Contributions-for-Pardons Opinion Reveals DOJ Efforts, and Challenges, Prosecuting Lobbying Violations

An opinion by Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia unsealed yesterday has generated much attention for its discussion of contributions-for-pardons allegations in a case that is still largely obscured from public view.  But the underlying offenses at issue in the case also include an alleged “secret lobbying scheme” involving efforts to lobby the White House without registering under the Lobbying Disclosure Act (“LDA”).  Even as redacted, the opinion reveals some interesting nuggets about the Department of Justice’s efforts to prosecute LDA violations, though much is unknown about this case including the facts, the parties, the history, and the relevant evidence.

This appears to be only the second public instance of DOJ conducting a criminal investigation of unregistered lobbying under the LDA, following Jack Abramoff’s guilty plea to that offense in June of this year.  The scarcity of LDA prosecutions is likely due in part to the high bar for criminal LDA prosecution generally, which requires “knowingly and corruptly” failing to comply with the Act.  The Act has civil penalties as well, which have occasionally been levied against particularly egregious violations.

But the opinion reveals another potential challenge to prosecuting LDA violations: registration is only required when the lobbyist spends twenty percent of his or her time for a particular client in any three month period on “lobbying activities” as defined in the LDA, and proving this could be challenging. As described in a footnote to Judge Howell’s opinion, “a prima facie showing of a purported violation of the LDA may be elusive because, as the government concedes,” there was insufficient evidence then available to show the allegedly unregistered lobbyists had reached the twenty percent threshold.  Moreover, the same footnote recognizes that there are nineteen exceptions from registration, including some “broad exceptions” that might apply on further fact-finding.

If this and the Abramoff case are the start of a trend towards more criminal LDA prosecutions, the opinion also reveals some of the challenges DOJ may face going forward.

A Primer for Navigating the Presidential Appointee Vetting and Confirmation Process

With the election over, the process of selecting and vetting individuals to fill the next administration’s key appointed positions is quickly shifting into high gear. For those who are called to serve in such positions, the decision to enter the process may be one of the most important and life-changing decisions they ever make. Accordingly, it is critical for anyone considering an appointed position to understand the vetting process from the start and to consider seeking the advice of experienced vetting counsel.

In this client advisory, we provide a high-level overview of the presidential appointee vetting process, highlighting the top five issues that typically are examined by the lawyers and others who conduct the vetting.

Contribution Limits in Georgia U.S. Senate Run-Off Elections

With control of the U.S. Senate at stake, hundreds of millions of dollars are expected to flow into Georgia over the next two months as voters decide the outcome of two U.S. Senate run-off elections.  Donors seeking to make contributions to support their preferred candidates in these run-offs should be mindful of a variety of restrictions:

  • Each of the Senate campaigns in the run-off may accept contributions of up to $2,800 per individual donor (or $5,600 per couple), even if the donor had previously donated the maximum to the candidate’s primary and/or general election campaigns.
  • The general accounts of the senate campaign arms of the national political party committees—the NRSC and DSCC—may accept $35,500 annually per donor.  Funds in the general accounts may be used to influence the outcome of the run-off elections.  Donors who already made the maximum contributions to the general accounts of the NRSC or DSCC prior to the 2020 general election may not make a further contribution to the general accounts this year.  Such “maxed out” donors may, however, contribute another $35,500 in the opening days of 2021, prior to the January 5, 2021 run-off elections, though donations cannot be earmarked for the Georgia runoffs without potentially exceeding contribution limits.
  • Individuals may contribute $10,000 annually to the federal accounts of the Georgia Republican and Democratic Parties.  Individuals subject to “pay-to-play” rule restrictions, such as those in the financial services industry, should consult with their compliance departments prior to making or soliciting such contributions.

In addition to the campaigns and political party committees described above, we expect many other groups to be active in the Georgia run-off elections, including Super PACs, “joint fundraising committees” that raise funds for multiple candidates or party committees simultaneously, and 501(c)(4) social welfare organizations.  Because special restrictions may apply to contributions to these groups, donors should first carefully vet these groups for compliance risks and optics and reputational concerns, prior to writing the contribution check or initiating the wire transfer.

Guidelines for Interacting with the Biden-Harris Transition and the Biden Inaugural Committee

With the election over, attention now turns to the transition and the upcoming inauguration of the new Biden-Harris Administration. In this alert, which will be of interest to chief compliance officers and many others across the country, Covington’s Election and Political Law Practice Group provides insight into what promises to be a transition and inauguration like no other. In the alert, we answer key compliance questions regarding the Biden-Harris Transition and the Biden Inaugural Committee.

Guidance Regarding Contributions to Recount and Election Dispute Funds

As both presidential and down-ticket candidates gear up for post-election recounts and related litigation in several states, they and their political parties will be raising new funds to finance these efforts. As with campaign contributions made before the election, there are a variety of rules that apply to contributions to support post-election disputes.

The Federal Election Campaign Act provides that national party committees, including the Democratic National Committee, the Republican National Committee, and their House and Senate campaign committees, may each accept up to $106,500 per year from an individual “to defray expenses incurred with respect to the preparation for and the conduct of election recounts and contests and other legal proceedings.” Multicandidate Political Action Committees (PACs) may give up to $45,000 per year to each of these legal accounts. The contribution limits for the legal accounts are separate from the limits applicable to the national party committees’ general accounts.

A state party committee may accept up to $10,000 per year for its account for federal recounts and election contests, separate from the $10,000 per-year limit for its general federal account. For “recount activities involving Federal races,” state parties may use only these recount funds and their other federal funds.

Additionally, federal candidates may accept up to $2,800 from an individual and $5,000 from a multicandidate PAC per election cycle for recounts and election contests. This limit is in addition to, and separate from, the contribution limits for the primary and general elections. All donations to recount funds must be disclosed by candidates and political party committees on their Federal Election Commission reports.

Note that some candidates may form joint fundraising committees (JFCs) with political party committees in order to raise funds for recount and election dispute efforts, allowing for a single contribution to be made in an amount reflecting the combined contribution limits of the JFC’s various constituent committees. Those making such contributions to JFCs should be aware that if they have already made maximum contributions to the recount funds of one or more of the JFC’s constituent committees, they cannot contribute to those committees again through the JFC.

None of these federally registered political committees may accept corporate funds or funds from foreign nationals. Some campaigns or political party committees may also adopt their own self-imposed restrictions on contributions from other categories of donors.

To the extent outside groups that are not candidate committees, party committees, or JFCs solicit funds with a promise that they will be spent on matters related to recounts and election disputes, clients should seek specific legal advice to ensure that such contributions will not result in any impermissible in-kind contribution to a campaign or party committee or otherwise run afoul of the campaign finance rules.

New Executive Order May Significantly Expand Number of Executive Branch Officials “Covered” Under the Lobbying Disclosure Act

Despite his promises to “drain the swamp,” last week President Trump issued an Executive Order that may inadvertently create a large number of new lobbyists.  The order creates a new category of federal employees who are exempt from competitive service requirements, all of whom may qualify as “covered executive branch officials” under the Lobbying Disclosure Act (LDA), potentially requiring those who communicate with those officials on behalf of a client to register as lobbyists and file reports.

Pursuant to the LDA, an individual who makes two or more “lobbying contacts” with “covered legislative branch officials” or “covered executive branch officials” may be required to register as a lobbyist, if certain other criteria are satisfied.    The definition of “covered executive branch official” includes the President, Vice President, Executive Office of the President employees, certain senior agency officials and senior military officers, and “any officer or employee serving in a position of a confidential, policy-determining, policy-making, or policy-advocating character described in section 7511(b)(2)(B) of title 5, United States Code.”

Section 7511(b)(2)(B), in turn, exempts from civil service rules employees “whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character by . . . the Office of Personnel Management for a position that the Office has excepted from the competitive service.”  This category of covered officials, until now, only referred to appointees to positions listed in “Schedule C” of the Excepted Service.  According to the legislative history of the 1997 amendments to the LDA, “[t]he change to the definition . . . reflects the stated intent by narrowing the statutory reference in the [LDA] to ensure that only ‘Schedule C’ employees are ‘covered executive branch employees.’”  LDA guidance issued by Clerk of the House and Secretary of the Senate also confirms that only Schedule C appointees, and not other categories of Excepted Service appointees, are covered officials under the LDA.

In establishing Schedule F, the order creates, for the first time, a second category of positions of a “confidential or policy-determining character.”  Prior to the President’s order, Schedule C was the only category of Excepted Service appointments that encompassed positions of that nature.  However, under the order, appointees to the newly-created Schedule F will hold “positions of a confidential, policy-determining, policy-making, or policy-advocating character.”  Schedule C and Schedule F are primarily distinguishable not by their responsibilities, but by their tenure: non-career appointees who normally leave office when the President who appointed them leaves office are listed in Schedule C, while career appointees who normally remain in their position when their appointing President’s term ends are listed in Schedule F.

Because the order requires OPM to except Schedule F appointees (“positions of a confidential, policy-determining, policy-making, or policy-advocating character”) from the competitive service,  the Clerk of the U.S. House and Secretary of the Senate might now conclude that employees in Schedule F serve “in a position … of a confidential, policy-determining, policy-making, or policy-advocating character described in section 7511(b)(2)(B),” and are therefore “covered executive branch officials” under the LDA.

The order amends OPM regulations effective immediately, but requires all federal agencies to conduct a review to determine whether existing Schedule A, B, or D positions should be reclassified as Schedule F.  Agencies must complete a “preliminary review” within 90 days of the order, and a “complete review” within 210 days.

Although it is not immediately clear how many career positions could be reclassified as Schedule F, the order could result in the creation of thousands of new covered officials, assuming the Clerk of the House and Secretary of the Senate conclude that Schedule F employees are now covered.  A dramatic expansion of executive branch positions covered by the LDA would presumably result in more individuals meeting the definition of lobbyist, thereby triggering registration for themselves and their employers.  Further, existing lobbying firms and companies that employ lobbyists would now be required to track and report a broader universe of activities including by capturing costs associated with lobbying activities that support contacts with Schedule F officials.

It is not certain that the Clerk of the House or Secretary of the Senate—much less a court—would conclude that new Schedule F appointees would qualify as “covered executive branch officials.”  Schedule F did not exist when the LDA, 1997 LDA amendments, and LDA guidance were adopted, and the legislative history and the LDA guidance issued by the Clerk of the House and Secretary of the Senate expressly state that among Excepted Service appointees, only Schedule C appointees are covered under the LDA.    Thus, there may be some room to challenge the conclusion that all Schedule F appointees are now covered officials.  The future of the order may also depend on the outcome of the upcoming election—Democrats in Congress have expressed a willingness to overturn the order by statute.

How Can Corporations Support the Voting Process?

In the midst of the COVID-19 pandemic, voting in the 2020 general election is likely to look different than we have seen in recent times. Election officials across the country are working through in-person voting and vote-by-mail procedures and individual voters are deciding how best to cast their ballots. At the same time, many corporations are recognizing this unprecedented situation and are asking how they can help support the voting process.

This alert discusses the laws that apply to corporate activity in this area, and highlights some options that corporations can consider.  Covington’s Election and Political Law Group has significant experience in this area and has advised a number of corporations on their plans leading up to the 2020 general election.

Avoiding Straw Donor Issues

While federal campaign finance enforcement priorities can and do shift, prosecutions of “conduit contributions” or “straw donors” have remained steady over the years.  Unlike most of federal campaign finance law, the law around straw donors is stable and well developed, and straw donor prosecutions tend to be straightforward.  The recent media coverage surrounding allegations that Louis DeJoy, the U.S. Postmaster General, participated in a straw donor scheme at his former company highlights the risks of being implicated in such a scheme.

Federal campaign finance law makes it illegal for any person to “make a contribution in the name of another person or knowingly permit his name to be used to effect such a contribution.”  This provision prohibits someone from accepting reimbursement from another person, whether an individual or an organization, for a political contribution and prohibits any person from reimbursing someone else for a political contribution.  Conduit contributions that are made knowingly and willfully and that exceed $10,000 in the aggregate constitute a felony punishable by up to two years of incarceration, and those exceeding $25,000 in the aggregate are punishable by up to five years of incarceration.  Prosecutors also often charge conduit contribution cases under the federal false statements statute as causing a false statement to be made to the Federal Election Commission.  Additionally, almost every state, if not every state, also prohibits conduit contributions in state elections.

Conduit contribution cases generally arise in a few circumstances.  Political contributors may use straw donors to attempt to skirt contribution limits.  This was the case when conservative commentator Dinesh D’Souza pleaded guilty to reimbursing donors for contributions they made to a U.S. Senate candidate.  Foreign nationals prohibited from making contributions to political campaigns may also attempt to make contributions through other people.  Corporate owners or officers may use corporate funds to reimburse employees for political contributions in an attempt to evade the ban on using corporate funds to make political contributions to federal candidates.  Donations to 501(c)(4) social welfare organizations that are passed through to Super PACs can also raise conduit contribution concerns, and state regulators, particularly in California, have fined donors and organizations that have admitted to engaging in such transactions.

Most straw donor schemes are discovered through whistleblower reports or in the course of an investigation into another matter.  In recent years, the Department of Justice has discovered straw donor schemes by reviewing public Federal Election Commission campaign disclosure reports.

The vast majority of straw donor issues for individuals can be prevented by ensuring that an individual makes contributions only out of his or her own funds and does not give or receive reimbursements for political contributions.  Corporations should be aware of potential traps, such as when a government relations employee or contractor seeks reimbursement for a campaign contribution, sometimes characterized as an “entry fee” for a political event, as a business expense.  Corporate entities may also want to consider the following steps to avoid getting caught up in a conduit contribution investigation:

  • Institute robust controls for political engagement using corporate funds;
  • Engage in training to ensure that officers and employees are aware of the prohibitions against reimbursing contributions;
  • Perform a government affairs and political giving compliance audit; and
  • Never tie bonuses or compensation decisions to political giving.


D.C. Circuit’s McGahn Ruling Eliminates Key House Option for Subpoena Enforcement

On Monday, August 31, a panel of the U.S. Court of Appeals for the D.C. Circuit upended more than a decade of lower court precedent and concluded—at least for the moment—that the U.S. House of Representatives may not seek civil enforcement of subpoenas.  In Committee on the Judiciary v. McGahn, the court dismissed the case for lack of a cause of action, after the full D.C. Circuit court, sitting en banc in an earlier appeal in the same case, overruled the same panel when it concluded that the House Judiciary Committee had standing to enforce a subpoena against former White House Counsel Donald McGahn as part of its impeachment inquiry earlier this year.  Unless the en banc D.C. Circuit or the Supreme Court overturns the panel decision, the House is now limited to enforcing its subpoenas through criminal proceedings pursuant to 2 U.S.C. § 192, or exercising its own “inherent contempt” authority.  This week, the House asked the full D.C. Circuit to review the decision en banc.

Until last week’s decision, the House relied on the U.S. District Court for the District of Columbia’s ruling in Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (2008), to seek civil enforcement for its subpoenas.  Unlike the Senate, which has express statutory authority to bring a civil suit to enforce its subpoenas, see 2 U.S.C. §§ 288b, 288d and 28 U.S.C. § 1365, the House, according to the Miers court, “has an implied cause of action derived from Article I to seek a declaratory judgment concerning the exercise of its subpoena power.”

In the new panel decision, Judge Thomas Griffith, joined by Judge Henderson, rejected this reasoning.  The panel concluded that the House lacks any cause of action—under Article I, the “traditional rules of equity,” or the Declaratory Judgment Act—to seek civil enforcement of its subpoenas.   Judge Judith Rogers dissented.

First, the court rejected the argument that the House has inherent power under Article I to seek civil enforcement of a subpoena “in furtherance of its constitutional power of inquiry.”  The majority explained that Congress’s decision to authorize only the Senate—and not the House—to seek civil enforcement of subpoenas, and to exclude suits that involve executive branch assertions of “governmental privilege,” 28 U.S.C. 1365(a), meant that “Congress has declined to authorize suits like the Committee’s twice over.”

Second, the court found that congressional subpoena enforcement was not an exercise of the court’s “traditional equitable powers.” According to the majority, upon adoption of the Federal Rules of Civil Procedure in 1938, federal courts no longer recognized a distinction between courts of law and equity.  Because the House could not point to any subpoena enforcement case prior to the 1970s, the court found that could not “possibly have been traditionally available in courts of equity.”  While “Congress may someday determine that the federal courts should stand ready to enforce legislative subpoenas against executive-branch officials, [] authorizing that remedy ourselves would be ‘incompatible with the democratic and self-depreciating judgment’ that we lack the ‘power to create remedies previously unknown to the equity jurisprudence.’”

Finally, the court rejected the House’s argument that the Declaratory Judgment Act permits it to bring suit to enforce its subpoenas.  The majority explained that the Act “does not itself ‘provide a cause of action’ as the ‘availability of declaratory relief presupposes the existence of a judicially remediable right.’”  Thus, because Article I and the rules of equity do not independently permit the House to enforce a subpoena, the Declaratory Judgment Act does not allow the House to “bootstrap its way into federal court.”

By concluding that the House does not have a cause of action to seek civil enforcement of subpoenas for testimony and documents, the McGahn opinion relegates the House to two much more cumbersome, and much less politically palatable, options.  First, if a witness refuses to testify before the House or a House committee pursuant to a subpoena, the Committee may cite the witness for contempt, and refer the matter to the full House.  If the House issues a contempt citation, pursuant to 2 U.S.C. § 192, the matter is referred to the U.S. Attorney for the District of Columbia for prosecution.  Although this option permits the House to seek to punish recalcitrant witnesses, it does little to compel testimony or document production.  Moreover, the Justice Department has usually declined to prosecute such contempt when it is directed at officials within the executive branch.

Second, the House may exercise its “inherent contempt” power to jail or fine recalcitrant witnesses.  While this option remains technically available, it has not be used since the 1930s, because, according to the Congressional Research Service, the arrest and detention of a witness by Congress is “cumbersome, inefficient, and unseemly.”

Although Congress could empower the House by statute to enforce subpoenas by civil action against any witness—including executive branch officials—that would require assent from the Republican Senate and Presidential approval (or veto override), which is not going to happen in this environment.

Like the earlier decision on standing, the case may be headed to the full D.C. Circuit for consideration, where the full D.C. Circuit will have the opportunity to consider both the arguments presented here and the rationale advanced in Miers.  Covington will continue to monitor these significant developments in congressional subpoena power.

[Updated 10:45 a.m., 9/10/2020]

The FEC Appears to be Exercising its Powers Without a Quorum

Over the past 10 days, the FEC has been quietly exercising authority reserved for when at least four Commissioners vote in favor of an action.  Since July 3, however, the FEC has only had three Commissioners.  This activity raises consequential questions about the FEC’s ability to act without a quorum, and presents important concerns about the Commission’s use of its investigatory and enforcement powers.

On May 19, Trey Trainor was confirmed by the Senate as an FEC Commissioner, restoring a quorum to the agency for the first time since the previous summer.  As a result, the Commission regained the ability to promulgate rules and vote on enforcement matters, among other actions, which require the affirmative vote of four Commissioners.  Then, on June 26, Commissioner Caroline Hunter announced her resignation, effective July 3.  The Commission has been without a quorum since that date.

On August 14, however, the Commission released ten closed enforcement matters; closing an enforcement matter is an act that requires the vote of four Commissioners.  On August 21, the Commission released eight more closed enforcement matters.  In each, former Commissioner Hunter was one of the four authorizing votes.  Among the 18 matters, all but three were reported as having been voted on after her resignation on July 3.

Without a quorum, the Commission appears to be exercising its powers under a dubious legal theory.  To exercise many of its powers, the FEC requires an affirmative vote of at least four Commissioners.  The regulations, however, do not explicitly require those votes to be cast at the same time, and the Commission has a past practice of circulating matters among the Commissioners for a written vote.  In other words, Commissioners Walther, Hunter, and Weintraub could have voted unanimously in a matter before Trainor’s appointment.  If Commissioner Trainor now votes in line with the other three, the FEC seems to be taking the position that this constitutes the requisite fourth vote to exercise any number of the Commission’s powers, even though Hunter is no longer a Commissioner.  Similarly, the FEC may be relying on votes taken during the few weeks between Commissioner Trainor’s confirmation and Commissioner Hunter’s resignation, but formally certified after her departure to take action reserved for when the Commission has four votes.  In the recently released MURs, the FEC appears to be acting under one or both scenarios.

In each of the 18 closed MURs, Commissioners Hunter, Trainor, Walther, and Weintraub voted in favor of closing the matter.  In three—MUR #7011 (HC4President), MUR #7092 (Social Responsible Government), and MUR #7673 (Raul Campillo for City Council District 7 2020)—the Commission voted before Commissioner Hunter’s resignation, when all four voting Commissioners were actually serving as Commissioners.  The certification letter for MUR #7673 was signed on July 1, 2020, when Hunter was still a Commissioner.  As a result, that act appears to be valid.  The certification letter for MUR #7011 and MUR #7092, however, was not signed by the FEC’s Acting Secretary until July 20, seventeen days after Commissioner Hunter had resigned.  In the remaining 15 MURs, the Commission voted between July 15 and July 24, 2020, after Commissioner Hunter had resigned.

Other than MUR #7673, the Commission’s actions are likely unlawful.  In 2019, the Supreme Court heard a challenge to the decision of the Ninth Circuit to issue an en banc majority opinion authored by Judge Reinhardt eleven days after his death.  The Ninth Circuit justified release of the opinion by noting that “the majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”  Rizo v. Yovino, 887 F.3d, 453, 455 (9th Cir. 2018).  The Supreme Court, however, vacated the opinion, finding that a judge cannot exercise “the judicial power of the United States after [] death.”  Yovino v. Rizo, 139 S.Ct. 706, 710 (2019).  To emphasize the point, the Court observed that “federal judges are appointed for life, not for eternity.”  Id.

Any distinction to be made between federal judges and FEC Commissioners only serves to strengthen the argument against the ongoing validity of Commissioner Hunter’s vote after she left the agency in order to establish the necessary four votes.  Unlike federal judges, Commissioners are not appointed for life but for a comparatively diminutive single, six-year term.  The term of appointments for FEC Commissioners suggests that individual Commissioners are not intended to have a lasting impact on the affairs of the agency.  If the efficacy of the vote of a lifetime appointed judge only persists so long as the judge is alive, so too must the vitality of a Commissioner’s vote be limited to the Commissioner’s time at the FEC.

The Yovino analysis suggests that the 15 MURs that were voted on and certified after Commissioner Hunter’s resignation are invalid.  There is a compelling argument that Yovino’s analysis applies with equal force to MURs #7011 and #7092.  While the Commission voted on the two MURs on June 26th, the certification letter was not signed until July 20, after Commissioner Hunter’s resignation.  Executing the certification letter after Commissioner Hunter had left the FEC puts the decision in a situation similar to Judge Reinhardt having cast a vote and authored a majority opinion while alive and serving as a judge, but having the decision vacated because the opinion was filed after he died.

The legal justification for releasing MURs #7011 and #7092 after Commissioner Hunter’s resignation is analogous to the Ninth Circuit’s reasoning in Yovino: “The justification suggested [] is that the votes and opinions in the en banc case were inalterably fixed at least 12 days prior to the date on which the decision was ‘filed,’ entered on the docket, and released to the public.”  Id. at 708.  The Supreme Court, however, rejected this justification as “inconsistent with well-established judicial practice, federal statutory law, and judicial precedent.”  Id.

The FEC’s actions may have implications beyond these MURs.  In May, the Commission reported a backlog of more than three-hundred cases awaiting enforcement decisions.  Among those, nearly one hundred are approaching the five-year statute of limitations. Because on-going enforcement actions are confidential, it is not clear if the FEC is taking the position that Commissioner Hunter’s votes to begin an investigation or proceed in enforcement actions also have a life beyond her tenure at the agency.  Were this to be true, individuals and companies subject to FEC scrutiny should be aware of Yovino’s implications on any adverse action that the Commission exercises without a quorum.