Benjamin Keane

Three New Commissioners Join FEC as Busy 2021 Looms

On December 18, 2020, three new Commissioners were officially sworn in as members of the Federal Election Commission (FEC or Commission), restoring the agency’s quorum and its ability to conduct business for the first time since June of 2020.  The appointees – Ms. Shana Broussard, Mr. Sean Cooksey, and Mr. Allen Dickerson – were nominated by President Trump earlier this year and confirmed by the U.S. Senate on December 9th.  After months without a voting quorum, the FEC will now be able to commence its core regulatory and enforcement functions on matters of campaign finance and elections, including issuing advisory opinions, promulgating and implementing regulations, and taking formal action in enforcement matters.

For the first time in roughly three years, the panel will be at a full slate of six Commission members. The newest appointees include one Democrat and two Republicans with differing backgrounds and viewpoints on the role of the Commission and the appropriate reach of federal campaign finance and election law.  Shana Broussard, the newest Democrat Commissioner, fills the seat previously held by former Commissioner Ann Ravel and holds a term that extends through April 30, 2023.  Ms. Broussard served as counsel to Commissioner Steven Walther prior to her appointment and also has previous public service experience as an Attorney Advisor for the Internal Revenue Service and Assistant District Attorney in New Orleans, LA.  Commissioner Cooksey – one of the new Republican additions to the Commission – joins the agency after serving as General Counsel to U.S. Senator Josh Hawley and Deputy General Counsel to U.S. Senator Ted Cruz.  Prior to his government service, Mr. Cooksey worked as an attorney in private practice focusing on appellate and constitutional law.  Commissioner Dickerson – the second of the new Republican members of the Commission – joins the agency after a long stint as legal director for the Institute for Free Speech and its nationwide First Amendment litigation practice.  Mr. Dickerson also has background as a Judge Advocate in the US Army Reserve and as a private practice litigator.  

Due to its longstanding lack of a quorum, the FEC currently faces a significant matter backlog with at least – 446 open matters before the agency and 275 staff reports awaiting action.  The beginning of 2021 thus looks to be a busy one for the new Commissioners, as they attempt to clear their docket and set priorities for regulation and enforcement in the dynamic of a Biden administration.   In light of this reality, the Dentons Political Law Team, which regularly represents clients before the FEC in enforcement matters, investigations, audits, advisory opinion requests, and other matters, will monitor the agency’s activities in the coming months and provide regular updates.

2020 Presidential Election: Where Things Stand

November 3rd is nearly two weeks in our rear view mirror – here is what we know. Most major news outlets have called the race for former Vice President Joe Biden, but President Donald Trump has refused to concede, and has filed a string of lawsuits around the country challenging the results of the election. We leave the politics aside and provide you with an overview of where things stand in the certification process in key states, and what is required to happen between now and Inauguration Day by federal law.

Vote Certification – and the Electoral College

Congress enacted the Electoral Count Act of 1887 to set forth a uniform process for states to follow to deliver their electoral votes to Congress after the election. Congress ultimately counts and certifies the results of the Electoral College, this year on January 6th, three days after the new Congress is sworn in on January 3rd. In order for a state’s electors to receive protection that Congress will accept their electors without any questions asked, a state must certify the results of its election by the “safe harbor” deadline of six days before the electors meet to cast their votes. This year, that means that states have until December 8th to receive safe harbor status, as the winning electors will meet to cast their votes for President and Vice President on December 14th.

As of the time of this writing, six states have already certified their electors. It is widely expected that all states will do so before the safe harbor deadline. While there are reports that Republican legislators in some states may try to certify their own slate of electors in conflict with current state law in every state, this is a highly unlikely scenario, and one that likely wouldn’t change the electoral college count such that the results of the election change. We briefly detail the current status of vote certification in a number of swing states below.

Status in Swing States

Arizona

The certification date for Arizona is November 30th. As of the time of this writing, former Vice President Biden maintains a roughly 11,000 vote lead, and most major news outlets have declared him the victor. Arizona has very restrictive recount laws, so there is unlikely to be a recount. The Trump campaign has filed a lawsuit seeking to block the state’s certification of votes.

Georgia

The certification date for Georgia is November 20th. As of the time of this writing, former Vice President Biden maintains a roughly 14,000 vote lead, and most major news outlets have declared him the victor. The Georgia Secretary of State has announced that the state will conduct a hand recount of every ballot cast in the presidential race, and will also conduct a risk-limiting audit to rule out the possibility of fraud or errors. This process has begun as of the time of this publication.

Pennsylvania

The certification date for Pennsylvania is November 23rd. As of the time of this writing, former Vice President Biden maintains a roughly 60,000 vote lead, and most major news outlets have declared him the victor. Biden’s lead is currently too large to trigger an automatic recount, and it is unclear if the Trump campaign would request one. Pennsylvania is the state where the Trump campaign has filed the most lawsuits. Because of one of the lawsuits, the United States Supreme Court ordered mail ballots postmarked by election day but received in the three days following election day to be sequestered. The number of ballots in this category appears to be approximately 10,000. The Trump campaign has also filed a lawsuit seeking to block the state’s certification of votes.

Wisconsin

The certification date for Wisconsin is December 1st. As of the time of this writing, former Vice President Biden maintains a roughly 20,000 vote lead, and most major news outlets have declared him the victor. The Trump campaign has said that it would request a recount, which would need to be completed within 13 days of its commencement under state law.

Abramoff Pleads Guilty to Criminal Lobbying Violation in Landmark Prosecution

Last month, the US Department of Justice (“DOJ”) filed multiple criminal charges against well-known lobbyist Jack Abramoff, including a charge that Abramoff violated the Lobbying Disclosure Act (“Act”). According to the US Department of Justice, Abramoff plead guilty to conspiracy to commit wire fraud and violating the LDA for separate cases. This marks the first ever known prosecution of a lobbyist for a criminal violation of the LDA. Abramoff was previously sentenced to six years in federal prison for mail fraud, conspiracy to bribe public officials, and tax evasion related to lobbying efforts on behalf of Native American casino businesses and tribes.

The DOJ charged Abramoff with knowingly and corruptly failing to register as a lobbyist, as required by the LDA, after being retained for lobbying efforts by a client in the marijuana industry. Specifically, the DOJ alleged that in June of 2017, Abramoff failed to register as a lobbyist for efforts on behalf of the client that involved communications with one or more federal officials, as required by the LDA. The LDA requires, generally, that any person engaged in lobbying efforts with the federal government register as a lobbyist with the Secretary of the Senate and the Clerk of the House of Representatives within 45 days of the retention by the client or making the triggering contact. In Abramoff’s case, an FBI undercover agent posed as a potential client seeking assistance with federal lobbying efforts.  Abramoff signed an engagement and met with members of Congress, but failed to register for his efforts.

In a separate, unrelated matter, the DOJ alleged that Abramoff conspired with Marcus Andrade to mislead investors about a proposed new cryptocurrency called AML Bitcoin. The DOJ alleges that Abramoff and Andrade purported to show investors that their crypto-currency would comply with anti-money laundering and ‘know-your-customer’ laws and regulations. In one instance, Andrade and Abramoff hired writers to publish op-eds falsely claiming that NBC had rejected a Super Bowl ad featuring North Korean leader Kim Jong Un yelling at his subordinates for failing to hack the cryptocurrency.

The criminal prosecution against Abramoff for violating the LDA is being viewed as a significant moment that possibly signals new aggressiveness in federal lobbying enforcement. Transparency advocates have long contended that the registration and reporting obligations of the LDA are widely flouted by federal lobbyists, and criticized the DOJ for lack of enforcement in both the civil and criminal context. While it remains to be seen if this is an idiosyncratic prosecution driven by Abramoff’s high profile and past history as a lobbyist, it nevertheless serves as a reminder to companies, firms and individuals engaged in federal lobbying to employ a diligent compliance framework to ensure that the registration and reporting requirements of the LDA are met. The Dentons Political Law Group will continue to provide updates regarding this and other lobbying compliance-related developments.

New social media policies regarding political advertising already changing the 2020 political playbooks

As the national conversation surrounding the role of social media companies in influencing elections continues to heat up in the run-up to the 2020 elections, Twitter and Google have taken drastic and controversial steps to strengthen their internal political advertising policies.

Social media platforms have faced growing scrutiny since the 2016 election, as various investigations have verified that foreign actors exploited weaknesses in their digital advertising rules to spread misinformation through targeted political outreach. In light of these findings, technology companies are under mounting pressure from the public and Congress to push back against the spread of political disinformation through their platforms.

In November, Twitter became the first social media provider to institute a ban on political advertising across its platform. The ban took effect on November 22, following an October 30 announcement from CEO Jack Dorsey and the November 22 release of the full policy to the public. The ban applies to any promoted political advertisements intended to influence elections and ballot measures. Under its new rules, all political advertisements, whether from campaigns, government officials (elected or appointed), PACs or 501(c)(4) groups, that mention specific candidates, elections or legislation will be banned. These restricted sources will also be prohibited from running any paid/promoted advertisements on Twitter’s platform under the political ad ban. Guidance published by Twitter identifies “political content” as any content that includes references to a candidate, political party, government official, election, referendum, ballot measure, legislation, regulation, directive or judicial outcome. While candidates and government officials will no longer be able to launch promoted advertisements to targeted audiences on Twitter, there are no restrictions on what individual user accounts can post or share with existing followers. Additionally, any advertisements run by restricted sources that contain references to political content (e.g., appeals for votes, solicitations of financial support, and advocacy for or against political content) are banned under the new policy.

In addition to instituting a blanket ban on political advertisements, Twitter’s new policy seeks to place restrictions on targeted digital advertisements for high-profile social issues, such as climate change, gun control, and abortion. Individuals and groups will no longer be able to target social-issue ads to a user’s zip code or political identification. Instead, targeted advertisements will be restricted to broad geographical zones, such as states. News outlets will be exempted from the advertising ban provided posts/ads do not advocate for a specific political outcome. Organizations (including businesses and 501(c)(3) organizations) and activists will not be completely blocked from running ads on the platform however. Advertisements that focus on broadly defined political causes and social issues will still be permitted from non-restricted sources so long as posts refrain from advocating for/against candidates, elections or legislative proposals.

Google, not to be outdone, announced on November 20 that it would likewise be curtailing how political candidates and organizations are allowed to advertise on its platform moving forward. The new policy, which will take effect on January 6, 2020, does not outright ban certain groups from making political ads like Twitter does, but instead seeks to limits targeted election messaging by political organizations and candidates to three general categories of age, gender and location (down to the postal code level) in the US. This shift in permissible targeting categories contrasts with Google’s current advertising policies, which allows political ad targeting to specific audiences using personal user information such as political affiliation and voting records. Google’s new policy will also prohibit ads containing demonstrably false claims or misleading information that have the potential to undermine participation or trust in an electoral or democratic process. Examples of prohibited ads provided by company officials in this context include communications that falsely claimed that a candidate has died or ads that gave the wrong date for an election, but it is not clear how much further this false content screening mechanism will stretch.  Google does claim, however, that its new policies will not attempt to regulate the veracity of ads containing standard political speech on which opposing political sides may disagree.

While Facebook has refrained from implementing an outright ban on political ads, the company unveiled more stringent disclosure rules for political communications in September. Industry insiders are expecting the company to join Twitter and Google in the near future, however. These self-regulatory efforts by America’s Silicon Valley technology giants are being closely watched by lawmakers and regulators at the federal and state levels as government officials weigh whether and how to wade into the fray over political speech on the Internet. It remains to be seen how effective these self-imposed measures will be at deterring foreign and other bad actors from spreading political disinformation as the first presidential primaries of the 2020 election cycle draw near. The Dentons Political Law Team will continue to monitor the situation and provide updates as necessary.

Facebook releases updated disclosure rules for political ads in advance of 2020 elections

In a preemptive effort designed to enhance transparency for the upcoming 2020 elections, Facebook has announced that it will strengthen its digital advertisement program rules for political ads to increase disclosure requirements for advertisers using the platform. The decision comes after months of scrutiny from Congress and growing public concern over the use of Facebook’s platform by foreign actors to spread political misinformation during the course of the 2016 election cycle. 

The 2016 presidential election saw a record amount of digital political advertising across the country, with the majority of spending going toward major technology players such as Facebook and Google. With multiple congressional investigations and the report of former Special Counsel Robert Mueller verifying that foreign actors took advantage of these platforms to spread misinformation via targeted political advertisements leading up to the 2016 election, technology companies are under mounting pressure to take action to combat the spread of misinformation.

With this goal in mind, Facebook’s new digital advertisement review program guidelines will implement more stringent transparency rules for advertisers seeking to purchase ad space on the social media platform. The newly adopted procedures will require advertisers to supply significantly more information about their organization during the purchasing process than what the company has previously required. Moving forward, when securing ad space, advertisers will be required to provide information such as a U.S. street address, phone number, business email and business website matching the listed email – all information that indicates the existence of a legitimate domestic enterprise.

Additionally, Facebook is implementing new disclaimer requirements in order to improve transparency surrounding ‘Paid for by’ disclaimers. Under the company’s new policy, advertisers will be required to provide organizational information that will be used to create an information field – or “i” icon that appears on a posting – and allow site users to confirm that the organizations are legitimate actors. As part of this change, Facebook has also announced new guidelines for advertisers who wish to be certified as a ‘Confirmed Organization’ on the social network. In order to be recognized as the most trusted ‘Confirmed Organization’, advertisers must provide a tax ID number, Federal Election Commission (FEC) ID number, or a government website domain that matches an email ending with a government (.gov) or military (.mil) email line.

While Facebook has taken this first step toward revamping its internal political advertising policies and disclosure requirements, it is difficult to predict the full impact this change will have during the 2020 federal election cycle. Just as digital political advertising and marketing have outpaced the regulatory efforts of federal and state lawmakers across the country, so has it (to a lesser degree) outpaced the transparency and disclosure actions of the private platforms themselves.  Once can likely expect the same in the current cycle, but Facebook’s new policy still represents an important first move by Silicon Valley to dissuade foreign and other bad actors from poisoning the well of political discourse heading into 2020. 

As election season heats up next year, Dentons expects to see more changes to social media and technology companies’ digital advertisement policies and will endeavor to keep our readership posted.

Partisan Gerrymandering Upheld by U.S. Supreme Court

On June 27, 2019, the Supreme Court decided Rucho v. Common Cause, a highly-anticipated case stemming from legal challenges to the purported partisan gerrymandering of congressional districts in Maryland and North Carolina. 

In a 5-4 ruling, the Court held that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Consequently, gerrymandering can only be addressed or resolved through action from Congress or individual states, and the drawing of highly partisan legislative districts, which have increasingly raised political ire in recent years, can no longer be challenged in the courts solely on political grounds.

Gerrymandering is the practice of drawing electoral district boundaries in a way that gives one party a distinct advantage over its rivals. Gerrymandering is by no means a new phenomenon – its roots trace back to the first US congressional elections.  In recent years, however, both political parties have taken advantage of control over various state legislatures to craft electoral maps strengthening their opportunity for political success in future years.  In the Rucho case, the districts at issue were the most recently-drawn congressional boundaries in the states of North Carolina and Maryland.  In North Carolina, litigants challenged the legitimacy of Republican-drawn districts that disadvantaged Democrat prospects in federal elections.  Similarly, in Maryland, litigants objected to the imbalance of congressional lines drawn by state Democrats to the disadvantage of Republicans.

Despite the balanced posture of the case, the Court’s majority leaned on precedent and the inherently political question before it when crafting its opinion. According to the majority, there is longstanding precedent recognizing the power of state legislatures to draw electoral districts – an inherently political task.  As such, in his majority opinion, Chief Justice Roberts argued that partisanship is allowed to play a role in the drawing of congressional districts – indeed this was the Founders’ intent.  In turn, the Court asserted that any attempt by courts to interject themselves into the process of weighing levels of partisanship in gerrymandering cases would inherently mean judges would be arbitrarily deciding how much partisanship is too much rather than resolving such disputes based upon clear, manageable and politically-neutral standards and limited and precise rationales. 

The rulings of the lower courts in North Carolina and Maryland, grounded in rubrics that the Court viewed as non-justiciable, were thus vacated.  It is noteworthy that the majority distinguished partisan gerrymandering from gerrymandering that involves population inequality or racial discrimination – both of which the Court has previously ruled as unconstitutional.  Ultimately, any partisan gerrymandering disputes can only be resolved politically through state legislation, state constitutional amendments, or Congress.

While the Court’s opinion expressed frustration over the excessive partisanship driving redistricting in the current political environment, the majority found that the judiciary is simply not the proper governmental branch to find solutions to the political issue of partisan gerrymandering.  Moving forward, Rucho puts the ball firmly in the courts of the people’s elected legislators to address the question of partisan gerrymandering.  Some states — Florida, Michigan, and Colorado, e.g. –  have passed amendments to their state constitutions limiting the practice. Others like Delaware and Iowa have passed laws through their state legislatures prohibiting favoritism in redistricting. Congress also now has the opportunity to address the issue through legislative means. 

Dentons will continue to monitor these efforts moving forward and provide insight on how such efforts will impact future elections at the federal, state and local levels around the country.  

FEC increases contribution limits for 2019-2020

The Federal Election Commission (FEC) updated the federal contribution limits for the 2019-2020 election. The new per election limits were effective January 1, 2019. Below is a chart that explains the new limits on each donor.

The chart above illustrates the new increased contribution limits to the respective donors. Individuals can now contribute $2,800 per election to a candidate, an increase of $100 from the 2018 cycle. This means that individuals may now give up to $5,600 per candidate per cycle (combined to include both the primary and general election limits). Due to changes in inflation, these limits are increased every odd-numbered year to balance out differences.

The contribution limit to national party committees can now contribute $35,500 per year, an increase of $1,600 from last year. The annual max contributions to the national party committee accounts have been increased to $106,500, an increase of $4,800.

Note that traditional PAC contributions are not indexed for inflation. This means that PAC contributions remain the same from 2018.