Week of March 14, 2016

Super PACs, Not So Super Anymore | Unofficially Official Nonprofit Organizations | Anyone But Trump, Continued | No More Free Rides for “Ride Along” Lobbyists | More Anonymous Giving from LLCs

SUPER PACs, NOT SO SUPER ANYMORE.  Earlier this cycle, as pundits were celebrating the Great Super PAC flameout of 2016, I half-wrote but didn’t finish a blog post titled, “Just Wait.”  My thesis was that the real power of Super PACs would become evident in March and April, when the political playing field would expand beyond the initial run from Iowa to New Hampshire, South Carolina and Florida, and paid advertising could begin to move the needle in large, winner-take-all states.  Now it’s clear–despite what $30M in negative Super PAC ads might have done to Marco Rubio–that Donald Trump is Super PAC kryptonite.  (At least until the General Election, when the national media will withdraw its unprecedented in-kind support from his campaign and subject him to the same rules it applies to all other candidates.)

+ Super PACs built a wall around Florida, and Trump destroyed it | The Center for Public Integrity – John Dunbar & Caty Zuvich

+ Trump, Sanders deflate Super PACs in unpredictable 2016 race | AP – Julie Bykowicz

UNOFFICIALLY OFFICIAL NONPROFIT ORGANIZATIONS.  Elected officials sometimes form non-profit organizations to advance their policy agendas–and by extension, their political interests–a practice that is equal parts controversial and effective.  This week, faced with claims of conflicts-of-interests and calls for investigations, New York Mayor Bill de Blasio became the latest politician to shut down his “official” non-profit–which had received over $1 million in donations to support the Mayor’s universal pre-Kindergarten and afforable housing proposals–claiming, “The work is done.”

+ Facing criticism, NYC mayor to shutter nonprofit group | AP – Jonathan Lemire

+ The mayor’s nonprofit that’s not really the mayor’s nonprofit | Voice of San Diego – Liam Dillon

ANYONE BUT TRUMP, CONTINUED.  As we noted in last week’s digest, the GOP is in the midst of an extended, national brainstorm over how to keep Donald Trump from leaving the Republican National Convention in Cleveland as the party’s nominee–or, if he does, how to block him from winning 270 electoral votes in November.

+ The Party still decides | The New York Times – Ross Douthat

+ GOP Official: The party chooses the nominee, not the voters | The Hill – Harper Neidig

+ How to steal a nomination from Donald Trump | Bloomberg Politics – Sasha Issenberg

+ RNC Rules: Insiders speak out on contested convention | NBC News – Ari Melber

+ How an obscure committee could decide the GOP nomination | Politico – Kyle Cheney

+ GOP effort to block Trump may lead to a morass | The New York Times – Al Hunt

+ Top conservatives gather to plot third-party run against Trump | Politico – Shane Goldmacher

+ The Electoral College could still stop Trump, even if he wins the popular vote | The Washington Post – Derek Muller

(Also, an interesting debate is unfolding about whether – and with what – RNC convention delegates can be bribed.  See here and here.)

I SEE YOU, UNREGISTERED LOBBYIST, AND I KNOW WHAT YOU’RE DOING.  One of the great urban legends in lobbying regulation is the so-called “lobbyist shield” doctrine.  In-house government affairs employees often think that, as long as a registered lobbyist accompanies them to meetings with elected officials, they don’t have to register as lobbyists themselves and report their compensation, expenditures and activities.  In fact, that is rarely the case.  This week, California–one of the few states that permitted “ride along” lobbying–changed its law to prohibit it.

Ethics agency changes loophole allowing advocates to avoid registering as lobbyists | Los Angeles Times – Patrick McGreevy

YOU STILL CAN’T SEE ME.  Updating last week’s digest, a new Washington Post investigation finds growing use of limited liability companies to make large political contributions–a practice which shields the identity of the donor or donors who capitalized the LLC.  Even still, a New York judge this week dismissed a lawsuit challenging a provision of that state’s campaign finance law that expressly permits LLCs to make political contributions, and to do so at higher individual limits (up to $150,000 per year, versus $5,000 per year for corporate contributions) and without disclosing their funding sources.

(I still think it’s only a matter of time until a state regulator tags one of these LLCs as a political committee–and penalizes it for failing to register as a PAC, failing to report, and making excessive contributions.)


About the Political Law Digest

The Political Law Digest is a weekly review of important stories and significant developments in campaign finance, election law, lobbyist regulation and government ethics – compiled by Chris Ashby and the political activity lawyers at Ashby Law.  To subscribe, or to submit a story, email Kaitlin@Ashby-Law.com.


Week of March 7, 2016

FEC deadlocks on LLC donor disclosure | As Trump approaches 1237, Republicans examining convention rules, independent bids | NY seeks to require public affairs strategists to register as lobbyists | A war over voting laws rages in North Carolina


YOU CAN’T SEE ME.  The FEC deadlocked on the question of whether an individual may make, and whether a super PAC may accept, a contribution through a limited liability company without disclosing the donor’s identity. The controversial technique is used – perhaps with increasing frequency – effectively to anonymize a donor on the super PAC’s FEC report – the PAC reports a contribution from the LLC, but doesn’t reveal who funded the LLC in the first instance. Critics complain that this is an illegal “contribution in the name of another” – a.k.a. a “straw donor.” I have argued that using an LLC to hide donors is so 2012, that the FEC that deadlocked on this issue this week may not be the same FEC that receives the same complaint a year or two from now, and that the far better use of an LLC is as an exclusive vendor to a single client, or to a very small group of clients sharing common interests.

+ The FEC just made it easier for super PAC donors to hide their identities | The Washington Post – Matea Gold


ANYONE BUT TRUMP.  The Republican Party continues to scheme up ways to nominate anyone but Trump, but as Trump marches closer and closer to the magic number of 1237 delegates, anything and everything is open for discussion, including denying him victory in the General Election. How about an independent bid by Condoleeza Rice? Maybe a deadlocked House allowing House Speaker Paul Ryan to succeed to the presidency? (The latter scenario became even less plausible when Michael Bloomberg pulled the plug on his pre-campaign.) Now, delegate selection and sore loser laws are where the action is.

+ Major GOP donors are turning their hopes toward a contested convention | BuzzFeed – Tarini Parti

+ Seeing Trump as vulnerable, GOP elites now eye a contested convention | The Washington Post – Phillip Rucker & Robert Costa

+ How Trump could be blocked at a contested Republican convention | The New York Times – Larry Buchanan & Alicia Parlapiano

+ GOP pollster: Independent candidate unlikely to win | Politico – Daniel Lipman


WHEN LOBBYING ISN’T LOBBYING.  Five public relations firms this week filed a lawsuit challenging a new New York Joint Commission on Public Ethics rule defining lobbying to include such activities as issuing press releases or other public statements on behalf of a client, pitching op-eds for publication, and other traditional forms of media and public relations, if the communication takes a position on an issue, attempts to influence a public official’s decision, or results in the introduction, passage or defeat of legislation.  The move by JCOPE opens a new front in a nationwide push that is seeking to expand lobbyist registration requirements to cover non-lobbying activities such as sales of goods and services to government agencies and political intelligence gathering.

A Solution in Search of a Problem: New York Defines PR Consultants as Lobbyists | PR Week – Michael Lasky


AT WAR OVER VOTING.  “States around the nation are embroiled in legal battles over voting requirements, district lines and the rules governing elections. But North Carolina feels like the center. It is a place where hyperpartisanship, the focus on voting rules after the disputed election of President George W. Bush in 2000 and the Supreme Court’s dismantling of a crucial section of the Voting Rights Act have created an incessant state of combat over the way elections are conducted.”

+ North Carolina exemplifies national battles over voting laws | The New York Times – Richard Fausset



About the Political Law Digest

The Political Law Digest is a weekly review of important stories and significant developments in campaign finance, election law, lobbyist regulation and government ethics – compiled by Chris Ashby and the political activity lawyers at Ashby Law.  To subscribe, or to submit a story, email Kaitlin@Ashby-Law.com.


Size Matters

A while back, I had lunch with another election lawyer. Ashby Law was two or three years old at the time, and he was checking in to see how I was doing as a solo lawyer. “When we got your launch announcement,” he said, “we all thought, ‘Wow, it will be interesting to see how this goes.'”

Ashby Law will turn five in August. I’m still going. And with the addition of two new attorneys and one full-time professional staff member, the firm is growing.

This Winter, Jon Waclawski joined the firm as a partner. Last Fall, Kate Rennolds joined the firm as an associate. Kaitlin Murphy is our Director of Operations.

Together, we have deep experience on the business side of politics. We worked on campaigns and for politically-active nonprofit organizations before entering the legal field, so we’ve been the client before and we understand the environment in which our advice will play out. That experience and understanding is the foundation of our approach to the practice of political law—strategic, creative, practical.  And as a team of four, we are better leveraged, which means that we can serve our clients more efficiently and effectively.

When I began the firm in 2011, I had two anchor clients. Today, our clients include top tier presidential candidates and some of the most important statewide officeholders in America, the PACs and lobbyists of Fortune 500 companies and multi-national corporations, one of the largest Super PACs in the country, nonprofit organizations that are registering voters and making independent expenditures, impact donors to candidates, parties, PACs and causes, and innovative companies that are changing the way campaigns are run and won.

We are grateful for the trust and confidence of our clients, and for the support of our friends and referral sources. We will keep working hard and smart to justify it. And we are grateful for the continued opportunity to help our clients win elections, change law and policy and move the needle of public opinion during this exciting and important era of American politics.