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.

Democrats Articulate a Climate Change Vision

Introduction

On June 30th, Democrats on the House Select Committee on the Climate Crisis released a comprehensive climate change report, which established a goal of reaching net-zero greenhouse gas (GHG) emissions.

While the Select Committee does not maintain any actual legislative authority, the Democratic staff report includes over 100 legislative recommendations for multiple House Committees. In some respects, the report’s recommendations expand beyond just merely climate change, addressing environmental justice, water infrastructure and job creation.

The Select Committee’s report comes amidst a busy several weeks with respect to Democrats articulating a vision for climate change. Former Vice President Joe Biden, the presumptive Democratic Presidential nominee, released on Tuesday an updated clean energy and climate change plan that aims to achieve no later than 2050 a net-zero economy. Among other provisions, Biden proposes requiring that utilities generate 100 percent of their electricity from non-emitting sources by 2035. Biden’s proposal largely mirrors recommendations released by a Biden-Sanders Unity Task Force on climate change that attempted to reconcile the moderate and progressive wings of the Democratic Party. And, House Democrats, on July 2nd, passed H.R. 2, The Moving Forward Act, a US$1.5 trillion infrastructure package that extends renewable tax incentives and invests US$70 billion in clean energy.

As to the House Select Committee report, the majority of the legislative recommendations are unlikely to be passed into law this year. Yet, the report could serve as the basis for a climate change legislative agenda next year, especially if the Senate and Presidency come under Democratic leadership.

The House Select Committee report includes recommendations for tax credits, market reform, clean energy standards, grid modernization, nuclear energy industry, natural gas development, carbon pricing, federal procurement, carbon capture, transportation, environmental justice, and agriculture. Below is a summary of some of the key recommendations in each of the areas.

Tax Credits

  • Extends the Production Tax Credit (PTC) and the Investment Tax Credit (ITC) for renewables.
  • Extends the offshore wind ITC at 30 percent and establishes an ITC for energy storage.

Market Reform

  • Amends the Federal Power Act to provide that rates that do not incorporate the cost of CO2 emissions are unjust, unreasonable, unduly discriminatory and/or preferential.
  • Directs the Federal Energy Regulatory Commission (FERC) to conduct rulemaking that would require ISOs/RTOs better integrate renewable energy, battery storage, distributed energy resources, and demand response.

Clean Energy Standard (CES)

  • Requires that utilities provide 100 percent clean energy by 2040. The report states that clean resources include renewables, hydro, nuclear and sources employing carbon capture.
  • Clarifies that a federal CES would not preempt state clean/renewable energy standards.

Grid Modernization

  • Clarifies that FERC can exercise backstop siting authority for interstate electric transmission facilities within a National Interest Electric Transmission Corridor.
  • Establishes a DOE program to support states and local governments siting electric transmission lines.
  • Directs FERC to promulgate incentives to improve the capacity and efficiency of the bulk electric transmission system.
  • Authorizes DOE funding to identify and evaluate climate-related risks to electric grid infrastructure.
  • Establishes a competitive grant program for state and local governments to invest in technologies and strategies to improve the resilience of the electric distribution system.

Nuclear

  • Directs the Department of Energy (DOE) to support small modular reactors through research and development, federal financing, loan guarantees or pilot programs.
  • Directs the Nuclear Regulatory Commission to increase inspections at aging nuclear plants.

Natural Gas

  • Reinstates Obama-era Environmental Protection Agency (EPA) standards on methane emissions associated with new and modified oil and gas sources. The report also calls for reinstating an Obama-era Bureau of Land Management (BLM) rule, which set limits on methane emissions from oil and gas sources operating on federal lands.
  • Directs EPA and BLM to conduct rulemakings to achieve reductions of methane emissions from new and existing oil and gas sources of 65-70 percent by 2025 and 90 percent by 2030. In addition, the report directs EPA and BLM to prohibit the use of routinely flared gas at oil wells.
  • Requires that natural gas pipeline operators install technology to mitigate leaks and report any leaks immediately. The report also increases civil penalties for violations of federal safety laws and regulations.
  • Amends the Natural Gas Act to clarify that FERC must consider upstream and downstream natural GHG emissions associated with interstate natural gas pipelines and LNG facilities and bolsters protections for landowners.
  • Eliminates current exemptions that the oil and gas industry enjoys to the Clean Air Act, Clean Water Act and the Resources Conservation and Recovery Act.
  • Ends tax incentives for oil and gas production.

Carbon Pricing

  • Places (but does not specify) a price on CO2 emissions and states that any carbon pricing regime should be structured to support energy-intensive, trade exposed industries and low- and medium-income households. The report emphasizes that the imposition of carbon pricing should not be used to provide liability protections to large emitters.

Federal Procurement

  • Directs the federal government to purchase 100 percent of its electricity needs from clean sources by 2040.

Carbon Capture

  • Bolsters DOE funding for technologies, including carbon capture, that reduce industrial emissions.
  • Expands existing 45Q carbon capture tax credit and enacts a separate ITC specifically for carbon capture and utilization projects.

Transportation

  • Directs EPA to create new GHG emission standards for passenger vehicles, light-duty vehicles, and trucks, along with medium- and heavy-duty vehicles. The report would also allow states to adopt and enforce California’s motor vehicle emission standards.
  • Establishes a technology-neutral national zero-emission vehicle (ZEV) sales standard to ensure all light-duty vehicles sold by 2035 are zero-emission and expedite the use of zero-emission vehicles in industries that have zero-emissions vehicles available.
  • Develops a Low Carbon Fuel Standard to build on the Renewable Fuel Standard (RFS) to institute a technology and feedstock neutral benchmark that would lower the carbon standard over time based on lifecycle assessment of carbon intensity fuels.
  • Increases the per-manufacturer cap on the electric vehicle tax credit.
  • Invests in research, development, demonstration and deployment to develop new zero-emission technologies for manufacturing in the transportation sector .
  • Directs EPA to set GHG standards for new and existing aircrafts.
  • Creates a new program within the Department of Transportation (DOT) to share costs with state and local governments and private sector technology developers to deploy resilient solutions for public transit electrification, including smart grids.

Environmental Justice

  • Doubles EPA’s enforcement budget and directs the agency to make environmental and climate justice one of its enforcement and compliance assurance priorities.
  • Directs DOE to identify best practices to increase electric vehicle supply equipment deployment in environmental justice and vulnerable communities.
  • Directs the EPA to develop a methodology to assess the cumulative and disproportionate impacts of pollution on environmental justice communities to incorporate into agency decision-making.
  • Directs EPA to ensure that individuals in affected environmental justice community are involved in the development of environmental projects in their communities.
  • Creates a grant program to support Historically Black Colleges and Universities, tribal colleges, and other Minority Serving Institutions establishing environmental and climate justice centers.

Agriculture

  • Modifies existing US Department of Agriculture (USDA) programs to encourage farmers to employ practices that increase carbon sequestration and reduce GHG emissions.
  • Directs the Department of Treasury and USDA to study federal tax credits to incentivize carbon sequestration and GHG reduction on farms.
  • Establishes a grant program to provide states and tribes with funding for soil carbon sequestration programs to support healthy soil initiatives.
  • Directs USDA to provide additional grant funding or equipment rental loans for farmers to transition to low-emissions equipment.
  • In addition to these recommendations, the report includes legislative recommendations relating to public health, climate resiliency, international climate change engagement, confronting climate risks to US national security and bolstering the climate science, among other proposals.

In addition to these recommendations, the report includes legislative recommendations relating to public health, climate resiliency, international climate change engagement, confronting climate risks to US national security and bolstering the climate science, among other proposals.

House sends US$2 trillion in Economic Aid Package to the President to sign

To respond to the coronavirus health crisis and the enormous economic downturn caused by the pandemic, the House of Representatives just now passed by voice vote the CARES Act, the US$2.2 trillion stimulus package that the Senate passed late Wednesday night by a 96-0 vote. The bill now goes to President Trump who has said that he will sign it into law immediately. 

This bill, the third legislative response to the coronavirus crisis, marks the biggest economic rescue package in US history. Passage of the bill marked the end to nearly week-long negotiations between senators, House Speaker Pelosi and the Trump administration.

Among its many provisions, the bill provides US$150 billion in aid for the health care industry. US$100 billion of which will be widely available.to hospitals and providers. It has substantial support for laid off employees, small businesses, non-profits, and numerous other industries that have been reeling from the economic impact of the virus. The wide-reaching bill includes a US$1,200 one-time check for individuals who make up to US$75,000 annually and married up to US$150,000.  It provides US$377 billion in small loan relief loan to numerous businesses, defers federal student loan payments through September 30 and provides US$260 billion in unemployment benefits. 

The bill also includes a US$500 billion infusion into the Treasury Department’s Exchange Stabilization Fund, to be used to make loans, loan guarantees, and other investments to businesses, states, and municipalities in 2020. Of that amount, it would provide as loans and loan guarantees as much as: US$25 billion in direct lending for passenger airlines, ticket agents, and aviation inspection and repair services, US$17 billion for unspecified businesses critical to national security and US$4 billion for cargo airlines.  As much as US$454 billion, and any other unused loan funds, would be available to make loans, loan guarantees, and other investments to support programs or facilities established within the Federal Reserve. Funds could be used to purchase obligations or other interests from businesses, states, or municipalities directly or in secondary markets.

Subject to returning to Washington, DC on 24 hours’ notice, the Senate has now adjourned until April 20 and the House also is not expected to return to DC for at least a comparable period.  We will continue to update you on all legislative and regulatory developments in connection with the COVID-19 crisis.

Click here to download the Senate bill.

Click here to download a section by section summary of the bill.

SECTION BY SECTION REVIEW OF COVID RELIEF BILL

Last night, the US Senate passed what is being dubbed as the Phase 3 COVID-19 Emergency Economic Relief Package. It provides over $2.2 trillion in financial assistance to public and private entities. The Senate has now adjourned until April 20 and the House is scheduled to take up the bill and pass it by a voice vote tomorrow. The President is expected to sign the bill tomorrow evening. Click here to view the bill.

Dentons has assembled a section by section summary of the bill. 

Updates from Washington, D.C. on the Federal Stimulus Package

Dentons Senior Policy Director Gary Goldberg discusses the pending stimulus legislation.

Senate Approves US$350 billion for Small Business Grants

The Senate has passed a bill that will provide up to US$350 billion in forgivable loans to small business concerns, non-profit and veterans organizations and self-employed individuals to cover their expenses during the COVID-19 crisis.

Select Updates

  • Size test is the greater of (a) 500 employees or (b) the size standard by industry sector (NAICS code) established by the SBA
  • Employees defined to include individuals employed full-time, part-time or other basis (includes gig economy workers)
  • Small businesses that were not in business during 2019 can calculate monthly payroll costs using average from January 1, 2020 and February 29, 2020
  • SBA regulations may require affiliated companies’ employees (and their portfolio companies) to be combined for purposes of eligibility.  Implications to VC/PE backed companies.
  • Maximum loan amount remains 250% of monthly payroll costs (including commissions) plus any amount outstanding on an Economic Injury Disaster Loan (EIDL) originated during the period from January 31, 2020 until the date of origination of the new loan
  • Use of proceeds that are permitted now include interest payments on mortgages and/or other debts but not principal payments
  • Previously originated EIDL loans may be refinanced into forgivable loans
  • Eligibility considerations no longer include whether the applicant has been substantially impacted by public health restrictions related to the Coronavirus

Existing Federal Economic Assistance Options for Small Businesses Affected by the Coronavirus (COVID-19): Part 1

This alert focuses on the existing federal economic assistance option with the U.S. Small Business Administration (“SBA”) called Economic Injury Disaster Loans (“EIDLs”).  Dentons will provide updates on the EIDL discussed below, as well as updates on additional economic assistance options, notably the anticipated Small Business Interruption Loan Program (see our most recent client alert on that program here), as new information becomes available. 

U.S. Small Business Administration – Economic Injury Disaster Loan

While the SBA’s EBILs have existed for some time, the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (P.L. 116-123) increases the amount made available to the SBA to use for EBILs to $197.2 million. 

What Is The EIDL?

The EIDL is a low-interest federal disaster loan of up to $2 million offered by the SBA to small businesses, as well as private, non-profit organizations to help alleviate economic injury directly caused by the coronavirus in certain approved areas. 

Which States Are Eligible?

As of March 23, 2020, small business owners in the following designated states are eligible to apply for a loan: Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Virginia, Washington, and West Virginia.

Certain contiguous counties located in the following states are also eligible: Alabama, Arizona, Arkansas, Idaho, Iowa, Kentucky, Mississippi, Missouri, North Dakota, Oregon, Texas, Vermont, Wisconsin, and Wyoming.

The most current list of states and contiguous counties can be found here.

What Is An Eligible “Small Business?”

There unfortunately is no single SBA guideline when it comes to size of the business.  Factors taken into account vary by industry and may include:

  • Average annual revenue (depending on the industry, annual revenue may not exceed $1 million or $30 million); or
  • Average annual number of employees (depending on the industry, the maximum number of employees might be 250 or 1,500).

See 13 C.F.R. § 121.201 (setting forth a table of SBA size standards identified by North American Industry Classification System (NAICS) codes).  Moreover, when calculating the size of your business, the SBA requires including the revenue and employees of any affiliates (i.e., a business that controls or has the power to control another, or a third party that controls or has the power to control both businesses).  The SBA offers online a Size Standards Tool for prospective applicants to check if their organization qualifies as a small business.

Additionally, a “business concern” for the purposes of EIDL is: (1) a business entity organized for profit; (2) with a place of business located in the United States; and (3) which operates primarily within the United States, or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor.”  13 C.F.R. § 121.105(a).  The business concern may be:

  • An individual proprietorship;
  • A partnership;
  • A limited liability company;
  • A corporation; or
  • A joint venture, association, trust, or cooperative, except that where the form is a joint venture there can be no more than 49% participation by foreign business entities in the joint venture.

13 C.F.R. § 121.105(b). 

Importantly, your organization is not eligible for the EIDL if, for example, your organization is:

  1. Engaged in lending, multi-level sales distribution, speculation, or investment (except for real estate investment with property held for rental when the disaster occurred);
  2. A non-profit or charitable concern, other than a private non-profit organization;
  3. A consumer or marketing cooperative;
  4. Deriving more than one-third of gross annual revenue from legal gambling activities;
  5. A loan packager which earns more than one-third of its gross annual revenue from packaging SBA loans;
  6. Principally engaged in teaching, instructing, counseling, or indoctrinating religion or religious beliefs, whether in a religious or secular setting; or
  7. Primarily engaged in political or lobbying activities.

13 C.F.R. § 123.301. 

Use of EIDL Proceeds?

EIDL proceeds are working capital loans and may be used to pay fixed debts, payroll, accounts payable, and other bills that cannot be paid due to the impact of the coronavirus.  See 13 C.F.R. § 123.303(a).

Importantly, loan proceeds may not be used to:

  • Refinance existing debt;
  • Repay other SBA loans or loans from another federal agency;
  • Pay, directly or indirectly, any taxes, fines or penalties;
  • Repair physical damage; or
  • Pay dividends or other disbursements to owners, partners, officers or stockholders, except for reasonable remuneration directly related to their performance of services for the business. 

13 C.F.R. § 123.303(b).

What Are The Conditions?

  • The interest rate is 3.75% for small businesses and 2.75% for private, non-profit organizations. 
  • The SBA offers loans with long-term repayment options, up to a maximum of 30 years; however, the term ultimately will be determined on a case-by-case basis, depending on the borrower’s ability to pay. 

The Application Process and Timing?

The application for the EIDL is a three-step process:

  • Apply for a loan;
  • Verify property and make loan processing decision; and
  • Close loan and disburse funds. 

The timing of the first step is largely in the control of the applicant as it consists of filling out the forms listed below.  With respect to the second step, it has historically taken the SBA loan officers up to three weeks to make a decision.  As to the third step, the SBA will prepare and send loan closing documents for signature upon approving the application.  Once the loan closing documents are received, an initial disbursement of $25,000 has historically been made within five days.  The loan will be fully disbursed in subsequent disbursements pursuant to a schedule determined by a case manager assigned to work with the borrower. 

When Do I Need To Apply By?

  • The deadline to apply for the EIDL is nine months from the date of the state governor’s disaster declaration. 
  • While the deadline may seem like months away, if your organization needs access to capital immediately, your organization may wish to consider applying for the EIDL sooner, rather than later, because processing applications may take a considerable amount of time.  
  • Prospective applicants should also be mindful that the SBA likely will experience significant backlog in processing applications, or that the SBA could deny the application, which would delay relief.

How To Prepare?

Review the following forms and collect information prior to starting the application:

Gather the following information or documents:

  • Year-end and current profit and loss statements;
  • A monthly breakdown report of sales; and
  • Complete copies of the business’s most recent Federal income tax returns (typically the last three).

Where Can I Apply?

Prospective borrowers may submit an online application here.  While the SBA prefers online applications, prospective borrowers can also call contact the SBA disaster assistance customer service center at (800) 659‑2955 (TTY: (800) 877‑8339) or e-mail disastercustomerservice@sba.gov and request a paper application by mail.