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It’s the kind of message that every organization involved in campaigns dreads most: “Your lawyer called, it’s an emergency.”
While we’ve been on both sides of that phone call before — as operative and campaign attorney — making that call doesn’t get easier with time. “The Call” means that something’s gone wrong, or something needs to be done quickly to make sure something doesn’t go wrong.
With the 116th Congress convening and the 2020 presidential race months away from beginning in earnest, it may seem that now would be the time to care least about the complex web of rules that regulate campaign activity across the country.
In reality, it’s the time to care the most.
Learning the “rules of the game” can be the difference in a close race, and are a competitive advantage across the board. Think of it this way: How could a coach in any sport effectively run their team without knowing the game’s rules inside-and-out? Campaigns are a direct parallel. In order to “leave it all on the field,” you need to know the rules – in this case, the many intricacies of campaign finance laws.
1. Knowledge is power.
All too often, we encounter campaign professionals, for whatever reason, who are completely ignorant of the laws that regulate their industry. Not only are those ignorant of the law looking for trouble, but they’re also basically playing the game without knowing the rules.
When you don’t know the rules of the game, there’s no way to be effective. Imagine you’re the executive director of the state party committee. The laws that regulate how you raise and spend money and interact with your candidates and others wishing to participate in the process are quite complex, and unless you understand these intricacies, you cannot effectively run your organization in an efficient, effective and compliant manner. A lawyer can provide training and guide you through the maze of campaign regulation.
2. Your opponents are looking to catch you in a violation.
Assuming that your opponents don’t know the rules is a major vulnerability. In the current atmosphere of hush-money payments and communications with foreign adversaries, the press is looking to cover campaign finance violations more closely and tend to devote more coverage to the charges themselves than to any potential outcome. “Political espionage,” the sort practiced by the right-leaning Project Veritas, has become more common. Now, opponents will try to bait a campaign into committing a violation.
The press is taking an increasing interest in campaign compliance and reporting violations. There’s no easier way to sidetrack a successful campaign with the disclosure of a major violation of campaign laws. The key is to avoid giving the opposition any excuse to level charges to begin with, which means setting up compliance systems and clear channels of communication with your campaign’s lawyers.
3. Enforcement is becoming stricter.
The FEC and state election authorities that regulate campaigns for state offices (as well as other agencies, including the Department of Justice) are becoming stricter about enforcement and levying heavier penalties more often.
While the prevailing narrative about the FEC is that they’re “deadlocked,” we see it differently. The Commission can decide to not be deadlocked at any time, and you don’t want to be the test-case that brings the Commission together to find a violation on an issue where you were counting on them to fail to find one because of a partisan split.
Also, the one thing that all regulators agree on is strong enforcement of the day-to-day requirements such as proper reporting limits and the enforcement of contribution limits and prohibitions.
4. Political law is becoming more complex.
Being a compliant political organization is not just about complying with campaign finance laws. In addition to campaign finance laws, there are a myriad of other issues you will face, like compliance with communications laws, labor laws, and tax laws. On top of that, you’ll be entering into potentially complex contracts with vendors and other service providers. Having a good lawyer at your side will prevent major problems down the line.
So with 2019 just beginning and many more political fights to come, the best advice that we can give is to take time to make sure that you have a working knowledge of the basic issues and problems areas that apply to races that you’re involved in.
If you don’t know, never assume. Just call your campaign’s lawyer. It may cost a few bucks, but it’s worth it in the long run to avoid an issue that would have made the front pages, or cost you thousands of dollars on the back end.
Neil Reiff is a Member, and David Mitrani the Senior Associate, of Sandler Reiff Lamb Rosenstein & Birkenstock, a firm practicing Political Law – campaign finance, election law, advocacy regulation, pay-to-play laws, and everything in-between.