Now is a Good Time to Conduct a Government Affairs Status Check
As control of the U.S. House of Representatives shifts to Democrats during the next Congress and we enter the presidential election cycle, now is a good time for entities that regularly interact with the federal government to assess their government affairs activities – both internal and external – to ensure effectiveness and compliance with federal, state, and local campaign finance, lobbying, and ethics laws.
House Democrats have already made clear they plan to conduct vigorous oversight into the Trump Administration and the entities that interact with it. A normal first phase of this oversight will be a review of public sources, including the Lobbying Disclosure Act (LDA) database, the Foreign Agents Registration Act (FARA) database, the Federal Election Commission (FEC) database, Forms LLL, participation in federal advisory boards, Internal Revenue Service Form 990s, trade association affiliated entities (either in LDA filings or posted on a website), Federal Communications Commission public files, congressional testimony, comments filed in connection with agency rulemakings, and media and other public statements. The second phase of this oversight will likely include requesting or subpoenaing non-public information, such as emails, documents, financial information, agency visitor logs and other records related to advocacy or political activity. The final phase of this oversight will include new testimony – public or private, requested, or compelled.
Compliance Best Practices
Aside from issues related to congressional oversight, it is considered a best practice to perform an audit or legal review of all campaign contributions at the conclusion of each two year federal election cycle. Likewise, it is also considered a best practice to perform a periodic review of all LDA records.
Increased DOJ Interest
Undisclosed or improperly disclosed lobbying and political activity by foreign nationals has been a subject of intense Justice Department scrutiny lately. Likewise, recent court cases have mandated the disclosure of previously undisclosed political activity. In addition, lobbying activity has at times involved improper payments or kick-backs that often go undetected. Keep in mind that violations of federal campaign finance, lobbying and ethics laws are often uncovered through unrelated investigations – often unrelated litigation, whistleblowers, or inspectors general investigations.
Scope of Review
Accordingly, between now and the end of the year, entities that are active in Washington should consider performing a review that includes the following:
- Relevant public filings and records
- Relevant policies and procedures, as well as internal records relating to political law compliance
- Contributions or dues payments to third-party groups
- Contracts with outside lobbyists and political consultants
- Records relating to recent or prospective hires of former government employees or officials
Holland & Knight is well suited to provide advice related to efficient government relations operations and ensuring compliance with federal, state, and local campaign finance, lobbying, and ethics laws. Our Political Law practice is seamlessly integrated with our Public Policy and Regulation Group, and our Political Law team members have deep experience helping clients ensure their government relations activities are effective, comply with the law and minimize the risk for reputational harm.