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By Stefan C. Passantino and Benjamin P. Keane
Whether you agree with Justice Brandeis that sunlight is the “best of disinfectants” or with former American League of Lobbyists president Dave Wenhold that “too much sunlight causes cancer”, it should be readily apparent to the readers of this blog that public officials of all stripes have increasingly begun to listen to the chorus of voices calling out for more transparency in all levels of government. At PaytoPlayLawBlog, we often write about how the push for greater transparency at the federal, state and local levels is affecting the operation of government, as well as the interaction of the public with government officials. As strictly objective, rational observers (ahem), it seems to us that disclosure alone generally trumps both inaction and punitive regulation in the pay-to-play space. Over the past month or so, we have come to see new evidence of this welcome push for openness at the federal level, particularly with regard to the activities of the newly-formed Joint Select Committee on Deficit Reduction (or the so-called Deficit “Super Committee”).
For those who have spent all of their time recently tracking satellite orbits and running calcu lations on their chance of having to make a potentially uncovered hom eowners claim, the Super Committee is a balanced delegation of six Democrats and six Republicans (split evenly between members of the U.S. House of Representatives and U.S. Senate) formed in August of this year as a means of permitting Congress and the White House the opportunity to avoid responsibility for identifying an additional $1.5 trillion in federal budgetary cuts over the next decade. Whether one agrees with the premise of granting 12 Members of Congress such extraordinary authority over federal, fiscal decision making, it is readily apparent that the ongoing work of the Super Committee has drawn a great deal of attention from political organizations and commentators across the ideological spectrum. Given the nature of the current (entirely justified) cynicism with the political process, and the enormity of the task before the Super Committee, it should not surprise readers of this blog to learn that much of this attention across the political continuum has been focused on increasing the political transparency of the Committee’s activities.
One of the more prominent efforts to accomplish this goal has been organized by the Sunlight Foundation, a non-profit organization dedicated to using the “power of the Internet to catalyze greater government openness and transparency.” On August 3, 2011, the Foundation issued a letter to congressional leadership urging them to adopt a series of recommendations that the Foundation believes will ensure the Super Committee operates in a fully open and transparent manner. Those recommendations included: (1) holding live webcasts of all official Committee meetings and hear ings; (2) posting the Committee’s draft recommendations for at least 72 hours prior to a final committee vote; (3) promoting disclosure of every meeting held by Committee members with lobbyists and other “powerful interests”; (4) ensuring the immediate disclosure of all campaign contributions received by Committee members during their service on the Committee; and (5) demanding additional financial disclosure standards for Committee members and their staffers. In addition, the Foundation has teamed up with various transparency activists and supporters to launch a grassroots campaign designed to encourage greater accountability and openness from the Super Committee. The movement’s allies in this endeavor include such left-leaning organizations as The Bre nnan Center for Justice, the Project on Government Oversight, and Public Citizen.
Although not necessarily backing each of the Sunlight Foundation’s specific recommendations, many organizations and individuals on the conservative and libertarian end of the political spectrum have also echoed the Foundation’s calls for transparency in Super Committee activities. For example, Jim Harper of the CATO Institute and Rob Bluey of The Heritage Fou ndation’s Center for Media and Public Policy have both recently demanded that the Super Committee permit open public access to Committee meetings and legislative proposals as a means of ensuring that all citizens are kept abreast of the activities of this uniquely powerful legislative panel. Along those same lines, Harper and Bluey have also called for Committee transparency as a safeguard against the passage of expansive legislation that is subject to little or no debate or public input.
All of this makes perfect sense. As we have previously observed here, efforts to govern matters such as this from behind closed doors can lead to embarrassing exchanges.
Bi-partisan support for greater Super Committee transparency has even begun to emerge within Congress itself. In fact, in early September, Representatives Mike Quigley (D-IL), Dave Loebsack (D-IA), and Jim Renacci (R-OH) introduced H.R. 2860, the Deficit Committee Transparency Act, which would implement six transparency reforms along the lines of those recommended by the Sunlight Foundation. Similarly, Senators David Vitter (R-LA) and Dean Heller (R-NV) have also introduced two separate bills, S. 1501 (the Budget Control Joint Committee Transparency Act) and S. 1498 (the Super Committee Sunshine Act), that are designed to ensure the openness of Super Committee meetings and greater transparency in the political fundraising of Committee members.
At present, none of the aforementioned bills have been acted upon in Congress, but there does appear to be growing support on both sides of the political aisle for a more open and forthright framework for Super Committee action. Recognizing the growing momentum in support of such transparency, the Committee has taken the initial step of keeping its three preliminary meetings open to the public (and also available for video review over the Internet). It remains to be seen, however, whether this policy will continue as the Committee gets deeper into the task of formulating its deficit-reduction proposals. Likewise, it remains to be seen whether any of the other aforementioned transparency proposals will gain any traction with the Committee itself. Stay tuned in the coming months to find out.
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This effort to regulate conduct in the derivative swap market by the SEC emerges out of the Dodd-Frank Act's comprehensive framework for monitoring over-the-counter swaps and the activities of “security-based swap dealers” and “major security-based swap participants” that engage in security-based swap transactions with counterparties (including “special entities” such as federal agencies, states and political subdivisions, employee benefit plans, governmental plans, and endowments). The rules the SEC advanced this week would require swap dealers to disclose to their buyers the risks associated with transactions, the potential conflicts of interests involved, and the day-to-day values of their swaps, which would aid purchasers in assessing the overall worth of specific deals.&nbs p; The rules would also mandate that swap dealers doing business with special entities ensure that their counterparts use independent financial advisers to assist with transactions. Additionally, dealers would be prohibited from participating in a wide range of “pay to play” practices.
Under these new pay to play rules, securities-based swap dealers and their “covered associates” would specifically be barred from engaging in swap transactions with a “municipal entity” for a two-year period if they choose to make certain types of political contributions to officials of that municipal entity. This Proposed Rule 15Fh-6 is modeled on, and intended to complement, existing restrictions on pay to play practices under Advisers Act Rule 206(4)-5, which imposes restrictions on political contributions by investment advisers providin g or seeking to provide investment advisory services to public pensio n plans and other government investors, and MSRB Rules G-37 and G-38, which impose such restrictions on municipal securities dealers and broker-dealers engaging or seeking to engage in the municipal securities business. The pay to play restrictions are also similar to rules the Commodity Futures Trading Commission (CFTC) recently proposed for non-securities-based swaps.
According to SEC Chairwoman Mary L. Schapiro, these new pay to play provisions and the other business conduct standards in the proposed rules will work to “level the playing field in the securities-based swap market by bringing needed transparency to this market and by seeking to ensure that customers in these transactions are treated fairly.” That is yet to be seen, but all five SEC commissioners nevertheless voted unanimously to propose the rules and introduce them through formal public notice. The proposed rules will remain open for public comment until August 29, at which point the SEC will take any submitted remarks under advisement and make a final vote as to their implementation.
It will be interesting to see how business leaders and public officials alike react to the SEC’s proposal during the upcoming notice and comment period. Businesses, and in particular investment firms, have had to adjust to a litany of newly proposed regulations and pay to pay rules in the wake of the passage of the Dodd-Frank Act. As such, it has left companies universally unsure as to what types of activities are permitted and prohibited in their day-to-day business. Public officials, however, have been quick to applaud any and all efforts by the federal government and its numerous business regulatory bodies to restrain “unsavory” corporate practices – practices that the SEC, MSRB, CFTC, and other entities assert have contributed to the current economic downturn and led to the misappropriation of billions upon billions of dollars in taxpayer money. Over the next few months, we shall see if both trends continue and if the movement toward increas ed federal regulation of business conduct and political speech persists.
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By Stefan C. Passantino & Benjamin P. Keane
If it takes three times to make something a habit, it is safe to say that “pay-to-play” legislation in the State of California is getting to be a bit habitual. For the third time in as many years, the California State Legislature has decided to ripple the “pay-to-play” regulatory waters by passing an “urgency” measure designed to clarify and modify the state’s existing restrictions on investment managers and investment placement agents who do business with California’s public employee pension funds, such as the California Public Employees’ Retirement System (CalPERS) and the California State Teachers’ Retirement System (CalSTRS). The new piece of legislation, Senate Bill 398 (SB 398), was signed into law on October 9, 2011 by Governor Jerry Brown, and is designed to complement two other recently-passed bills regulating the activities of pension fund investment managers.
The first of those recently-passed bills was Assembly Bill 1584 (AB 1584), which was passed by the state legislature in 2009 as part of an effort to increase transparency in the management of public employee pension fund assets. Specifically, AB 1584 required all California pension funds to adopt disclosure policies that would require the reporting of all campaign contributions and gifts made to pension fund board and staff members by “placement agents” and external investm ent managers. Likewise, the bill mandated that all outside investment managers disclose information regarding the fees they pay to placement agents for the purpose of securing asset management business opportunities with state and local pension funds across California.
The second of those complementary pieces of legislation was Assembly Bill 1743 (AB 1743), which was passed by the state legislature in 2010 as part of an effort to build on the transparency provisions of AB 1584 by explicitly restricting the ability of placement agents and external investment managers to engage in pay-to-play activities associated with California’s public employee pension funds. As this blog highlighted at the time of the bill’s passage, AB 1743 placed a broad swath of placement agents, external investment managers, and external investment management firm staff under an obligation to register as lobbyists with the State of California. In addition, AB 1743 banned these same individuals from making campaign contributions to the elected board members of California’s pension funds and prohibited them from setting up contingency fee arrangements to manage such pension fund assets.
While not as groundbreaking as either AB 1584 or AB1743, SB 398 does build upon each of those bills and make some noteworthy changes to California’s pay-to-play regulatory framework for pension fund placement agents and external investment managers. Specifically, SB 398 modifies existing law in the following ways:
· The bill revises the definition of the terms “external manager”, “placement agent”, “investment fund”, and “investment vehicle” to clarify that almost all managers of securities and assets for California public employee pension funds, whether directly or through managed funds, are subject to the disclosure and lobbyist registration rules put in place by AB 1743 for external managers and placement agents. Despite this fact, however, SB 398 does exempt investment management companies that are registered with the Secur ities and Exchange Commission (SEC) pursuant to the Investment Company Act of 1940 and that make public offerings of their securities from having to comply with the statutory disclosure and registration standards.
· The bill extends AB 1743’s “safe harbor” exemption from state-level lobbyist registration so that it also applies to local-level lobbyist registration requirements. Under AB 1743’s safe harbor provision, investment managers of public pension funds need not pursue state-level lobbying registration if they meet three separate requirements: (1) they are registered with the SEC as investment advisers or broker-dealers; (2) they obtain their pension fund business through competitive bidding processes; and (3) they agree to be subject to the Cal ifornia fiduciary standard imposed on public employee pension fund trustees. In turn, SB 398 extends a similar exemption to investment managers who would otherwise be required to register as local-level lobbyists on account of their management of local public employee pension fund assets.
Since SB 398 was passed by the state legislature and signed by the governor as an “urgency” measure, it is now the active law of the land in California. It remains to be seen, however, what sort of impact it will actually have on the ethics of public pension fund asset management. While its changes will certainly have some effect on investment managers and placement agents doing business with public employee pension funds in California, it will certainly not be as significant an effect as either AB 1584 or AB 1783. After all, individuals working in the pension fund investment management business have to be slowly getting used to California’s growing pay-to-play regulation habit.
In light of this fact, perhaps the most interesting thing to watch in the wake of SB 398’s passage just might be the reaction of California localities to the extension of AB 1743’s safe-harbor exemption. How will localities with a history of tackling pay-to-play issues (like Los Angeles) react to the state’s intrusion into municipal issues such as the regulation of local public employee pension fund management? We shall see if any drama ensues in the Golden State… Stay tuned…
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Of significance to this blog, the resolution calls upon Congress to amend the Act to prohibit lobbyists from working their trade with any member of Congress for whom he or she has raised money in the past two years. The resolution also recommends a refinement of the definition of “lobbyist” to enhance registration and disclosure. With respect to contributions by such lobbyists, the resolution recommends mandating that a federally-registered lobbyist may not:
(a) lobby a member of Congress for whom he or she has engaged in campaign fundraising during the past two years;
(b) engage in campaign fundraising for a member of Congress whom he or she has lobbied during the past two years;
(c) make or solicit financial contributions to the reelection campaign of a member of Congress whom the lobbyist has been retained to lobby for an earmark or other narrow financial benefit; or
(d) enter into a contingent fee contract with a client to lobby for an earmark or other narrow financial benefit for that client.
The proposal is likely to enjoy enhanced stature because of the high caliber, and bi-partisan bona fides of the task force issuing the underlying report recommending the changes this past January. Co-chairs to the ABA task force included former Republican FEC Commissioner Trevor Potter, noted Democratic attorneys Rebecca Gordon and Joseph Sandler, and former Reagan Solicitor General and current Harvard Law School professor Charles Fried. Nothing says “bipartisan” and “mood of America” like agreement between former counsel to Obama for America, John McCain 2008, the Gipper, and Stephen Colbert.
Already, the American League of Lobbyists (ALL) is responding to this shot across its bow with a promise to release a report of its own in response to the ABA’s proposals. ALL President Howard Marlowe has also signaled that the League may embark on an effort kill this portion of the proposal before it gains any traction. As reported in Roll Call, Marlowe acknowledged “the significance of money in the policymaking process” represents a “significant” problem, but then pivots to signal an effort to kill the proposal with the backhanded compliment that while the leagues’ proposal will be similar, “[t]he ABA knows ‘that they are on the short end of the stick constitutionally when they’re doing that, and it’s not likely to pass muster.’” Marlo we also reached out to Politico to characterize the proposed contribution ban as “not practical at all.”
You have to give ALL props for trying, but there would appear to be far less constitutional infirmity in this proposal, which simply prohibits lobbyists from plying their regulated trade with those they have previously supported politically, than we have seen in other attempted bans on free association and expression covered and criticized by this blog in the past.
There is an old legal saying that “good lawyers know the law, great lawyers know the judge.” The ABA’s proposal looks to refine lobbying effectiveness more towards “what you know” and less towards “who owes you.” The ABA has captured the mood of the country with a sensible proposal that is as likely to enjoy as much legislative success as anything trying to make its way through an otherwise dysfunctional legislative environment.
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Still have questions about what the STOCK Act really means?
In this interview with LexBlog Network Television, I explain the legislation, what drove it, and where it could be headed.
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No, the tremors you felt this morning are from the repercussions of the impending plan by the Berkeley City Council to examine strict new pay-to-play laws tomorrow possibly designed to give the Golden Bears more bite than have their San Francisco brethren across the Bay. Under the proposed resolution, the City of Berkeley intends to request that its Fair Campaign Practices Commission institute prohibitions against city contractors from making campaign contributions to candidates for public office.
To his credit, the recommending Berkeley City Councilmember, Jesse Arreguin, went out of his way in his recommending memorandum to caution that Berkeley should take note of the “possible unintended consequences” realized any time government seeks to outlaw a broadly-defined “person who contracts” as Section 1.126 (a)(1) of San Francisco’s pay-to-play law does.
Mr. Arrequin, by virtue of being correct on this point, you are officially forgiven for not also citing as authority the numerous times this blog has made that same observation.
Interestingly, there are some, including former San Francisco Ethics Commission member Eileen Hansen, who argue that Berkeley should model its prohibition after the stricter enforcement model enacted one year ago in Los Angeles:
“I don’t think it should be so difficult at all,” Hansen said. “It’s more … about educating people on the law.”
Hansen said she thinks Berkeley ought to look to Los Angeles, not San Francisco, for pay-to-play politics regulation — saying that the San Francisco Ethics Commission lacked the proper power to enforce any kind of punishment for violations of its campaign law.
As San Francisco’s politicians and donors have learned, it's easy to talk punishment when you’re not the poor compliance officer responsible for ensuring that your company’s board of directors, chairperson, chief executive officer, chief financial officer, chief operating officer, any twenty percent owner of your company (and their executives), any subcontractor listed in any bid or contract (and their executives), as well as any “committee” your company sponsors or controls (and their executives) are all fully aware of, and comply with, the pay-to-play laws passed throughout the country.
Now those will be aftershocks.
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The team here at Pay to Play Law Blog wants to welcome a phenomenal group of commentators to the McKenna Long & Aldridge blogosphere. Last week, MLA launched its newest blog, “Politics, Law and Policy,” authored by a bipartisan group of attorneys and public policy advisors in the firm’s nationally-recognized government affairs practice. The blog will serve as an important resource for those seeking analysis and resources on the impact of federal and state politics and public policies on a wide range of issues and debates, including health care, energy, infrastructure, taxes, transportation, cybersecurity, and campaign and election compliance.
Led by Eric Tanenblatt, head of ML A’s National Government Affairs practice, the MLA Politics, Law and Policy blog follows law and public policy developments and political campaigns at the state and national levels. It features legal, political and policy insights from attorneys and professionals who have held public office and served as their advisors, including governors, mayors, ambassadors, attorneys general, congressional members, and senior administration officials.
Contributors to the Politics, Law and Policy blog from MLA’s Government Affairs practice include Speaker Emeritus Mark Burkhalter (R-GA); Cindy Gillespie, co-chair of the firm’s Health Insurance Exchange team and former special counselor to Massachusetts Governor Mitt Romney; and Governor Howard Dean (D-VT), former chair of the Democratic National Committee. Other contributors include: former U.S. Ambassador to Canada Gordon Giffin; former Georgia Attorney General Thurbert Baker ; former Washington, DC Mayor Anthony Williams; and former assistant to President William J. Clinton, Keith Mason to name a few.
We invite our readers to visit the blog and subscribe to updates at http://www.politicsandlawblog.com. The Politics, Law and Policy blog can be found on Twitter at http://www.twitter.com/politics_law.
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The newest Philly reform effort of note is the city’s lobbyist registration regulation, which was signed into law in June 2010 but will not go into official effect until January 3, 2012. This regulation, labeled as Regulation No. 9 by the Philadelphia Board of Ethics, will for the first time in the city’s history require individuals who attempt to influence legislative or administrative action, or who endeavor to obtain city contracts, to register as lobbyists. In addition, the rule will place significant disclosure requirements on most lobbyists, lobbying firms, and lobbying principals operating in Philadelphia. Specifically, the regulation will require most registrants (those expending more than $2,500 or lobbying more than 20 hours per quarter) to periodically report their lobbying expenditures on gifts, hospitality, transportation, lodging and other associated activities. In addition, the new rule will mandate that registered Philadelphia lobbyists publically divulge basic information about the nature of their lobbying co ntacts and communications with city officials and employees.
Beyond these fundamental disclosure requirements, Regulation No. 9 will also prohibit contingency fee lobbying among registrants, mandate lobbyist training, and impose a number of conflict-of-interest rules on city lobbyists. In addition, the regulation will prevent registered city lobbyists from serving as officers for the political committees and political action committees of candidates seeking elected office in Philadelphia. Also, interestingly, the new rule prohibits any registrant from transmitting, uttering, or publishing any false, forged, counterfeit or fictitious communication to a city official or employee for the purpose of influencing legislative or administrative action. How broadly the false statement provision will be enforced moving forward will be interesting to watch. All told, however, Regulation No. 9 appears to take significant steps toward bringing Philadelphia’s municipal lobbying rules up to speed with those in place in other major cities around the county. Enactment of Philadelphia’s lobbyist registration regulation comes on the heels of another noteworthy reform put into place by the city council and Board of Ethics earlier this year. This reform, known as Regulation No. 8., went into effect in late March, and is designed to severely limit improper, partisan political activity on the part of city officers and employees. Like a mini-version of the federal Hatch Act, Regulation 8 seeks to prevent appointed Philadelphia officials and employees from using city resources to engage in partisan political activities. Likewise, the regulation seeks to prohibit city officials and employees from utilizing their status or tit le as a means of influencing or coercing participation in political activities. Along these same lines, Regulation 8 endeavors to prevent improper, partisan political behavior through the following mechanisms: (1) a ban on collecting, receiving, and soliciting political contributions for a partisan purpose; (2) a ban on membership in national, state, and local political party committees; (3) a ban on political campaigning and political management activities; (4) a ban on circulating nomination petitions or papers for political candidates; and (5) a ban on get-out-the-vote participation when such activities are organized or sponsored by a political party, candidate, or partisan political group. In practice, these provisions are designed to preserve a proper separation between impartial policy making and partisan political activity by city government officials and employees … a line that has not always been so clear in Philadelphia. Whether Regulation 8 will accomplish this goal moving forward, however, remains to be seen. This is particularly the case in light of a few of the broad carve-outs contained within the regulation. Exceptions to the political activity restrictions discussed above exist for a wide range of partisan political behavior, including engaging in most political activities organized by civic, community, labor, and professional organizations, and campaigning for or against referendum questions and municipal ordinances. Likewise, the regulation also exempts city council employees from having to comply with several of the aforementioned prohibitions, including the exclusion on partisan political campaigning and manageme nt. It is doubtful that the loopholes in Regulation 8 are broad enough to swallow the entire rule, but how they affect overall compliance is certainly something to keep an eye on in the future. For many, reforms like Regulation No. 8 and Regulation No. 9 might seem like too little, too late on the part of the Philadelphia city government and Board of Ethics. After all, over the past few decades, the City of Brotherly Love has become an environment more synonymous with appearances of cronyism and corruption than transparency and good governance. But in a city known for its comeback stories, I wouldn’t count out meaningful political reform quite yet.
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Atlanta’s Fulton County Commission met yesterday as predicted http://www.paytoplaylawblog.com/2011/08/articles/georgia/atlanta-takes-anothe... ">here to take up its latest pay-to-play resolution.
Everyone’s dying to know what happened.
Drum roll . . . It failed.
Interestingly, Fulton County’s Commission didn’t simply reject the resolution, they made sure to give the bill sufficient medical attention to permit the orderlies to wheel it in to the room where they could execute it properly and with finality. The Atlanta Journal Constitution reported on the gruesome course of events thusly:
Fulton County commissioners didn't just reject Vice Chair Emma Darnell's proposal to limit contractors' donations to political campaigns. They killed it.
Darnell sought to prohibit any company or individual from bidding for county work if they have donated more than $500 to a commission candidate, or have given gifts to commissioners or county employees, during the past year.
The board opposed the plan 4-2, then, on a motion from Commissioner Tom Lowe, voted 4-2 to officially deny it so it can't be brought up again. Lowe called the idea stupid and bad for business
Not everyone sees the issue the same way. On the same day Fulton County was doing its work, the Brigantine Beach, New Jersey, City Council voted a strikingly similar piece of legislation onto the books. The Brigantine Beach ordinance, based largely on an Atlantic County, NJ, ordinance, and drafted with the assistance of the Atlantic County counsel, bans all professional contractor contributions one year before bidding and limits success ful bidders to $300 candidate contributions after that with aggregate total limit contributions from a corporation holding a city contract to no more than $2,500 annually.
The regulatory patchwork continues to be sewn together stitch by stitch with no sign of uniformity on the horizon.
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The Conference Board was kind enough to share the following link to portions of a webinar they hosted a few weeks back on best practices for corporate political spending. It is about 20 minutes long and focused on some of the issues those tasked with pay-to-play compliance lay awake worrying about (yes, those people do exist).
I hope it is helpful and entertaining (hey, one out of two wouldn’t be bad either).
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Still have questions about what the STOCK Act really means?
In this interview with LexBlog Network Television, I explain the legislation, what drove it, and where it could be headed.
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Atlanta’s Fulton County Commission met yesterday as predicted http://www.paytoplaylawblog.com/2011/08/articles/georgia/atlanta-takes-anothe... ">here to take up its latest pay-to-play resolution.
Everyone’s dying to know what happened.
Drum roll . . . It failed.
Interestingly, Fulton County’s Commission didn’t simply reject the resolution, they made sure to give the bill sufficient medical attention to permit the orderlies to wheel it in to the room where they could execute it properly and with finality. The Atlanta Journal Constitution reported on the gruesome course of events thusly:
Fulton County commissioners didn't just reject Vice Chair Emma Darnell's proposal to limit contractors' donations to political campaigns. They killed it.
Darnell sought to prohibit any company or individual from bidding for county work if they have donated more than $500 to a commission candidate, or have given gifts to commissioners or county employees, during the past year.
The board opposed the plan 4-2, then, on a motion from Commissioner Tom Lowe, voted 4-2 to officially deny it so it can't be brought up again. Lowe called the idea stupid and bad for business
Not everyone sees the issue the same way. On the same day Fulton County was doing its work, the Brigantine Beach, New Jersey, City Council voted a strikingly similar piece of legislation onto the books. The Brigantine Beach ordinance, based largely on an Atlantic County, NJ, ordinance, and drafted with the assistance of the Atlantic County counsel, bans all professional contractor contributions one year before bidding and limits success ful bidders to $300 candidate contributions after that with aggregate total limit contributions from a corporation holding a city contract to no more than $2,500 annually.
The regulatory patchwork continues to be sewn together stitch by stitch with no sign of uniformity on the horizon.
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Last February, we posted an entry flagging potential concerns arising from the SEC’s new pay-to-play rules for investment advisors as applied to presidential candidates. Admittedly, at the time we were talking about Governors Haley Barbour and Mitch Daniels, but the same holds true now for Texas Governor Rick Perry.
The Compliance Building blog (Presidential Campaign Season and the SEC’s Pay-to-Play Rule) has just posted an excellent analysis of the issue. I highly recommend you check it out. As the blog notes:
“Registered Investment Advisors, private fund managers getting ready to register with Securities and Exchange Commission, and their employees need to be very cautious about making contributions to Governor Perry if they have a Texas state sponsored fund as a client or investor, or hope to have one as a client or investor in the next two years.”
Transparency Alert: the author is campaign counsel to several federal candidates including former Speaker Newt Gingrich.
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By Stefan C. Passantino & Benjamin P. Keane
If it takes three times to make something a habit, it is safe to say that “pay-to-play” legislation in the State of California is getting to be a bit habitual. For the third time in as many years, the California State Legislature has decided to ripple the “pay-to-play” regulatory waters by passing an “urgency” measure designed to clarify and modify the state’s existing restrictions on investment managers and investment placement agents who do business with California’s public employee pension funds, such as the California Public Employees’ Retirement System (CalPERS) and the California State Teachers’ Retirement System (CalSTRS). The new piece of legislation, Senate Bill 398 (SB 398), was signed into law on October 9, 2011 by Governor Jerry Brown, and is designed to complement two other recently-passed bills regulating the activities of pension fund investment managers.
The first of those recently-passed bills was Assembly Bill 1584 (AB 1584), which was passed by the state legislature in 2009 as part of an effort to increase transparency in the management of public employee pension fund assets. Specifically, AB 1584 required all California pension funds to adopt disclosure policies that would require the reporting of all campaign contributions and gifts made to pension fund board and staff members by “placement agents” and external investm ent managers. Likewise, the bill mandated that all outside investment managers disclose information regarding the fees they pay to placement agents for the purpose of securing asset management business opportunities with state and local pension funds across California.
The second of those complementary pieces of legislation was Assembly Bill 1743 (AB 1743), which was passed by the state legislature in 2010 as part of an effort to build on the transparency provisions of AB 1584 by explicitly restricting the ability of placement agents and external investment managers to engage in pay-to-play activities associated with California’s public employee pension funds. As this blog highlighted at the time of the bill’s passage, AB 1743 placed a broad swath of placement agents, external investment managers, and external investment management firm staff under an obligation to register as lobbyists with the State of California. In addition, AB 1743 banned these same individuals from making campaign contributions to the elected board members of California’s pension funds and prohibited them from setting up contingency fee arrangements to manage such pension fund assets.
While not as groundbreaking as either AB 1584 or AB1743, SB 398 does build upon each of those bills and make some noteworthy changes to California’s pay-to-play regulatory framework for pension fund placement agents and external investment managers. Specifically, SB 398 modifies existing law in the following ways:
· The bill revises the definition of the terms “external manager”, “placement agent”, “investment fund”, and “investment vehicle” to clarify that almost all managers of securities and assets for California public employee pension funds, whether directly or through managed funds, are subject to the disclosure and lobbyist registration rules put in place by AB 1743 for external managers and placement agents. Despite this fact, however, SB 398 does exempt investment management companies that are registered with the Secur ities and Exchange Commission (SEC) pursuant to the Investment Company Act of 1940 and that make public offerings of their securities from having to comply with the statutory disclosure and registration standards.
· The bill extends AB 1743’s “safe harbor” exemption from state-level lobbyist registration so that it also applies to local-level lobbyist registration requirements. Under AB 1743’s safe harbor provision, investment managers of public pension funds need not pursue state-level lobbying registration if they meet three separate requirements: (1) they are registered with the SEC as investment advisers or broker-dealers; (2) they obtain their pension fund business through competitive bidding processes; and (3) they agree to be subject to the Cal ifornia fiduciary standard imposed on public employee pension fund trustees. In turn, SB 398 extends a similar exemption to investment managers who would otherwise be required to register as local-level lobbyists on account of their management of local public employee pension fund assets.
Since SB 398 was passed by the state legislature and signed by the governor as an “urgency” measure, it is now the active law of the land in California. It remains to be seen, however, what sort of impact it will actually have on the ethics of public pension fund asset management. While its changes will certainly have some effect on investment managers and placement agents doing business with public employee pension funds in California, it will certainly not be as significant an effect as either AB 1584 or AB 1783. After all, individuals working in the pension fund investment management business have to be slowly getting used to California’s growing pay-to-play regulation habit.
In light of this fact, perhaps the most interesting thing to watch in the wake of SB 398’s passage just might be the reaction of California localities to the extension of AB 1743’s safe-harbor exemption. How will localities with a history of tackling pay-to-play issues (like Los Angeles) react to the state’s intrusion into municipal issues such as the regulation of local public employee pension fund management? We shall see if any drama ensues in the Golden State… Stay tuned…
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