As states across the country finalize and certify the results of the 2020 general election, President-elect Joseph R. Biden and Vice President-elect Kamala D. Harris have begun preparing to assume control of the executive branch on January 20. The Biden-Harris Transition Team has already assembled and dispatched agency review teams to survey and report on the current organization and priorities of the various executive branch agencies. And while it remains unclear how traditional Inauguration Day festivities will be affected by the ongoing Covid-19 pandemic, President-elect Biden’s yet-to-be-organized Inaugural Committee will be responsible for planning and funding any official Inauguration Day parades or galas or any other official events.
As this new chapter of American government unfolds, many individuals, companies, and nonprofits are no doubt interested in reaching out to the Biden-Harris Transition Team and the Biden Inaugural Committee. This short alert sets out high-level guidelines regarding interactions with both the Transition Team and the Inaugural Committee. If you have any questions about these topics, please contact a member of our Political Law Group.
I. Guidelines for Interacting with the Biden-Harris Transition Team
To ensure “continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal Government” during a transfer of power to a new administration, the Presidential Transition Act (PTA) requires the federal government to provide a transition team established by the president- and vice president-elect with office space, support, and funding for transition-related activities.
Pursuant to the PTA, the Biden-Harris Transition Team (the “Transition Team”) is organized as a legal entity separate and distinct from both the Biden for President campaign committee (the “Campaign”) and President-elect Biden’s yet-to-be-organized Inaugural Committee (the “Inaugural Committee”). Specifically, the Transition Team has been incorporated under Delaware law as PT Fund, Inc., a 501(c)(4) nonprofit corporation. The Transition Team is staffed by a combination of full-time transition employees, detailees from federal agencies, and volunteers. A list of the Transition Team’s co-chairs and advisory board members, as of September 28, is available here. Similarly, a list of Transition Team members assigned to the various agency review teams is available here. All Transition Team members (including volunteers) will be publicly disclosed, including their most recent employment and sources of funding, if any, that support their transition activities.
A. Funding the Transition Team’s Efforts
Although the federal government provides certain financial support for the Transition Team’s activities through appropriated funds, the PTA also permits the Transition Team to accept donations of up to $5,000 from any person, organization, or entity for transition-related expenses.
While there is no legal ban on corporate donations to a duly organized transition organization, the Transition Team has announced that it will not accept donations from PACs, corporations, unions, federal government contractors, national banks, those registered as federal lobbyists or under the Foreign Agents Registration Act, SEC-named executives of fossil fuel companies, or foreign nationals. All donations to support transition activities, regardless of amount, must be itemized and publicly disclosed within 30 days after the inauguration.
B. Interacting with Members of the Transition Team
While interactions with members of the Transition Team can be a valuable tool for learning more about the incoming administration, individuals and entities doing so should keep in mind the potential applicability of federal and state lobbying laws. Generally, communications with the Transition Team will not be considered “lobbying” for purposes of the Lobbying Disclosure Act (LDA). However, if someone working on the Transition Team is currently a member of Congress or a congressional staff member, or a federal executive branch official (it is unlikely that those assigned to the transition would be in the category of covered officials) assigned to the Transition Team, a communication with such individual may be considered “lobbying” for LDA purposes.
Individuals and entities interacting with the Transition Team should also keep in mind several relevant provisions of the Ethics Plan and Code of Ethical Conduct adopted by the Transition Team, which impose additional obligations upon Transition Team members beyond those set by the PTA. Specifically:
- Conflicts of Interest. Transition Team members may not participate in transition matters they know may directly conflict with a personal financial interest or a financial interest of an immediate family member, or any individual or organization with whom they have had a business relationship within the past 12 months. Even if there is no direct conflict, transition team members are required to consult the Transition Team’s general counsel concerning any appearance of a conflict. Similarly, any Transition Team members who have engaged in lobbying activities regulated by the LDA within the previous 12 months or who intend to do so in the subsequent 12 months are disqualified from participating in any specific transition matters on which they have lobbied or intend to lobby.
- Gifts. As with many White House officials, members of the Transition Team are prohibited from soliciting or accepting any money or thing of value as an inducement, reward, or thank-you to influence in any way the Biden-Harris Transition Team’s operations or decisions (including gifts from anyone nominated for or seeking a federal job or appointment and any person or organization that conducts activities regulated by or pending before an agency or department within the scope of the Transition Team member’s transition responsibilities).
- Nonpublic Information. Transition Team members must safeguard nonpublic information they learn during their transition duties and must use such information exclusively for transition purposes. Transition Team members may not use such information, either during or after the transition, for personal or private gain for themselves or any other party.
- Stock Trading. To avoid insider trading concerns, Transition Team members (along with their spouses and minor children) are prohibited from selling any stock during their performance of transition duties without advance approval of the general counsel of the Transition Team. In any event, such sales may not be based on nonpublic information derived from a government source.
II. Guidelines for Interacting with the Biden Inaugural Committee
Federal law permits the president-elect to appoint a committee to assume control over the presidential inaugural ceremony and connected events and activities. Like the Transition Team, President-elect Biden’s Inaugural Committee would be organized as a legal entity separate and distinct from the Biden/Harris campaign and the Transition Team. Although the scope and status of traditional Inauguration Day festivities have yet to be settled in light of the ongoing COVID-19 pandemic, the Inaugural Committee – once established – would be responsible for the planning and execution of any official Inauguration Day events.
Unlike the Transition Team, the Inaugural Committee will not receive congressional appropriations. However, Inaugural Committees are permitted to accept unlimited donations from U.S. citizens, lawful permanent residents, and domestic corporations. Foreign nationals, as defined by the Federal Election Campaigns Act and the Federal Election Commission’s regulations, are prohibited from making any donations to Inaugural Committees. While some presidents-elect choose to adopt additional limitations beyond those provisions, President-elect Biden has not announced an intent to do so as of November 12. Given the Transition Team’s decision to limit donations by certain categories of individuals and entities beyond limitations set by statute, it seems likely President-elect Biden’s Inaugural Committee would adopt similar limitations.
For donations of money or things of value worth more than $200 in the aggregate, Inaugural Committees are required to disclose donors’ names and addresses, as well as the date and the amount of such donations. Similarly, individuals or organizations registered under the LDA must disclose all donations to inaugural committees on their LD-203 forms for the relevant time period. In the past, this has often been overlooked and reported on by the press, so care should be taken that processes are in place to capture this information for the LD-203 reports filed in either January or July, depending on when the contributions are made.
Individuals and entities who obtain tickets to events taking place on or around Inauguration Day often distribute those tickets to partners and clients as a courtesy. While it is generally permissible to do so, special care should be taken before giving such tickets to current government officials (whether federal, state, or local), to ensure compliance with applicable gift rules and exceptions. This is especially true for incoming members of the Biden administration, who may become subject to executive branch gift rules on Inauguration Day.
Similarly, individuals and entities covered by SEC, state, and local pay-to-play laws should ensure any contributions made to any PACs or nonprofit entities to support gala fundraisers, policy meetings, or other events on or around Inauguration Day will not be used to fund political contributions that could unwittingly disqualify them from securing future government contracts or representations.