Campaign Finance and Election Law
Holland & Knight provides a full range of legal and governmental representation services to clients whose interests are in elections, campaign finance or ethics matters. If you represent a corporation or trade association interested in establishing and maintaining federal and state political action committees (PACs) in compliance with the laws and regulations relevant to this activity, or if you are contemplating activity in a political and governmental area that could implicate an ethics or campaign finance enforcement action, Holland & Knight is uniquely qualified to offer you a breadth of services in these areas.
As never before, the elections and campaign finance arenas are undergoing enormous scrutiny. With changes being made by lawmakers and regulators, as well as the shifting public perceptions as to what conduct is appropriate and what is not, any entity or individual participating in any kind of election activity must be advised of applicable laws. Activity that before was generally viewed as little more than a misunderstanding of the technical requirements of election, campaign finance and ethics laws is now often viewed by federal and state administrative and law enforcement agencies and regulators as more serious misconduct.
We have a breadth of experience in ensuring full compliance with elections, campaign finance and ethics laws. Our lawyers have substantive knowledge in those state and federal laws that regulate elections, campaign finance and ethics activities. In addition, election, campaign finance and ethics lawyers regularly draw upon the expertise of lawyers in other practice areas throughout the firm, such as tax, business, civil litigation, white-collar defense, political advertising and telecommunications.
You benefit from our multioffice, one-firm approach to serving the interests of clients, where our geographic diversity and breadth provides us with the ability to access the various agencies in the wide variety of jurisdictions that enforce these laws.
Advice on Campaign Finance Activities and Establishing and Administering Political Action Committees (PACs) Corporations, trade associations, businesses and individuals are seeking ways to participate in the political and governmental process, particularly following the recently enacted Bipartisan Campaign Reform Act of 2002 (BCRA). The new campaign law contains the most significant changes to federal election activity since the mid-1970s. Participation by individuals and PACs in the political process is now more crucial than ever since campaign finance reform has diminished the role of soft money and the enhanced the role of raising hard dollars through PACs. Holland & Knight can assist a corporation or other entity with establishing a federal or state PAC, and provide ongoing advice about how the PAC should conduct its activities and fulfill all of its reporting obligations.
In light of the relationship between the political process and public policy decision-making and the impact those public policy decisions have on individuals, industries and businesses, campaign finance participation often goes hand-in-hand with a federal or state legislative advocacy strategy. In order to ensure that those highly scrutinized political activities fully comply with the letter and spirit of the law, we advise clients on all provisions of the Federal Election Campaign Act, state election laws and other related laws. Clients are advised on the appropriate ways to participate in federal and state elections, including limits that apply to contributions and contributions-in-kind, proper fundraising for a candidate, expenditure issues, reporting requirements and a myriad of other possible campaign-related activities. Campaign finance activity, which is inconsistent with applicable laws, whether intentional or inadvertent, can lead to civil and criminal penalties and severe public affairs/public relations difficulties.
Compliance with State and Federal Ethics/Conflict of Interest Laws
Virtually every jurisdiction in the country has a statutory and regulatory framework that governs interactions between public officials and the private sector. Doing business with the government, common for most industries, requires understanding of the laws and regulations pertaining to the interaction with and entertainment of public officials and restrictions on participating in matters involving public agencies and officials. We have substantial experience in advising both the private sector and public officials regarding requirements of complying with the law, as well as in defending entities and individuals in what are often high-profile enforcement actions in these areas.
Defending Against Elections, Campaign Finance and Ethics Enforcement Actions and Prosecutions
Holland & Knight represents clients who are or who may be subject to civil or administrative enforcement proceedings brought by the federal and state regulatory agencies that administer and enforce the elections, campaign finance and ethics laws. In addition, our experience in the defense arena extends to defense against criminal prosecutions, including grand jury investigations, subpoenas, immunity agreements and persuading prosecutors that a criminal prosecution is simply not appropriate.
Ballot Question Activities
Ballot questions in which public policy issues are voted on directly by citizens have been utilized extensively in most states. Formally known as initiative and referendum petitions, these measures create a number of complex issues for corporations, other entities and individuals who wish to participate in the process. From the organization of the effort, to the activities of proponents and opponents, and to those who want to participate through contributions of services or financial support, there are a number of traps for the unwary. We have represented numerous ballot-question campaigns, advising both proponents and opponents on these questions.
In many states, the question itself must comply with constitutional and administrative requirements and requires certification from the state Attorney General. This is frequently where opponents of a ballot effort will launch their first legal challenge. We have extensive experience working with state Attorney Generals and other administrative agencies at this stage of the process.
Requirements vary from state to state, but to put a question on the ballot usually requires the signatures of tens of thousands of registered voters. Signature collection is fraught with peril as unregistered voters, duplicate signatures, forgeries and misprinted, mislabeled or misfiled signature sheets are subject to legal challenge. Strong legal efforts have invalidated enough signatures to knock a question off of the ballot before a vote can even take place. Strong defenses to such challenges have preserved the ballot questions. We have extensive experience representing proponents – defending against a signature challenge – and opponents – successfully challenging signatures to eliminate a question from appearing on the ballot.
The formation of a political committee and the filing of campaign finance reports generally is required for any corporate or organizational participation in a ballot question campaign. Even seemingly inconsequential expenditures or public comments can be deemed participation in a campaign and trigger regulatory inquiries. Contracts with consultants, vendors and employees often must be negotiated. Copyright and trademark issues frequently arise in the context of political advertising; litigious campaigns, industries, organizations or even individuals may launch charges of defamation or election fraud.
Both the Communications Act and Federal Communications Commissions Rules impose specific sponsorship identification and other disclosure requirements with respect to all advertising concerning important public issues. Our communications lawyers are highly experienced in dealing with such issues.
Both nonprofit and for-profit entities have wide latitude to participate in ballot question elections. However, the Internal Revenue Service places a variety of restrictions on political expenditures by nonprofit organizations. Careful regulatory analysis will prevent the wise nonprofit entity from endangering its tax-exempt status. Our tax lawyers can provide important advice in this area.
Voting Rights, Ballot Access and Recounts
Our lawyers have participated in important litigation involving the Federal Voting Rights Act and related state laws. We have worked extensively to ensure fair and reasonable requirements for voting and ballot access.
Recounts, which are so crucial to candidates as well as voters, are playing an increasingly important role in elections. We have represented candidates and political parties in recounts and related matters at all levels, beginning with local administrative officials and eventually moving into state and federal courts.
Political Advertising on Radio and Television
Holland & Knight lawyers do a great deal of work advising candidates, advertising agencies, radio and television clients concerning all of the issues that arise under the political broadcast provisions of the Communications Act. These issues include permissible charges to candidates, equal opportunities, rights of candidates, federal candidates’ rights to reasonable access to broadcast stations and related matters such as structuring political debates.
Federal Tax Advice Regarding Political Activities
Our tax lawyers regularly counsel both federal and state PACs and other types of political organizations regarding the extent to which their revenues are exempt from the federal income tax and the extent to which their revenues are subject to tax. Our tax lawyers also regularly advise such organizations regarding the various filing requirements imposed by the Internal Revenue Service, including the requirements to periodically report contributions received and expenditures made that were revised as recently as late 2002.
Our tax lawyers also regularly counsel trade associations and other types of tax-exempt organizations, including Section 501(c)(4) social welfare organizations, regarding their political activities. We are very knowledgeable about the tax consequences to such organizations when they choose to conduct their political activities directly, rather than through a separately-formed PAC. We frequently advise such organizations regarding the effect of their political activities upon the deductibility of the dues paid by their members.
In addition, our tax lawyers regularly advise individuals and businesses regarding the restrictions on deducting the costs of their political activities and the rules for allocating various expenses between political activities and other activities.
Lastly, our tax lawyers regularly advise nonprofit organizations, businesses and individuals regarding what activities are classified as "political" by the Internal Revenue Service and what activities are not so classified. We are familiar with the tax law governing the sponsorship of candidate debates and forums and the rules that apply to other types of voter education activities. We have also provided advice regarding the tax ramifications of various types of participation in ballot questions.