Politics, like insurance, has become a full-time regulated industry. Notwithstanding the command of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," an entire body of federal law now regulates political speech, association with political actors and lobbying. These laws, and their implementing regulations, fall into three categories that anyone involved in Washington should keep in mind.
Campaign Finance. Corporations are generally prohibited by federal statute from contributing or expending anything of value in connection with a campaign for, or election to, federal office. Similar prohibitions and restrictions apply to other business entities and individuals. Though exceptions to these prohibitions exist, they are relatively narrow. The regulations and advisory opinions of the Federal Election Commission detail these exceptions and provide relevant guidance.
Ethics and Gifts. Federal statutes also impose various ethical requirements on government officials and employees. In many instances, the requirements also apply to the people and businesses that interact with government officials and employees. These ethical requirements regulate gifts, travel, outside employment, negotiation for future employment and post-government employment activities. With regard to gifts, federal law authorizes the Office of Government Ethics, the House of Representatives Committee on Standards of Official Conduct and the Senate Select Committee on Ethics to promulgate rules that permit certain limited gifts. All three of these bodies have issued rules as well as opinions and other guidance regarding federal ethics and gift restrictions.
Lobbying. Amendments to the federal lobbying statute—the Lobbying Disclosure Act (LDA), as amended by the Honest Leadership and Open Government Act (HLOGA)—have been in effect for just over a year. Before the LDA was amended, entities engaged in lobbying the federal government were required to register and file periodic disclosure reports with the Secretary of the Senate and the Clerk of the House of Representatives regarding their federal lobbying activities. The HLOGA expanded these requirements and included new disclosure obligations on entities that employ lobbyists as well as individuals who qualify as lobbyists under federal law. The Secretary of the Senate and the Clerk of the House of Representatives have issued joint guidance regarding these registration and reporting obligations.
These laws often overlap in practice. For example, interaction with a member of Congress could implicate all three areas of law. They can also overlap as a matter of law. The HLOGA now requires that lobbyists and their employers disclose certain political campaign contributions and that they certify that they have read and are familiar with the gift rules of the Senate and House of Representatives and have not given any gifts in violation of those rules. Accordingly, compliance with these laws also requires a thorough understanding and appreciation of how they interrelate.
These laws have additional wrinkles when foreign nationals, foreign corporations or U.S. subsidiaries of foreign corporations are involved. To complicate matters more, each state and many municipalities also have laws that regulate in these areas. The Election Law & Government Ethics Practice of Wiley Rein LLP has decades of collective experience counseling and representing clients in connection with these laws at all levels of government.