When the 2017 tax reform bill passed, it included a provision that imposed an excise tax on compensation above $1 million for certain kinds of entities—including political action committees (PACs)—even if paid by the connected organization and not the PAC itself. Some companies feared that having senior executives provide services to the PAC could trigger this excise tax based on how the statute was worded. Fortunately, on June 5, 2020, the Internal Revenue Service issued proposed regulations providing guidance on this provision that will reduce the risk that the excise tax will apply.

Background on Proposed Regulations and Application to Company PACs

Section 4960 of the Internal Revenue Code, included as part of the 2017 Tax Cuts and Jobs Act, imposes an excise tax equal to the corporate income tax rate (currently 21%) on compensation above $1 million paid by a tax-exempt organization (including a PAC exempt from federal income tax under Section 527) to any of its five highest‑compensated employees (i.e., the “covered employees” whose compensation is potentially subject to the excise tax).  A company‑sponsored PAC typically does not have its own employees.  Instead, employees of the sponsoring company provide services to the PAC without receiving compensation from the PAC.  Because Section 4960 applies to compensation paid by a PAC’s “related organization” (including the sponsoring company), some commentators expressed concern that the compensation of company executives that serve as officers of the company PAC would be subject to the excise tax and some companies reportedly dissolved their PACs due to concerns about the excise tax.  The proposed regulations provide clarity and relief for companies and their connected PACs.

Relief Provided by the Proposed Regulations for Company PACs

The proposed regulations provide an important exception permitting a PAC to exclude certain employees when identifying the PAC’s covered employees.

Pursuant to the “nonexempt funds” exception, companies can be assured that no excise tax will apply if (a) the PAC does not pay the highly-compensated employees’ wages or reimburse the company (directly or indirectly) for the highly-compensated employees’ pay and (b) the highly‑compensated employee does not spend 50% or more of her or his time providing services to the PAC.  Because PACs typically do not pay direct compensation to employees or reimburse the sponsoring company for the time company employees spend providing services to the PAC, the nonexempt funds exception will be useful to a large contingent of companies whose executives serve part-time in officer roles with the connected PAC.*

To illustrate the nonexempt funds exception, consider the following example:

Company and Connected PAC – Donated Services of Government Affairs Employees

The executive vice president of external affairs of a company receives compensation of more than $1 million from the company.  The EVP also serves as the chair of the company-sponsored PAC.  In her capacity as such, the EVP spends approximately 5% of her time on PAC matters and the remainder on other matters.  The EVP is not compensated by the PAC and the PAC does not reimburse the company for the portion of the vice president’s time devoted to the PAC or pay a fee to the company for the services of other company employees.  Pursuant to the nonexempt funds exception, the EVP does not constitute a “covered employee” of the PAC.  Thus, the compensation the EVP receives from the company is not subject to excise tax under Section 4960.  Other company employees that spend less than 50% of their time on PAC matters will similarly be disregarded for purposes of determining the PAC’s covered employees.  To the extent certain company employees (such as a PAC administrator) spend 50% or more of their time on PAC matters, such employees would not be disregarded for purposes of determining the PAC’s covered employees.  However, unless such employees receive more than $1 million of compensation from the company, their compensation will not trigger excise tax.

The conclusion is that the nonexempt funds exception in the proposed regulations should provide welcome relief to many companies whose highly-compensated employees serve as officers of a connected PAC. If you have questions about the proposed regulations, please reach out to Venable’s Political Law Practice.

* The proposed regulations also contain a “limited hours” exception whereby an individual will not be counted as a “covered employee” that potentially triggers the Section 4960 tax if the individual is not paid by the tax-exempt entity, and either provides no more than 10% of their hours of service to the tax-exempt entity or performs at most 100 hours of service per year for the tax-exempt entity. 

“It’s déjà vu all over again”

With the announcement last week that Commissioner Caroline Hunter (R) plans to resign her seat on the Federal Election Commission (FEC), effective July 3, 2020, the agency finds itself yet again without the minimum four Commissioners necessary to open investigations, defend new lawsuits, and issue advisory opinions. As we blogged recently, the Commission went nearly nine months without a quorum until the confirmation last month of Commissioner James E. “Trey” Trainor.

The White House apparently expected Hunter’s resignation. Within just a few hours of her announcement, the White House announced its intent to nominate Allen Dickerson, the legal director of the Institute for Free Speech, as Hunter’s replacement. No timeline on beginning the confirmation process has been announced.

Since the FEC’s quorum was restored, the Commission has held one public meeting—approving a variety of routine matters, including several advisory opinions and a request to seek comment on whether the Commission should initiate a rulemaking. The Commission also met in executive session, where Commissioners discuss pending enforcement actions, litigation, and other confidential matters. The Commission is currently scheduled to meet again in executive session Tuesday and Thursday this week, which will be the last meetings before a quorum is lost again.

Venable’s Political Law Group represents clients before the Federal Election Commission and helps clients comply with FEC rules and regulations. 

After a great deal of whipsawing as the rules flipped back and forth, politically-active nonprofits now have certainty from the IRS: section 501(c)(4) and 501(c)(6) organizations will not have to disclose the identity of their donors on their annual Form 990 filing with the IRS. However, some states are already beginning to require this information separately, and others may soon follow suit.

On May 26, 2020, the IRS issued final regulations on donor disclosure providing that social welfare organizations under section 501(c)(4), professional and trade associations under section 501(c)(6), and many other types of organizations required to file a Form 990 series return are no longer required to disclose their large donors ($5,000 or more) on Schedule B of the Form 990. The major exceptions are section 501(c)(3) organizations and section 527 political organizations, both of which are subject to statutory requirements for donor disclosure that the IRS could not waive.

These final regulations adhere closely to the proposed regulations released on September 6, 2019. The proposed regulations in turn followed previous guidance from the IRS that was overturned by a federal judge after the states of Montana and New Jersey challenged it on procedural grounds, as discussed in our prior alert.

Many commentators viewed the original IRS guidance as facilitating the use of undisclosed donations for political purposes, including contributions from foreign nationals which are prohibited in connection with federal, state, and local elections. These concerns with so-called “dark money” spurred two states to challenge the rules in federal court. When the proposed IRS regulations were subsequently issued, the attorneys general of nineteen states plus the District of Columbia filed comments opposing the regulations, on the grounds that states need Schedule B information for purposes related to state tax administration, enforcement of state campaign finance laws, and enforcement of state consumer protection laws. On the other hand, eleven state attorneys general filed comments asserting that states would not be negatively impacted by the proposed regulations.

In the preamble to the final regulations, the IRS responded that states may not use federal tax information for enforcement of state campaign finance or consumer protection laws. It further stated that:

“To the extent that any state determines that the burdens of collecting and maintaining such information are justified by its own needs, such a state is free to require reporting of such information to the state and to maintain the information at the state’s own expense.”

Nonprofit organizations should expect the states to take the IRS up on that invitation to adopt their own reporting requirements. Following the IRS’s proposed regulations, New Jersey amended its regulations to require charitable organizations registered with the state to submit a copy of the organization’s most recent Form 990 with a completed Schedule B, even though the organization is not required to file Schedule B with the IRS. It is actively reaching out to organizations, including 501(c)(4) organizations, that have simply provided their federal Form 990, which did not require that information, and requesting that a completed Schedule B be submitted. If organizations refuse to provide the contributor information, New Jersey has thus far proved unwilling to renew the organization’s registration to solicit contributions in the state.

Similarly, New York recently passed the state’s 2020-2021 budget legislation, which has used the requirements for 501(c)(3) donor disclosure to find a “back door” into donor disclosure for 501(c)(4) organizations by requiring a completed Schedule B to be filed by certain charitable organizations registered with the state that engage in lobbying or other reportable covered communications if the organization is not otherwise required to file a completed Schedule B with the organization’s annual financial report. The law also directs the state to review all reports filed to determine whether the organization’s spending is inconsistent with the organization’s charitable purposes. Both New Jersey and New York have stated that donor information submitted will not be made public.

These differing state rules, which are likely to increase, are a trap for the unwary. Nonprofits active nationally (other than 501(c)(3) and 527 organizations) may well now have to prepare two versions of their Form 990, one with donor identities shown on Schedule B and one without, and track the variety of filing requirements in different states. We will continue to follow the evolving state requirements closely and are available to advise as needed.

The Senate today confirmed James E. “Trey” Trainor III as a member of the Federal Election Commission, reestablishing a quorum just months ahead of the 2020 general election. Since August 2019, when one of the commissioners resigned, the Commission has lacked a quorum, and as a result has been unable to investigate complaints, collect fines, issue advisory opinions, or promulgate new rules.

With Trainor’s appointment, the FEC will have four commissioners—the minimum number required to take official action. This means that any vote must be unanimous, which history suggests may be hard to come by, particularly on major issues. Even when there might be broad agreement, if one Commissioner is recused from a matter due to an actual conflict or the appearance of one, the Commission would be prevented from acting on that matter.

At full strength, the Commission is a six-member body, where no more than three can be from the same political party. This structure ensures there is bipartisan support for every official action. The current Commission consists of two Republicans, one Democrat, and an independent who generally sides with the Democrats. Despite calls to fill the remaining vacancies, no further appointments appear to be imminent.

Commissioner Trainor will be greeted with a full plate. The backlog on the Commission’s enforcement docket has grown to an estimated 300 matters, some of which will need prompt action to avoid an expiring statute of limitations. Several advisory opinion requests have been pending since last summer, including questions about an online fundraising platform and the use of campaign funds to pay a candidate’s health insurance premiums. The FEC also will have to reengage in pending litigation, including one case where a default judgment was entered against the agency due to its inability to defend itself.

Venable’s Political Law group represents clients before the Federal Election Commission and helps clients comply with FEC rules and regulations.

As federal and state governments grapple with the health and economic implications of the coronavirus pandemic, business leaders are at the center of the discussion. The White House holds frequent roundtables with CEOs and business owners. State governors have formed task forces comprised of business leaders to advise on strategies for reopening businesses in their states. Public-private sector partnerships have been formed to expand coronavirus testing and conduct contact tracing. Daily phone calls occur between business leaders and government officials.

Given the stakes and pace of government action, it can be easy to overlook that these activities can trigger registration and reporting obligations under applicable lobbying laws. While lobbying laws vary considerably, many are quite broad and often cover efforts to influence legislation, executive action, public policy, and even grants and contracts. Failing to comply with lobbying laws can expose a company to civil and criminal penalties. In addition, if lobbying activities are not carefully and accurately described, lobbying reports can result in damaged relationships with shareholders and customers, and harm a company’s brand.

How do you discuss lobbying laws with company executives?

Here are some questions and answers:

1. Do I have to register as a lobbyist?

No senior executive relishes the idea of registering as a lobbyist. Fortunately, in many jurisdictions, there are thresholds for registering that executives will not meet. For instance, under the federal Lobbying Disclosure Act, a corporate executive who spends less than 20 percent of his or her total work hours over three months on “lobbying activities” (i.e., direct communications with covered legislative or executive branch officials plus supporting research, preparation, and planning) is not considered a “lobbyist.”

On the other hand, in some states and municipalities, one email or call can trigger registration, and registration may have to occur before any communications aimed at influencing a public official. As we discussed on our blog, former Obama Administration official, David Plouffe, learned this lesson the hard way when he sent a single email to the Mayor of Chicago requesting help with regulatory issues for his then-employer. The email, which was sent to the mayor’s personal email account, was revealed by an open records lawsuit. The Chicago Board of Ethics fined Plouffe $90,000 for failing to register as a lobbyist.

2. Will information be disclosed about my meetings and compensation?

Even if a senior executive does not qualify as a lobbyist, lobbying reports filed by a company or its registered lobbyists will likely have to disclose information about meetings the executive has with government officials. Under the federal lobbying law, a corporation employing one or more lobbyists must file quarterly reports disclosing the government agencies they have lobbied, as well as whether they lobbied the U.S. House or Senate, but filers do not have to include specific meeting dates or the names of the officials being lobbied. The reports must, however, include the amount spent on lobbying in the calendar quarter, including the amount of compensation correlating to the time spent by non-lobbyist employees on lobbying activities. This amount may be derived by using any good-faith method, such as applying an hourly rate of pay to the approximate number of hours the executive engaged in lobbying activity. The reported expenses must also include payments for hotels, meals, and airfare relating to the lobbying activity. Note that some cities and states require salaries and other expenses to be itemized.

3. Who gets to look at lobbying reports?

The focus of lobbying laws is on making the process of government decision-making more transparent. Lobbying reports are publicly available online and can be read by the press, watchdog groups, competitors, and shareholders. As such, lobbying reports not only fulfill legal obligations but also serve an important public relations function. They should be treated as part of a consistent narrative about the company’s priorities and objectives. In addition, many jurisdictions post information about fines and other sanctions for violating lobbying laws.

4. What about grants and contracts?

Lobbying laws typically do not cover communications made in the context of a formal bidding process. Many states, however, have “procurement lobbying” laws that require registration and reporting for communications outside of the formal bidding process, such as efforts to “talk up” a product or service, open doors for line salespeople, or encourage a state official to issue a request for bids. Violations can result in fines and even disqualification from the procurement at issue, as well as future procurements. The federal lobbying law also applies to efforts outside of formal processes to influence the award of a contract, grant, or loan.

5. Does lobbying registration affect gift rules or political contributions?

Yes, in many jurisdictions it will. For instance, political appointees of the Trump Administration are prohibited from accepting any “gift,” with limited exceptions, from individual lobbyists and the organizations that employ them. In California, lobbyists are prohibited from giving gifts valued at more than $10 a month to government officials. The gift limit on Virginia lobbyists is $100 annually, which applies to companies that have or are seeking contracts with state and local agencies, along with their officers, directors, and owners. In Maryland, lobbyist-employers must file periodic reports disclosing corporate political contributions as well as personal political contributions by officers, directors, and others. An increasing number of states also bar lobbyists and their employers from making or soliciting political contributions during legislative sessions.

6. What if I am only responding to a request for information?

Not every communication with government officials constitutes lobbying. For example, there are 19 types of communications that are not considered “lobbying contacts” under the federal Lobbying Disclosure Act. These include testimony before a committee or subcommittee of Congress, administrative requests, such as a request for a meeting or the status of a matter (so long as the request does not include an attempt to influence a covered official), and communications made to an agency official regarding a civil, criminal, or administrative proceeding. There is also an exception for information provided in response to a request by a covered executive or legislative branch official, but this exception applies only when the response is communicated in writing. This nuance illustrates how these exceptions can be quite specific and are not always intuitive. State and local lobbying laws also contain exceptions, but these vary widely and should be carefully reviewed.

7. Can’t we leave compliance to our registered lobbyists?

What lobbyists do best is lobby. While some individual lobbyists prepare and file their own lobbying reports, reports filed on behalf of a company, particularly reports disclosing activities by business owners and executives, should be handled like any other compliance function. The determination as to whether a company official is a “lobbyist” under applicable law can involve subtle interpretations, both factual and legal. In addition, most reporting regimes require tracking of time and expenses by non-lobbyist employees who work behind-the-scenes to support the registered lobbyists or speak directly with government officials. Finally, lobbying reports are subject to random audits in many jurisdictions and expose the company to fines and reputational risks. When the stakes for companies are high, as they are with the response to the COVID-19 crisis, it is important that they are complete and accurate, and describe activities in a careful manner.

Venable advises companies, trade associations, and other organizations on lobbying law compliance. If you need assistance in complying with these laws, please reach out to Venable’s Political Law Practice.

Federal and state regulators continue to modify their lobbying and campaign finance reporting and enforcement practices and requirements in response to the ongoing upheaval caused by the COVID-19 pandemic.

As states postpone primaries to prevent the spread of coronavirus, agencies have revised reporting deadlines for election-sensitive campaign finance reports. The Federal Election Commission (FEC) announced revised reporting deadlines for reports relating to certain federal primary elections, and states like Ohio, New York, Pennsylvania, and Maryland have done the same for state elections.

The pandemic may also impact enforcement actions. New York announced the suspension of its lobbying audit program, indicating that no new audits will be initiated and complying with ongoing audits is voluntary until the audit program resumes.

Finally, as more states implement stay-at-home orders, regulatory agencies have begun to relax notarization and paper submission requirements. New Jersey has established a special temporary system for uploading or faxing paper campaign finance reports, and the FEC is now accepting electronically filed complaints for the first time. North Carolina has not eliminated its notarization requirement for lobbying filings, but the state has indicated that late penalties will not be levied if the filer certifies that their late submission was due to being unable to obtain a notary because of the coronavirus.

We continue to monitor these fast-moving changes. If you need assistance in determining your reporting obligations as regulators continue to adjust their reporting requirements, please reach out to Venable’s Political Law Practice.

As the impact of the coronavirus (COVID-19) is felt around the country, states and cities are welcoming help from the private sector, including donations of medical supplies and equipment, professional services, and the use of real property. To facilitate this support, some jurisdictions have loosened or clarified their ethics laws to facilitate these “gifts” to government agencies.

In New York, for example, Governor Andrew Cuomo signed an executive order lifting the state’s gift ban for contributions and donations that assist the state in its emergency response effort. The state’s anti-bribery statute will not be applied to executive officials who seek such donations.

Anticipating a need for additional facilities, Connecticut Governor Ned Lamont issued an executive order empowering agencies to expedite real property transactions to address the emergency, including by modifying certain rules governing the disclosure of gifts and campaign contributions by state contractors and prospective contractors, competitive bids, and confidentiality requirements.

Other jurisdictions have reminded potential donors of applicable gift rules. The City of Chicago recently issued an advisory opinion directed to medical supply and pharmaceutical companies concerning requirements that agencies promptly disclose gifts to the city, along with the value and source.

As businesses and other organizations heed the call for help, it is important to remember that even under the current circumstances, gifts to government agencies must be handled in a manner that complies with applicable gift rules, anti-bribery laws, and disclosure requirements.

Venable continues to monitor these developments in real time. Please reach out to Venable’s Political Law Practice for assistance with any compliance challenges your business or organization is facing.

In response to the coronavirus pandemic, some state agencies are pushing back filing deadlines for lobbying and pay-to-play reports, while others are suspending their legislative sessions, which has the effect of extending in-session reporting requirements and contribution bans.

New Jersey has announced a grace period for government contractors to file annual reports (Form BE) disclosing reportable political contributions made by covered donors in 2019. This grace period is available only upon request and is intended to be for the benefit of businesses whose functions have been hampered by mandated closures. Similarly, Illinois’ secretary of state has closed its public-facing operations through April 7 and automatically extended filing deadlines for 30 days after the governor declares that the statewide disaster has ended. New York’s Joint Commission on Public Ethics has extended its January-February bi-monthly reporting deadline until March 31 and requested that filers suspend hand delivery of paper filings until that date. Several other states, including California, Connecticut, and Hawaii, have either amended their deadlines or announced modifications of their filing practices.

Some state legislatures have temporarily shuttered, modifying restrictions and deadlines that are tied to the legislative session. Georgia has suspended its legislative session without adjourning, meaning that the heightened in-session reporting requirements and contribution restrictions will be in effect for longer than they normally would be. Mississippi has temporarily adjourned its legislative session, pushing back its end-of-session reporting deadline, which is tied to the legislature’s final adjournment date.

Though the list of accommodations is growing, most states have not postponed filing deadlines or instituted grace periods. In those states and others, it is important that filers exercise care in describing lobbying activities relating to COVID-19, and avoid unnecessarily creating public relations or shareholder concerns.

Venable’s Political Law team will continue to monitor these developments.

The coronavirus (COVID-19) presents many new challenges for political campaigns, committees, and related actors. These challenges include the possibility that treasurers and staff will be unavailable to timely prepare and submit campaign finance reports. Today, the Federal Election Commission (FEC) provided an update on Commission operations, including on the upcoming deadlines for filing campaign finance reports.

The FEC has confirmed that filers should continue to file their reports on time because the Commission does not believe it has the statutory authority to extend these filing deadlines. The Commission has, however, advised that it may exercise its discretion “not to pursue administrative fines against filers prevented from filing by reasonably unforeseen circumstances beyond their control.”

Continue Reading FEC Unable to Extend Filing Deadlines During Coronavirus Pandemic

We may still be a year out from the next general election, but until the polls close on Tuesday, November 3, 2020, politics will be inescapably in the air—and in the workplace. Employees will be talking, sometimes arguing, and sometimes participating in one campaign or another. Prudent nonprofits should take note of what they may be required to do or are prohibited from doing about their employees’ desire to participate in the electoral process.

The Workplace Is Not a “Free Country.” Let’s start with the basics: the First Amendment does not apply to the private workplace. The Constitution does not prevent private employers from restricting their employees’ political speech. Nonprofits generally can restrict employees’ speech during work time and on work equipment, especially if the organization has a legitimate, business-related reason to do so.

Your Tax-Exempt Status. Nonprofits that are tax-exempt under Section 501(c)(3) may not themselves engage in any political campaign activity (i.e., activity to support or oppose candidates for elective office). The IRS has said that individuals who work for 501(c)(3)s generally maintain their right to engage in political campaign activity, but they have to do so in a way that does not implicate their employer. For example, employees—particularly senior employees—must be careful when endorsing candidates or making other political statements so that it does not appear the organization is endorsing the candidate. The IRS has said that communications should include a clear disclaimer that “titles and affiliations of each individual are provided for identification purposes only” when a nonprofit leader’s name and position are included. Employees also should not make endorsements during nonprofit meetings and events.

For 501(c)(4), (5), and (6) organizations, which are allowed to engage in some political campaign activity, what an employee does or says on his or her own time is not likely to threaten your tax-exempt status.

Continue Reading Election-Year Tips for Nonprofits: Employee Participation in the Political Process