corruption?

Corporate Counsel (May 4, 2016)

Charles Borden, Claire Rajan

In this article, we address the question of when a gift become a bribe, the focus of McDonnell v. U.S., the case involving the criminal prosecution of former Virginia Governor Bob McDonnell that was argued before the U.S. Supreme Court in April. We discuss the details of the case, the circumstances under which gifts to public officials can create criminal liability, and offer tips for corporate compliance programs.

Election 2016: “Pay-to-Play” Considerations for Investment Advisers Compliance Corner, Investment Adviser Association (May 2016)

Charles Borden, Samuel Brown

In this article, we address the key pay-to-play compliance issues for the 2016 election. We begin with a brief overview of relevant pay-to- play laws, including the key prohibitions imposed by SEC Rule 206(4)-5. We then identify the most relevant campaign finance trends, and describe the range of political financing vehicles. Lastly, we suggest potential compliance approaches for covered advisers to deal

Allen & Overy’s Weekly Election Series: Questions and Answers About Super PACs and Corporate Compliance Risks

Corporate Counsel (Apr. 20, 2016)

Charles Borden, Claire Rajan, Jana Steenholdt

In this article, the eighth of Allen & Overy’s weekly coverage of political law issues designed to help in-house legal and compliance personnel, we answer some frequently asked questions about super PACs, corporate and super PAC activities in the 2016 presidential elections and the implications for corporate risk exposure and compliance programs.

Allen & Overy’s Weekly Election Series: Another Campaign Finance No-No: Foreign Contributions

Corporate Counsel (Apr. 13, 2016)

Charles Borden, Claire Rajan, Kate Wooler

In this article, the seventh of Allen & Overy’s weekly coverage of political law issues designed to help in-house legal and compliance personnel, we address the legal and reputational risks of engagement in U.S. elections for foreign individuals and corporations. We provide examples of enforcement matters and discuss ways for corporations to manage the risks.

Allen & Overy’s Weekly Election Series: The Big No-No: Campaign Money Laundering

Corporate Counsel (Apr. 6, 2016) Charles Borden, Claire Rajan, Kate Wooler

In this article, the sixth of Allen & Overy’s weekly coverage of political law issues designed to help in-house legal and compliance personnel manage risks, looks at campaign money laundering. To evade restrictions on contributions, straw donor or campaign money laundering schemes are sometimes created to hide the true source of a contribution. In addition, even where contributions are unlimited, such as a contribution to a Super PAC, some contributors seek to evade reporting obligations by using a corporate LLC as a straw donor.

Allen & Overy’s Weekly Election Series: Key Compliance Issues in Operating a Corporate PAC

Corporate Counsel (Mar. 30, 2016)

Charles Borden, Claire Rajan, Kate Wooler

Electoral engagement is critical for the bottom line of many corporations. And the most common way of participating in the process is through the creation of a political action committee (PAC). Corporate PACs are playing a growing role in politics, raising $352 million in the 2012 presidential cycle and $378 million in the 2014 mid-term cycle. In 2015 alone, the year before any election is held, corporate PACs raised over $168 million, and fundraising is likely to increase as the 2016 general election approaches.

Allen & Overy’s Weekly Election Series: The Presidential Candidates on Campaign Finance Reform

Corporate Counsel (Mar. 23, 2016)

Charles Borden, Claire Rajan, Daniel Holman

This article looks at campaign finance reform, a subject that is not typically high on the presidential campaign agenda. However, the 2016 election has been unusual in this respect, as candidates have raised the subject and voiced concerns about the existing system to an unprecedented degree. Political donors, government contractors and anyone with an interest in electoral economics should take notice of this phenomenon and the candidates’ proposals for reform.

Allen & Overy’s Weekly Election Series: Brand Risks: Trump, Miss USA and Jose Andres

Corporate Counsel

(Mar. 16, 2016)

Charles Borden, Claire Rajan, Daniel Holman

In this article, the third of Allen & Overy’s weekly coverage of political law issues designed to help in-house legal and compliance personnel manage risks, we look at an issue that has been prominent throughout the presidential primaries this year. Election season carries a unique set of reputational risks for companies. Legal and reputational consequences can arise out of the present and past business relationships of the candidates themselves, or a candidate can bring a company into the campaign discussion in ways that may harm the company’s brand or business.

Allen & Overy’s Weekly Election Series: What Your Company Can Do—and Should Not Do—During the Election Campaign

Corporate Counsel (Mar. 9, 2016)

Charles Borden, Claire Rajan

In this article, which is the second of Allen & Overy’s weekly coverage of political law issues designed to help in-house legal and compliance personnel manage risks, we discuss the three most popular methods of campaign involvement at the federal level. We also delve into the various prohibitions that apply to corporate political activity, and explain how a company can find itself in violation of the law due to the activities of its employees, even if those activities were engaged in without the company’s knowledge or permission.

Allen & Overy’s Weekly Election Series

Corporate Counsel (Mar. 2, 2016)

Charles Borden, Claire Rajan

From now through Election Day, Allen & Overy’s political law team will be providing a series of articles on political law issues designed to help in-house legal and compliance personnel assess and manage their political law risks, with a particular emphasis on the issues most likely to occur in this election cycle.

Lobbying Laws in Europe: An Update Compliance Corner

Public Affairs Council (Mar. 2016)

Charles Borden, Samuel Brown, Valentijn De Boe

This column focuses on two recent lobbying law developments in Europe. The first is the European Commission’s announcement of public consultation on proposed changes to the EU Transparency Register. The second is the announcement of Spain’s first nationwide voluntary lobby regulation registry.

Brexit: Corporate Communications And UK Election Laws Law360 (Feb. 18, 2016)

Charles Borden, Samuel Brown, Russell Butland

Later this year, British and Northern Irish voters will go to the polls to decide whether or not to remain in the European Union. This important decision could have significant consequences for the British economy and firms that do business in the U.K., so it is not surprising that U.K. firms and multinational companies are increasingly voicing their opinion on what has been dubbed “Brexit.” Communicating about the referendum, however, can implicate U.K. campaign finance laws, and the campaign finance rules that apply to the Brexit referendum differ from both equivalent U.S. regimes and from the rules that apply during other U.K. elections. This article provides some background on the Brexit referendum, gives a brief overview of the relevant campaign finance rules, and describes how companies can get involved in the referendum debate while staying on the right side of the relevant legal requirements.

The "Brexit" Referendum and UK Election Laws

Compliance Corner, Public Affairs Council (Jan. 2016)

Charles Borden, Samuel Brown This article addresses considerations to keep in mind when developing a corporate strategy around the “Brexit” referendum. While the date for the “Brexit” referendum has yet to be definitively set, there are indications it will be held in late 2016. The vote is likely to be hotly contested, with some recent polls showing a narrow majority of voters in favor of exiting from the European Union. Brexit is a significant issue for companies that do business in the UK and the rest of Europe. A recent survey of British firms by the Institute of Chartered Secretaries and Administrators (ICSA) and the Financial Times found that 70 percent of respondents expected either “some” or “significant” damage to their business if the United Kingdom leaves the EU.

$12M SEC Penalty Demonstrates Focus On Pay-To-Play

Law360 (Jan. 15, 2016)

Charles Borden, Bill White, Claire Rajan

Our team published an article in Law360 on the U.S. Securities and Exchange Commission's multi-million dollar settlement with State Street Bank and Trust Co. The $12 million in penalties and disgorgement are related to a scheme to secure contracts with Ohio retirement funds by funneling campaign contributions to the Ohio state treasurer. The article describes a number of national trends with respect to pay-to-play enforcement at all levels of government and provides some important lessons for corporate political activity compliance.

Tips for Navigating Global Compliance Systems Without Breaking the Rules

Compliance Corner, Public Affairs Council (Nov. 2015)

Charles Borden, Samuel Brown The globalization of the public affairs industry has many implications for compliance, as the rise in global public affairs activity has been matched by a rise in global public affairs regulation. This trend is exemplified by the expansion in lobbying frameworks over the past few years — particularly in Europe but also in Canada and Latin America. The expansion of lobbying laws poses a significant compliance challenge for global public affairs actors — including both in-house public affairs functions and public affairs firms. This article offers compliance professionals a few tips to keep in mind when designing or reviewing a global lobbying compliance system.

Ethics Regulation of Government Contractors

Risk & Regulation, Centre for Analysis of Risk and Regulation (Winter 2015)

Charles Borden, Daniel Holman (With Robert Rizzi of Steptoe & Johnston LLP)

Members of our team published an article on the regulation of government contractors and the evolution of public ethics regimes. While the value and variety of government activities performed by contractors have grown substantially over recent decades, rules governing financial conflicts of interests and other ethics concerns have yet to adapt this new state of affairs. As a result, contractors may increasingly be found in roles traditionally performed by civil servants without being subject to the same ethics safeguards. While especially pronounced in the U.S., this mismatch in the regulation of government contractors and public servants is also an issue in the UK and other jurisdictions.

Pay to Play

OTC Derivatives Regulation Under Dodd-Frank: A Guide to Registration, Reporting, Business Conduct, and Clearing (2015)

Charles Borden

Charles Borden contributed a chapter on pay to play to the 2015 Edition of OTC Derivatives Regulation Under Dodd-Frank: A Guide to Registration, Reporting, Business Conduct, and Clearing. The chapter, co-written with Lee Michel, the Chief Counsel for Global Political Law at JPMorgan Chase & Co., addresses the application of the impact of the pay to play rule established by the U.S. Commodity Futures Trading Commission ("CFTC") on swap dealers.

The SEC Pay-to-Play Rule: Lessons Learned from the Exemptive Relief Process

The Investment Lawyer (May 2015)

Charles Borden, Samuel Brown, Claire Rajan

In a recent article published in the Investment Lawyer, Charles Borden, Samuel Brown and Claire Rajan provide an overview of the state of play on Rule 206(4)-5 compliance for the 2016 election cycle, with a particular focus on the SEC's treatment of the exemptive relief applications. They also provide investment advisers and exempt reporting advisers with concrete compliance recommendations, with a focus on steps to take both when designing a compliance program and when responding to a potential Rule 204(4)-5 violation.

Lobbying The EU: New Requirements For A 'Voluntary' Regime

Law360 (May 19, 2015)

Charles Borden, Samuel Brown, Valentijn De Boe In an article published on May 19, 2015 by Law360, a joint Allen & Overy U.S.-EU political law team provides practical guidance on how U.S. companies and individuals can comply with the Commission’s new lobbying policy, with a focus on when lobbying registration may be necessary and tips for navigating the registration process.