A Guide to Political and Lobbying Activities Updated: February 2019 A SUMMARY OF MAJOR CHANGES TO A GUIDE TO POLITICAL AND LOBBYING ACTIVITIES This January 2019 edition of A Guide to Political and Lobbying Activities (the “Guide”) includes updates to reflect an increased scrutiny of representation of foreign governments, corporations, and other entities in the United States and the possibility of additional legislative reforms in this area. The Guide includes a new subsection on the Foreign Agents Registration Act (“FARA”) that highlights these updates and the Department of Justice’s renewed interest to launch investigations and bring enforcement actions. It also includes analysis and guidance – limited as it may be due to a still unfolding case – regarding disclosure of certain politically-related contributions to 501(c)(4) tax-exempt entities and possibly other entities as a result of the CREW v. FEC case, which held that politically active nonprofits that make substantial independent expenditures must disclose the identification of contributors. The Guide continues to track changes brought about by the Office of Government Ethics’ (“OGE”) publication of revised gift rules applicable to executive branch employees that became effective in 2017, including changes to the widely attended gatherings exception and various new rules on gift and post- employment restrictions that apply to political appointees who are required to sign President Trump’s ethics pledge. Finally, we note that the Department of Justice (“DOJ”) continues to demonstrate heightened attention to lobbying registration (beyond just registration on behalf of foreign entities) and campaign finance issues. Corporations, trade associations, and other tax-exempt organizations need to remain careful in their interactions with candidates, their campaigns, and elected officials, as the DOJ has previously handed down sizable fines to lobbying registrants for skirting registration requirements. The Guide and other political and lobbying activity guidance are available online and will be updated regularly. Go to www.klgates.com and search for “ethics guide.” Copyright © 2019 K&L Gates K&L GATES POLITICAL LAW PRACTICE K&L Gates’ lawyers and professionals understand the compliance pitfalls that can derail a well-designed and executed lobbying effort or political outreach campaign. As lobbyists ourselves, K&L Gates’ political law attorneys are well positioned to design effective, workable compliance strategies, as well as offer strategic thinking to help achieve your goals. Our political law practice routinely assists major corporations, trade associations, corporate political action committees (“PACs”), political committees, campaigns, political professionals, and political donors with: • Federal, state, and local campaign finance restrictions, including pay-to-play laws; • FEC advisory opinions and enforcement actions; • PAC formation and fundraising, including Super PACs; • Federal, state, and local lobbying registration and reporting; • Federal, state, and local compliance with gifts, meals, and travel restrictions; • Federal, state, and local pay-to-play laws; • Post-employment rules for government officials; • Foreign Agents Registration Act (“FARA”) registration and reporting; and • Political ethics compliance and training. Copyright © 2019 K&L Gates A NOTE OF CAUTION This updated Guide, prepared by K&L Gates, is intended to provide general guidance by highlighting some of the major restrictions on political and lobbying activities at the federal level. This Guide focuses on the limitations and restrictions applicable to individuals, corporations, and corporate PACs, including special limitations applicable to corporations organized as public charities under Section 501(c)(3) of the Internal Revenue Code. There are also some special rules for trade associations, which are not discussed in this Guide. Similar but separate rules apply to unincorporated entities such as partnerships and their non-connected PACs, which are also not discussed in this Guide. This Guide is not intended, and should not be relied upon, as legal advice on any particular situation or set of facts. This Guide is an overview and is not intended to be an exhaustive or detailed analysis of all the relevant law and issues. Many of the areas – particularly the complicated exceptions – are replete with subtle nuances and unclear interpretations. Accordingly, certain issues may require more thorough and specific examination. Since violations of relevant ethics restrictions can lead to strained relations, adverse publicity, reputational damage and even civil or criminal sanctions, caution is strongly advised. Further guidance should be sought if there is any doubt about the application of these restrictions. If you have questions about this Guide or need political law advice, contact K&L Gates at 202.778.9000, or relevant ethics advisors within the executive branch agencies, FEC, or Congress. Tim Peckinpaugh Scott C. Nelson Eli Schooley K&L Gates K&L Gates K&L Gates 1601 K Street, NW 1601 K Street, NW 1601 K Street, NW Washington, DC 20006 Washington, DC 20006 Washington, DC 20006 One SW Columbia Street, Suite 1900 Portland, OR 97258 Phone: 202.661.6265 Phone: 202.778.9222 Phone: 202.778.9039 Fax: 202.778.9100 Fax: 202.778.9100 Fax: 202.778.9100 [email protected] [email protected] [email protected] Tax-Exempt Organizations group Investment Management group contributors contributor J. Barclay Collins Diane Ambler Cary Meer Ruth Delaney Washington, DC Washington, DC Washington, DC Los Angeles, CA Phone: 202.778.9244 202.778.9886 202.778.9107 310.552.5068 Fax: 202.778.9100 202.778.9100 202.778.9100 310.552.5001 [email protected] [email protected] [email protected] [email protected] For more information on K&L Gates, the Public Policy and Law, Tax-Exempt Organizations or Investment Management groups, please visit www.klgates.com. __________ Copyright © 2019 K&L Gates TABLE OF CONTENTS A GUIDE TO FEDERAL POLITICAL AND LOBBYING ACTIVITIES I. POLITICAL FUNDRAISING ........................................................................................................ I-1 A. Individual Hard Money Contributions & Limitations .............................................................. I-2 B. Fundraising Activities By Corporate Officials ........................................................................ I-8 C. Corporate PAC Activities....................................................................................................... I-17 D. Federal and State Pay-to-Play Laws………………. .............................................................. I-26 E. Independent Expenditure-only Committees (“Super PACs”) ................................................. I-34 II. LOBBYING DISCLOSURE & DEDUCTIBILITY .......................................................................... II-1 A. Lobbying Disclosure .............................................................................................................. II-2 B. Disclosure of Activities Through the Foreign Agents Registration Act (“FARA”) .................. II-18 C. Political Intelligence ............................................................................................................... II-22 D. Lobbying Restrictions Regarding Contracts & Grants .......................................................... II-24 E. Lobbying Deductibility ........................................................................................................... II-28 III. CONGRESSIONAL ETHICS......................................................................................................... III-1 A. Gifts & Entertainment ............................................................................................................ III-2 B. Travel .................................................................................................................................... III-10 C. Honoraria .............................................................................................................................. III-15 D. Congressional Post-Employment Rules ............................................................................... III-16 IV. EXECUTIVE BRANCH ETHICS .................................................................................................. IV-1 A. Gifts From Outside Sources .................................................................................................. IV-2 B. Travel .................................................................................................................................... IV-9 C. Honoraria .............................................................................................................................. IV-12 D. Executive Branch Post-Employment Rules .......................................................................... IV-14 V. SPECIAL RULES FOR 501(C)(3) ORGANIZATIONS ................................................................ V-1 A. The Statutory Background .................................................................................................... V-2 B. The Lobbying Restriction ...................................................................................................... V-3 C. The Political Campaign Activity Prohibition........................................................................... V-14 VI. APPENDICES A. Overview of Federal Political Contribution Limits B. Flow Charts