January 14, 2019

Reform on the Agenda: Recent Political Law Developments in Washington, D.C., Boston and New York

Holland & Knight Political Law Blog
Samuel Brown | Charles E. Borden | Christopher DeLacy | Andrew H. Emerson

H.R. 1, the first bill introduced by the Democratic leadership in the House of Representatives, focuses largely on reforms to the political process, including changes to the redistricting process, structural reform for the Federal Election Commission, and an emphasis on anti-corruption and ethics. While this focus may signal a renewed emphasis on these issues in Washington, for the moment the reform momentum remains at the state and local level. A number of significant political law reforms have been enacted in recent months, and even more significant changes appear to be on the horizon.

In this post, we focus on three of the most notable political law developments at the state and local level—including expanded lobbying laws in Washington, D.C. and Boston, as well as wide-ranging campaign finance proposals in New York State.

Washington D.C. Expands Its Lobbying Law to Include Procurement Lobbying

First, the District of Columbia recently made a number of changes to the D.C. lobbying law. Most significantly, the new law greatly expands the scope of covered lobbying activities to include a range of procurement-related contacts.

  • Prior to the amendments, D.C. law defined "lobbying" as communicating directly with any official in the legislative or executive branch of D.C. government for the purpose of influencing any legislative or administrative decision. Before the recent amendments, the term "administrative decision" was limited to rulemaking and generally-applicable policy decisions.
  • The revised law defines "administrative decision" to include actions by D.C. executive branch officials and employees to "make any contract, grant, reprogramming, or procurement of goods or services."
  • The D.C. lobbying law includes a relatively limited set of exceptions, including the following: (i) written testimony presented by a person on his or her own behalf; (ii) information supplied in response to written inquiries; (iii) inquiries as to the status of an action; and (iv) Testimony on the public record.

The revisions to the Washington, D.C. lobbying law are currently in effect. Under the revised law, a person can trigger lobbyist registration in D.C. by receiving $250 or more in compensation (including salary) in any period of 3 consecutive months for lobbying, including procurement-related contacts with the D.C. executive branch. Additional changes include a reworking of the reporting schedule from semiannual to quarterly and provisions requiring lobbyists to report additional information, including information about campaign contributions.

Boston Adopts New Lobbying Law With Low Registration Threshold

Previously, the city of Boston had a very narrow lobbying law, that applied only in limited circumstances. The Boston City Council recently adopted a new lobbying law, effective April 13, 2019. The new Boston lobbying law is strikingly broad, with a very low registration threshold. Significantly, it applies both to procurement activities and to a range of real estate-related contacts, and has only a limited set of exceptions.

  • The new law includes a broad definition of "lobbying." Notably, the definition encompasses procurement contacts. Specifically, the definition of "lobbying" includes any attempt to influence a decision by an employee of the city "with respect to the procurement of goods, services or construction." This includes the preparation of contract specifications or the award of a contract. The definition also includes a range of other subject areas, including certain contacts related to real estate development.
  • The City law includes a number of exceptions to the definition of lobbying, including: (i) requests for a meeting or for the status of a matter; (ii) written responses to written requests for specific information; (iii) communications made in adjudicatory proceedings or evidentiary proceedings; (iv) applications for non-discretionary permits or licenses; and (v) responses to a request for proposals.

Lobbyists are required to register within 10 days of being retained, employed or designated to engage in lobbying. Importantly, the Boston lobbying law does not include a threshold for lobbying registration—as drafted, it appears that a single lobbying contact is sufficient to trigger registration. The law establishes a lobbying commission that will have authority to draft regulations related to the law, and it is possible that the commission will adopt a registration threshold through regulation.

Campaign Finance Reform on the Agenda in New York State

Campaign finance reforms have also been on the agenda in New York State, where the legislature introduced a package of reforms today that have the potential to significantly alter how New York campaigns are financed. These reforms build on Governor Cuomo's "2019 Justice Agenda," outlined last month. While the Agenda covers a range of topics (including proposals on rent regulations and affordable housing), it includes a number of campaign finance proposals.

These include closing the "LLC loophole"—based on a longstanding New York State Board of Elections precedent—under which LLCs were treated as individuals for campaign finance purposes, and were subject to much higher contribution limits than other corporate entities. The new proposal, which would go into effect seven days after being signed into law, would also require disclosure of all direct and indirect owners of an LLC that makes campaign contributions, and would require that any contributions be attributed to each member in proportion to each member's ownership interests. Given changes in the state legislature, we anticipate that these reforms are significantly more likely to become law than prior proposals. We will continue to track these developments, and will provide a more extensive analysis if and when the proposals become law.

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