Following up on last week’s post, we wanted to highlight the “pay-to-play” provisions in D.C. Mayor Vincent Gray’s proposal to amend the District’s campaign finance laws.  The legislation is undergoing a public comment period until September 17th, and will then be sent to the D.C. Council. 

In its simplest form, the proposal is hard to oppose: companies and groups with contracts or grants with the District in excess of $250,000 a year should not make contributions to politicians who can influence the award of contracts or grants.  Contractors should swear at the time they win a contract that they have not violated the law, and have an ongoing obligation to report violations if they occur.  Sounds good so far. 

The problem with the legislation, as with many pay-to-play laws, is that the effort to block real and imagined paths of circumvention leave well-meaning companies (and in this case, grant recipients) and the officers, directors, and their immediate family members, in a compliance minefield.  For example, how many companies could imagine a charitable contribution to a D.C. based children’s group might result in debarment from contracting with the District of Columbia for four years?  It could if the Mayor’s wife ran the group.  So here are some of the details of the proposal.

Who will not be able to contribute or solicit contributions?  Entities that contract with the District to provide goods, services or equipment or to sell property, and entities that receive grants from the District, if the contracts or grants exceed $250,000 a year.  It also covers contributions from “related entities” (subsidiaries, PACs, trusts, etc.), persons (officers and directors and persons who hold equivalent positions) and those who “control” the contractor.  “Immediate family members” of covered persons may make contributions of up to$300 per election. 

Who will not be able to receive covered contributions?  The list is long.  Officeholders and candidates who are or “could be involved in influencing the award” of the contract or grant, and political committees associated with them.  Does any elected city official not meet the “could be involved in influencing” test?  Exploratory committees, inaugural committees, legal defense funds, constituent service funds, transition committees and any other organization “controlled, operated or managed by an elected official” are covered.  So are party committees.  Organizations controlled by immediate family members of a city politician who can influence contracting are also prohibited recipients. 

Penalties are stiff.  The District can deem violations a breach of an existing contract or grant.  There is also the risk of debarment for up to four years, as well as civil and criminal penalties. 

If adopted, those who do business with the District will need to adjust their compliance programs to protect against some of the sweeping language in the current bill.  We will continue to follow this proposal.

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Photo of Robert Lenhard Robert Lenhard

Robert Lenhard has helped guide decision makers in corporations, trade associations, and advocacy groups on complying with the laws regulating political activity for over 20 years. As a senior member of the firm’s Election and Political Law Practice Group, he provides compliance advice…

Robert Lenhard has helped guide decision makers in corporations, trade associations, and advocacy groups on complying with the laws regulating political activity for over 20 years. As a senior member of the firm’s Election and Political Law Practice Group, he provides compliance advice relating to federal and state campaign finance, lobbying, pay-to-play, and government ethics laws. As an advocate, counselor, and regulator, Mr. Lenhard brings a depth of experience on matters that involve legal as well as political risk.

Bob led Covington’s representation of the Biden for President campaign, the Super PAC supporting President Obama’s re-election, as well as several prominent professional sports leagues, pharmaceutical manufacturers, technology companies, advocacy groups, and trade associations.

Prior to joining the firm in 2008, Mr. Lenhard served as Chairman of the Federal Election Commission (FEC) in 2007 and Vice Chairman of the agency in 2006, during which time the agency handled over 10 major rulemakings, had among its most productive years in enforcement and audit, and adopted several reforms to the enforcement process. Mr. Lenhard also led the Presidential Transition Team that reviewed the FEC for the incoming Obama administration in 2008-2009.

Mr. Lenhard is frequently quoted in the press, has lectured at major law schools, and Before his service to the FEC, Mr. Lenhard provided legal advice to labor organizations active in the political process at the federal, state, and local levels. Mr. Lenhard also was involved in litigation in the Florida trial and appellate courts over the counting of absentee ballots in Seminole County, Florida in 2000.

Robert Lenhard is a member of the firm’s Election and Political Law Practice Group and advises corporations, trade associations, not-for-profit organizations, and high-net-worth individuals on compliance with federal and state campaign finance, lobbying, and government ethics laws.

Mr. Lenhard routinely assists clients in establishing and operating federal and state PACs, compliance programs associated with campaign finance and pay-to-play laws; advises advocacy groups and their donors; conducts compliance trainings and audits of federal and state lobbying and political programs; and counsels clients on compliance with congressional gift and travel rules. According to Chambers, sources report: “He is strategic and always sees the big picture. He is a great person who provides excellent non-legal counsel as well.”