1. FEC Campaign Finance Compliance
Probably the most important aspect of operating a modern political campaign is adhering to campaign finance obligations. The Federal Election Commission has strict contribution limits, reporting requirements, and imposes large civil penalties for those who violate campaign finance laws. With more than $6 billion spent in the 2012 election cycle, the campaign finance system is growing, which has increased the scrutiny from government regulators and watchdog groups.
The professionals in the Arent Fox Political Law practice have over 25 years experience handling all facets of campaign finance. Along with a campaign finance manager and compliance specialists, Arent Fox is able to uniquely assist in all legal and operational aspects of campaign finance. From processing contributions, to donor correspondence, to filing FEC and IRS reports, the Arent Fox team understands the world of campaign finance.
2. Organizing and Operating a Political Committee
Arent Fox attorneys and personnel are able to assist political committees, candidates, non-profits and large corporations in organizing and operating political committees at the national, state, and local level. Through their intimate knowledge of FEC, IRS, FCC, and state and local campaign laws, Arent Fox can guide political committees through the complicated and nuanced system of organizing and operating a political committee.
This includes filing a Statement of Organization, Statement of Candidacy, incorporation of the organization, setting up a board of directors, acquiring insurance for the committee, setting up bank accounts, devising systems for receipts and disbursements, filing required FEC disclosure reports, handling payroll for committee staff, and representing the committee on enforcement matters which may arise. We are able to provide full back-office support for committees so that they can run high quality political campaigns and advocate for issues at all levels of the government.
Arent Fox even has experience in developing fundraising strategies to assist committees in maximizing their contributions in a cost-effective way.
Arent Fox professionals have helped companies design and implement internal political compliance and training programs. These programs help train employees and executives in large corporations to comply with lobbying, ethics, and campaign finance laws such as personal contribution limits, federal gift rules, and lobbying disclosure triggers.
Because the campaign finance field is growing, Arent Fox professionals are able to give political committees a competitive advantage by exploring creative new ways to raise money for political campaigns. Through FEC Advisory Opinions, Arent Fox has helped political committees secure FEC approval for new and unique fundraising streams that have resulted in millions of dollars in campaign contributions.
3. Election Rules for Ballot Access, Voting and Recounts.
For Congressional and state candidates, nothing is more important than ensuring that a candidate is on the ballot. Voting must be done fairly and clearly, and any recounts must be vigorously perused.
Arent Fox has experience in the largest recount matter in recent history: Bush v. Gore. Thor Horne successfully litigated various key and contentious issues in that election contest and can accomplish the same in any other state across the United States.
Ballot access through the petition process and election-day activities has also proven to be crucial to successful candidate committees. Contesting signatures, voter-suppression allegations, ballot design and the counting process must be closely monitored for legal compliance. That’s why Arent Fox often sets up “war rooms” on election day to oversee the numerous election monitors across a state and provide 24 hour litigation support for candidate committees.
4. Nonprofits In Politics
Arent Fox assists in the formation and operation of many types of tax-exempt entities, including issue advocacy groups, trade associations, and political organizations.
We advise our nonprofit clients on corporate and tax matters, compliance with state registration requirements, and obtaining federal tax exemptions. Many of our tax-exempt clients are subject to regulation from state and local campaign, corporate, and tax agencies as well as the FEC and IRS.
5. Super PACs
Following the Citizens United and SpeechNow decisions, Arent Fox created one of the first Super PACs and single-member 527 political organizations, and quickly established several other Super PACs. Our approach is unique in that we typically incorporate Super PACs as nonprofit organizations in Delaware to protect the officers and directors from liability. As with our overall campaign finance and operations practices, we are able to handle all financial transactions a Super PAC needs. We are able to deposit contributions coming in to the PAC, as well as wiring hundreds of thousands of dollars in a short amount of time.
Arent Fox has created an in-depth checklist that covers every step in the process, including incorporating in Delaware, reserving a web domain, establishing a P.O. Box, establishing an Employer ID Number (EIN), setting up a bank account, filing documents, serving as incorporator, drafting bylaws and resolutions, and often serving as Treasurer or an initial member of the committee’s Board of Directors.
6. Innovation in Fundraising
a. Texting
In 2012, Arent Fox created the ability for political committees to receive contributions from texted messages. Our victory over turned a decision by the FEC which previously prohibited the practice. The approved technology was immediately used by the Obama for America presidential campaign, which received millions of dollars in texted contributions.
The ability to make a political contribution via text messaging was a product of Craig Engle and Brett Kappel winning a complicated, and at times contentious, Advisory Opinion Request at the FEC. Craig and Brett were able to marshal the support of the Obama and Romney campaigns, plus a dozen liberal and conservative groups, all of whom wanted the American public to take advantage of this new ability to contribute through text messaging.
It is our opinion that in the future every campaign must have a short-code to receive contributions via text message. Just as with contributions over the Internet, soon every credible campaign must have the ability to accept texted contributions. No other firm is as well-qualified to guide you through this process
b. Sweepstakes
Arent Fox has a well-established contests, sweepstakes and promotion management practice encompassing all aspects of running a fundraising sweepstakes or contest, from initial conception to post-promotion activities. Political committees are more frequently using sweepstakes as a way to attract contributions and Arent Fox’s professionals can assist in the fundraising, political communications, and legal aspects of running these promotions.
7. Lobbying Compliance and Conflicts of Interest
The Lobbying Disclosure Act of 1995 imposes extensive compliance requirements on corporations, trade associations, and individuals who communicate with Congress, the Administration, and most government agencies. We assist clients, including defense contractors, with developing comprehensive compliance systems. In addition to the federal rules, many corporations and trade associations must comply with widely divergent lobbying rules in various states. Our political law professionals track changes in state laws and assist clients with compliance and reporting.
Equally important is our counseling on the detailed federal gift rules, which regulate what may be given to Members of Congress, their staff, and employees in the executive branch. This is especially important given recent court decisions on unlawful actions which created a quid pro quo appearance of corruption.
8. Congressional Investigations, the FEC, IRS and White Collar Prosecutions
The increased partisanship in Congress, plus the fact that many Congressional Committees are stepping up their investigations of the Administration and industries, means targets must have effective defense counsel with recent and relevant experience in these stressful situations.
A congressional investigation is not litigation. There are different rules and procedures. Congressional hearings may be highly contentious and Congress often refers their staff recommendations to the Justice Department or an agency’s Inspector General. Simply put: a congressional investigation requires a congressionally experienced defense attorney.
Investigations by the FEC and IRS are now becoming more intrusive, lengthy, and can subject the target to civil and criminal penalties. Defending these matters does not require litigation experience, it requires attorneys with FEC experience that have successfully limited agency subpoenas, and prevented administrative findings against the political committee and often the treasurer and candidate personally.
Brett Kappel’s resume contains a lengthy list of investigations he has successfully defended, especially against Presidential committees. His experience before the agency will help a committee work through the process and minimize adverse findings and civil penalties.
Arent Fox’s White Collar and Investigations Practice Group offers unparalleled experience in the high-stakes representation of corporations, political committees, and other business entities, including executives, managers, professionals, and public officials.
In today’s ever increasingly regulated political world, Arent Fox can defend sensitive internal investigations; provide compliance and ethics training; and guide you through complex governmental audits and investigations. We handle all stages of a government investigation including parallel civil and criminal proceedings involving multiple agencies and across multiple jurisdictions. Our team members include many experienced and highly-skilled former federal and state prosecutors, regulators, and governmental enforcement officials.
We regularly represent clients before the FEC, SEC, IRS, FTC, FCC, United States Attorney’s offices, the US Department of Justice, State Attorneys General, local District Attorneys, Congressional Committees, and grand jury investigations. Thor Hearne, Mark Radke, and Peter Unger are our especially experienced litigators and can help your organization defend yourself in the political arena.
The same holds true for Craig Engle and the Political Law Practice group before the IRS. With the passage of Citizens United and SpeechNow, there has been an explosion in the number of political committee filings and applications by charitable organizations before the Internal Revenue Service. All of these submissions, however, are not approved. Accordingly, it is important to have experienced counsel that can represent your committee before the IRS with a minimal amount of contention.
For example, the emerging enforcement of the IRS “major-purpose” test and attempts to compel the disclosure of donors (which is often not required) also requires counsel with IRS experience.
9. Broadcast Communications, False Advertising, and Libel
It is estimated that there were over 1 million political commercials broadcast in the last election cycle. Each one of them is subject to FEC oversight, strict disclaimer requirements, and charges of libel and false advertising.
The Arent Fox Political Law Practice is one of the few firms in Washington that has successfully pulled false or defamatory advertisements off the air. This “take-down practice” involves developing a grid to factually refute the statements, contacting television stations managers and their attorneys, negotiating language changes, and often the complete removal of an advertisement off-the-air.
In addition to prosecuting these false advertising claims, Arent Fox often negotiates the political committee’s contracts with their media buyers and production company. Media buying is the largest expense every political committee will face. It is important that the contractor’s commission is fair, the advertisements are accurately placed, and that an accounting occurs at the end of the campaign to ensure the committee was not over-charged for these services.
In sum: Arent Fox will help negotiate and approve your advertisements and media-buying contracts, and ensure proper amounts are wired to these companies, so the activity can be audited for compliance.
10. Litigating Your Rights
Just because there are myriad political regulations doesn’t mean they are all constitutional or are being accurately applied. Sometimes a client is motivated to challenge these laws to test their compatibility with First Amendment precedent.
Arent Fox can help you conceive and advocate judicial action that challenges election laws you believe may restrict your fundamental rights. Election law has changed dramatically over the past 38 years from Buckely v. Valeo to Citizens United. These challenges, however, must be carefully crafted to avoid creating precedent (and expense) that is contrary to your point of view or because the position is squarely contrary to existing precedent.
That is why the Arent Fox Practice Group approaches the law with Innovation with Integrity. When litigating a challenge to the law, both are extremely necessary and are always provided by the firm’s advocates.
