This week, world leaders from 32 countries are descending on Washington, DC for the North Atlantic Treaty Organization’s (NATO) 75th anniversary summit. Whenever world leaders gather in one place, there will be many add-on meetings outside of the formal event at the Washington Convention Center. Lobbyists, public affairs firms, and nonprofits involved on the sidelines of the summit need to be alert because they may unwittingly walk into a Foreign Agents Registration Act (FARA) minefield.

Under FARA, those who agree to engage in certain political activities on behalf of foreign government officials must register and file reports with the Department of Justice as foreign agents. The Department of Justice’s recent—and aggressive—enforcement of this nearly 100-year-old statute has put many in Washington who work with international clients on edge.

FARA Covers Uncompensated Activity and Even Requests to Set up Meetings

FARA is vague and broad. Many are surprised to learn that one can become a foreign agent simply by agreeing to a request from a foreign government official—even if there is no contract and no payment. Unlike for the federal Lobbying Disclosure Act, payment is not a prerequisite. What is more, there is no threshold for registration, or exception for de minimis activity. A single act—be it a phone call, email, or meeting—can be enough to trigger registration.

The Department of Justice interprets political activity very broadly—well beyond the ordinary meaning of the term. Relevant to the summit, arranging meetings between foreign government officials and U.S. government officials can be “political activity,” as can advising a foreign government on their engagement strategy with U.S. government officials, even if you do not accompany the foreign officials in their interactions.

FARA does not apply just to acting on behalf of America’s adversaries. Acting on behalf of our NATO allies is covered too.

FARA Registration Triggers Lurk on the Sidelines of Major International Political Meetings in DC

FARA is not intuitive. Thus experienced government affairs experts may unwittingly find themselves in a situation surrounding the NATO summit in which FARA registration is a real possibility.

For example, suppose you work at a public affairs firm and an old college friend of yours is coming to DC for the summit. Your friend asks you for a favor because he knows you used to work on Capitol Hill. Can you help him set up some meetings between his boss—a senior foreign government official—and some members of Congress while they are in town for the summit? You agree. By doing so, you may very well have triggered an obligation to register under FARA.

Or let’s say you are a military analyst at a nonprofit. A foreign military official who reads your work has a request for you. They want some advice about setting up a meeting with U.S. defense contractors and DOD officials while they are in town so they can talk about military procurement. You agree to the request. Is FARA triggered?

If you are being paid by a foreign government, the analysis is simple: You are a foreign agent. But the terrain is less certain when a foreign government asks you for an uncompensated favor or makes a specific request as in the examples above.

As we have seen with other conferences involving world leaders held in DC, FARA triggers are lurking on the sidelines. Knowing about these FARA risks is only half the battle. Successfully navigating them is the other.

For many years, supporters of a candidate or a cause simply wrote a check and asked friends and colleagues to do the same. But the opportunities to influence elections and public policy have evolved significantly, allowing today’s high-net-worth individuals and family offices to better maximize political influence, while balancing those gains with financial goals and reputational interests. Yet with new opportunities come new risks. Laws vary significantly from one jurisdiction to another, and as some regulators make frequent changes, others work from arcane laws that do not speak to modern practices in business, wealth planning, philanthropy, or campaigning. Violations, even if inadvertent, can result in financial penalties, legal liability, reputational risk, and loss of business. This advisory describes some of the important considerations for donors before engaging in the electoral process and steps they can take to help ensure they stay compliant.

Starting this July, Maryland’s “pay-to-play” law, which requires public contractors to file campaign contribution disclosure reports with the State Board of Elections, will require for the first time that local government contractors disclose their beneficial owners while streamlining such reporting for state contractors. The law hands authority to the state election board to impose penalties on contractors who fail to disclose their beneficial owners and will likely increase public scrutiny of ties between political contributions and the award of public contracts.

Under current law, all organizations that have a single contract with the state, county, or other political subdivision of the state with a total value of at least $200,000 must register with the State Board of Elections and, for as long as they hold government contracts, file semi-annual reports disclosing certain political contributions made by the contractor, its principals, and, if it has one, its affiliated political action committee. Separately, under Maryland procurement law, contractors with state agencies must file reports with the Secretary of State identifying each person who has “beneficial ownership” of the contracting entity, defined as:

Continue Reading Changes to Maryland Pay-to-Play Law Will Expand Reporting Obligations, Boost Public Scrutiny of State Public Contractors

As summer draws near, the tempo of the planning and fundraising for the DNC and RNC national party presidential nominating conventions is increasing. After the challenges and disruptions of the COVID-19 pandemic in 2020, both parties are eager for a return to robust in-person attendance. For corporations, trade associations, and other nonprofit organizations seeking to host events or to provide support for the conventions, understanding the legal guardrails is essential.

House and Senate Gift Rules Apply to the Conventions

There is no special gift rule exception for convention events. All events to which federal legislators and congressional staff are invited must comply with House and Senate gift rules. Convention event planners and sponsors should be particularly mindful of the following events and items that the gift rules expressly allow:

Continue Reading A Guide to Supporting the 2024 Presidential Nominating Conventions: From Hosting Events to Writing a Check

The Federal Election Commission has issued an advisory opinion making it much easier for federal candidates to offload their paid canvassing programs onto state PACs, nonprofits, and super PACs. While the campaign will need to pay for access to data collected, outside groups can now coordinate their canvassing activities—including the content of messages that expressly advocate for the election or defeat of federal candidates—with the candidates themselves.

In the request, a state political committee proposed hiring vendors to canvass potential voters before the election and distribute literature that would expressly advocate for the election or defeat of both state and federal candidates. The committee planned to “coordinate” its canvass by collaborating with federal candidates on aspects like strategy and messaging. Was this, requestors asked, an in-kind contribution to the federal candidates that a state committee like this one is prohibited from making? To this, the Commission answered no.

Continue Reading FEC Allows Nonfederal Committee to Coordinate Paid Canvassing Efforts with Federal Candidates

As campaigns explore new ways to harness artificial intelligence, regulators are rushing to keep pace ahead of the 2024 elections. The explosion in generative AI has put pressure on lawmakers and advertising platforms alike to stay ahead of deepfakes, voice clones, and other political advertising that may deceive voters or spread misinformation, all while balancing the promise of “friendly” applications that increase efficiency and affordability in campaign tools.

But regulating AI in political communications poses unique challenges. What qualifies as deceptive advertising? Can deceptive uses of AI be banned, given the First Amendment’s special protections for political expression? Who is regulating AI-generated political ads, and who is responsible for enforcing any controls? Do advertising platforms have a role in policing the content?

Venable’s Political Law Practice Group is monitoring ongoing efforts to regulate AI in political advertising at the federal, state, and industry levels. The following highlights some of these efforts and the emerging trends.

Continue Reading Synthetic Content, Real Regulations: Regulation of Artificial Intelligence in Political Advertising

Is a phone call that uses artificial intelligence to imitate a real person “an artificial or prerecorded voice,” subject to the restrictions of the Telephone Consumer Protection Act? The Federal Communications Commission unanimously answered yes in a recent declaratory ruling, foreclosing creative arguments that a “voice clone” is a live call and not an artificial voice subject to the nearly 35-year-old law. The decision, which comes just weeks after thousands of New Hampshire voters reportedly received robocalls impersonating President Biden’s voice urging them not to vote in the state’s primary, has important implications for use of the burgeoning technology in the 2024 elections.

As campaigns and their supporters experiment with new uses for AI technology, the FCC’s declaratory ruling immediately extends existing protections of the TCPA to AI-generated calls, such as those pretending to be a candidate, surrogate, or other voice trusted by the recipients. The ruling will immediately require callers that use AI technologies to simulate human voices to obtain the express consent or express written consent of recipients before calls are placed to residential or wireless numbers, unless an emergency purpose or TCPA exemption applies. AI-generated calls will also need to provide certain identifying information about the party responsible for placing the calls and offer certain opt-out rights.

Continue Reading Citing Upcoming Elections, FCC Extends TCPA to Cover AI-Generated Content

Eyeing the prospect of candidate “deepfakes” in the 2024 elections, the Federal Election Commission has joined the debate on artificial intelligence (AI), voting unanimously at its August 10 meeting to move forward with a rulemaking on deceptive campaign ads.

The rapid acceleration of generative AI has raised questions about how the technology could be deployed to mislead voters, for example, by creating video or audio of a candidate saying something damaging they never in fact uttered. With these questions in mind, the Commission voted to ask the public for comment on whether the agency should initiate a formal rulemaking to ban “deliberately deceptive Artificial Intelligence campaign ads,” often referred to as “deepfakes.”

Continue Reading Federal Election Commission Seeks Comments on AI in Campaign Ads

New Jersey has overhauled its pay-to-play and campaign finance laws, dramatically changing the rules for government contractors, nonprofits, and individual donors. The passage of the Elections Transparency Act has been accompanied by considerable controversy, including litigation and the resignation of all four members of the New Jersey Election Law Enforcement Commission (ELEC). In the meantime, some provisions have already taken effect. Others are slated to take effect after the June 2023 primary and apply to the 2023 general election and future elections.

Here are the most important things to know.

Pay-to-Play

Since 2006, New Jersey’s complex state pay-to-play law has barred contributions over $300 by companies and nonprofits bidding for, or under contract with, state agencies, including colleges and universities. The contribution ban applies not only to bidding and contracting entities, but also to their principal owners, officers and directors, and even their spouses.

Over the years, New Jersey’s pay-to-play law has ensnared dozens of government contractors, resulting in disqualified bids and voided contracts. Adding to the compliance burden, the prior state law permitted local governments to enact their own pay-to-play laws provided they were at least as stringent as the state law. Dozens of localities adopted such ordinances. This patchwork of pay-to-play laws has drawn criticism from government contractors as well as ELEC’s executive director who has called the state pay-to-play regime “convoluted and complicated,” and cited its “stunning inconsistency.”

Continue Reading New Jersey Overhauls Pay-to-Play and Other Campaign Finance Laws

The Federal Election Commission (FEC) has announced new contribution limits for the 2023-2024 election cycle. The FEC indexes certain contribution limits for inflation every two years. In recent cycles, limits have increased by $100 each cycle, but following high rates of inflation over the past two years, the FEC substantially increased several contribution limits this cycle.

Individuals may now give each federal candidate $3,300 per election, up from the previous limit of $2,900. The primary and general elections are considered separate elections, so an individual may now give a total of $6,600 per candidate, per cycle. Per-election limits are in effect for the two-year cycle beginning the day after the general election and ending the day of the next general election (November 9, 2022 to November 5, 2024).

Continue Reading Federal Election Commission Announces Significant Increases to Contribution Limits Adjusted for Inflation for 2023-2024 Cycle