Friday, August 15, 2014

Super Lawyers discuss Super PACs at RNLA conference

The recently concluded RNLA Election Law conference held in Las Vegas had many highlights. Notable speakers included Georgia governor Nathan Deal and FEC Chairman Lee E. Goodman. Presenters discussed a wide range of issues important not only to election lawyers but to Republican lawyers of any practice. Panels included salient topics such as the Presidential Commission on Election Administration, Supreme Court cases, and recounts.  

One distinctive panel featured top-level election lawyers discussing real-world scenarios that arise with modern presidential campaigns. Counsel for candidates, candidate-specific Super PACs, and wealthy donors play a vital role helping clients achieve their goals while navigating the assorted agencies, laws, and regulations that touch upon political activity.
The scenario began with Stefan Passantino, of McKenna Long and Aldridge—and counsel to Newt Gingrich’s 2012 presidential run—playing advisor to the “candidate,” RNLA Board of Governors Chair Randy Evans. 

Charlie Spies, of Clark Hill, and counsel to the Mitt Romney-focused Restore Our Future PAC—the first candidate-specific Super PAC—assumed the role of advisor to the fictional Super PAC: ‘Election Law Lawyers Make Great Presidents PAC.’ 

Robert Kelner, chair of Covington & Burling’s Election and Political Law Practice Group, and representative of many high-net worth individuals, represented the audience, who played the part of wealthy donors. 

Mr. Passantino began by discussing the preliminary stages of a presidential campaign. The candidate’s team must evaluate the credibility of a presidential run. This includes polling, gauging the fealty of activists and donors, and probing the success of any “draft” campaigns. They must also make crucial decisions about budgeting and staffing. 

Mr. Spies explained the importance of making the PAC appear viable to donors. Starting the PAC is not difficult, requiring only a short form submitted to the FEC. The real challenge is ensuring the PAC has credibility with possible funders. This may include hiring people that have had some previous professional relationship with the candidate and pitching donors on the Super PAC’s plans. An important consideration is advising how much contact candidates can have with a Super PAC without crossing into illegal coordination. 

Mr. Kelner discussed the issues involved from the donor’s perspective. A donor’s desired involvement may run the spectrum from simply writing a check to traveling on the campaign. Each level of higher involvement comes with attendant risks counsel must diagnose and explain to the client. 

The discussion turned to various issues that arise as campaigns continue to develop. All three panelists emphasized the level of independence the campaign must maintain in order to avoid contributing in kind. These issues can surface in a number of ways including with staffing decisions, common vendors, and list rentals. 

The panelists also discussed the phenomenon of companion Super PAC and 501(c)(4) organizations. As the panelists noted, 501(c)(4) organizations differ from Super PACs in a variety of legal and structural ways that affect its political activity.

The panelists concluded by teasing out the different regulatory environment in a state race. They discussed not only the different set of rules in state races but also the differences in state agencies versus federal. 

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