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Most political consultants don’t set out with the intention of committing fraud, embezzlement or other obviously illegal acts. But campaigns are unpredictable, and some practitioners get caught up believing that the actions of their peers can legitimize their own bad behavior.
The trouble is campaigns are a highly regulated and legally complex industry patrolled by watchdog groups that raise public outcries on a daily basis over the activity of just about any political client you may have. Legal minefields are naturally everywhere, but there are some common risks to keep in mind walking into your next client meeting. Here are a few of the legal pitfalls to watch out for this cycle.
It isn’t legal because someone else is doing it.
Tyler Harber, a former Republican operative who was sentenced to federal prison for illegal coordination, stated during his trial that he believed his actions were common practice. It’s a familiar line every political attorney has heard. But campaign finance laws have changed so much over the past seven years that it’s impossible for consultants to keep up -- unless you’re a political lawyer. Don’t make the mistake of assuming you will stay out of jail because you copied someone else’s clever idea.
Consultants never want to turn away business, but can they legally play both sides?
You can’t serve two masters. Consultants need proper infrastructure to create adequate separation between staff providing services to a campaign and staff providing services to the outside groups who might support or oppose that candidate. All political consultants should have a basic understanding of federal coordination rules and should be able to implement a proper firewall policy between clients if necessary. Your legal counsel can help set up such a policy and document your compliance. Otherwise, be prepared to turn away business, no matter how lucrative, or face the serious ramifications of illegal campaign coordination.
Good contracts may keep you out of court or at least reduce your legal fees.
Lawyers aren’t cheap, but it will cost you more in legal fees fighting over a bad contract in court or a FEC audit. On a basic level, consultant contracts should provide enough details to know exactly which services will be provided, which services will not, and the prices you will charge. The beginning of a new election cycle is a great time to update your contract to help avoid some of the same mistakes from the previous cycle. Both consultants and their clients will ultimately benefit and avoid wasted time and money in court battles.
Consultant work is a product. Who owns it?
A legal dispute between campaign and consultant can come up when either party finds out the other is continuing to use work product after a campaign or business relationship ends. The types of product vary depending on the consultant’s business, but most contracts tend to only cover ownership terms in boiler plate or general confidentiality terms without listing specifically who owns the voter lists, supporter lists, voter maps, advertisements or scripts.
Whether it is the consultant, client or both, consultants should define who has an ownership interest or license to the product. There is no right answer. Every situation is different, but the question is whether you have it in writing.
Don’t be that consultant who makes an illegal corporate contribution.
Money gets tight at the end of a campaign. If your business is set up as a corporation, you cannot simply reduce or forgive amounts owed if the client cannot pay your last bill after election day. By doing so, many consultants don’t realize they may make an illegal corporate contribution. While individual or single member limited liability companies may be able to contribute personal services of its owners, even these exceptions won’t apply to the cost of goods provided or the services of other employees. The FEC has detailed debt settlement procedures and the process can be just as bad as Bankruptcy Court.
Breaking up is not easy.
While some consultants provide services on an ongoing basis and others perform project based work, all consultants should consider whether their contract has a practical termination clause. Consultants will want out early if a client stops paying, refuses to cooperate or maybe just isn’t a good person. Does your contract give you the flexibility to walk away or are you setting up hurdles for yourself?
Politics is a risky business. Be smart and plan ahead for common legal concerns at the beginning of each client relationship. No client is worth risking your reputation, business, or personal freedom. When in doubt, talk to a lawyer.
Christina Needham is an attorney at Political.Law, a campaign finance and political law firm.