Political Law

February 16, 2023, Covington Alert

The 2023 proxy season is underway for public companies and their investors. Corporate secretaries, lawyers, and executives are actively engaged in the SEC’s shareholder proposal process. Consistent with recent proxy seasons, a significant number of companies are receiving proposals calling for new or enhanced political disclosures. Although these proposals have been around for some time, recent contentious election cycles, debate over hot-button issues, including the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, and increased investor focus on ESG matters (as well as criticism of such focus) have cast an ever-increasing focus on disclosure of corporate political expenditures.

Effectively responding to shareholder proposals on this issue is essential. Although shareholder proposals are non-binding, proposals that are approved – or that fail but with a substantial level of support – will give rise to an expectation that the company will address the subject matter of the proposal in the months following the annual meeting. A company’s failure to act on a shareholder proposal that is approved or that receives strong support can result in reputational damage to the company and could signal to shareholders and proxy advisory firms that the board is not responsive to a matter of significant shareholder concern. This can give rise to further shareholder proposals and potential votes against some or all of the company’s directors at the next annual meeting. In some circumstances, failure to effectively respond to a shareholder proposal could lead activist investors to threaten or initiate a proxy contest in advance of the next annual meeting.

In recent years, shareholders have submitted hundreds of proposals aimed at encouraging companies to voluntarily disclose more information on their websites with regard to their corporate political spending and processes. In Covington’s 2015 guide on “Responding to Corporate Political Disclosure Initiatives,” we noted that “although some have argued that these efforts are primarily intended to force companies to scale back their lobbying and political activities—not to promote transparency—they continue unabated.” The pace and breadth of these proposals has expanded in the ensuing years, with a significant number of shareholder proposals focused on two topics—political contributions and lobbying expenditures. According to the Center for Political Accountability (“CPA”), its model political disclosure resolution was used 22 times each in the 2021 and 2022 proxy seasons, resulting in six votes in excess of 50 percent in 2021 and two in 2022. We expect, and have begun to see, a similar number of politically-focused shareholder proposals this proxy season. As of December 2022, for example, CPA reported that its shareholder partners have “filed 25 proposals in the 2023 proxy season, with more expected over the coming months.”…

Continue Reading Tips for Responding To Corporate Political Disclosure Shareholder Proposals

Never in our decades of working on and around Capitol Hill and the White House have we seen as much anti-business sentiment among Republican lawmakers as we do today. And the trend shows no sign of abating.

There was a time when American corporations could count on unequivocal Republican support. To  be a Republican was virtually synonymous with supporting free market principles, capitalism and business. Republican President Calvin Coolidge once said, “the chief business of the American people is business.” Today, however, many Republicans scoff when they’re told that big business’ trade associations are for x or against y. They believe many companies have abandoned their trust in market forces for a “crony capitalism” that protects favored industries. Industries that profit from government programs are viewed with particular suspicion.

Conservatives say that it is not they who have moved away from business, but rather business which has moved away from them. Many Republicans see corporate America as lining up with the Progressive agenda on climate, ESG, mandatory vaccinations, sexual orientation and gender issues, voter ID laws, gun rights, speech restrictions, policing and abortion, leading them to believe that Wall Street is adverse not just to traditional values but also to conservative economic and constitutional principles. Social media companies have gained special opprobrium from Republicans for their content moderation policies, which they believe favor Progressives and suppress conservative content.…

Continue Reading Republicans Are Moving Away from Big Business

Trade associations, 501(c)(4) social welfare organizations, other outside groups that pay for
political advertisements, and their donors now have more answers to long-running questions
regarding when donations to these groups are publicly reportable. After postponing
consideration of the issue during its previous meeting, the Federal Election Commission (“FEC”)
approved Wednesday an interim final rule on donor disclosure. The interim rule amends the
federal regulations that describe when outside groups that pay for independent expenditures–
advertisements that expressly advocate the election or defeat of a clearly identified candidate–
must publicly disclose on FEC reports the names of their donors. The amended rule will take
effect 30 legislative days after the FEC transmits the new rule to Congress, which the FEC
anticipates will be September 30, 2022.

The interim rule brings the FEC’s regulations into harmony with a 2018 court decision that
invalidated a long-standing regulation, 11 C.F.R. § 109.10(e)(1)(vi), requiring outside groups to
disclose only those donors who contributed at least $200 to the outside group “for the purpose
of furthering the reported independent expenditure.” The interim final rule strikes the regulation
entirely. However, the FEC added a note to 11 C.F.R. § 109.10(e)(1) that clarifies the remaining
portions of the regulation and the relevant statute are still in effect.

In the wake of the 2018 decision, many questions remained about when these groups must
disclose donor names. The revised regulation itself was not meant to answer those questions; it
was simply meant to harmonize regulations on the books with existing court decisions. Some of
these questions were answered by an unusual guidance document the Commission posted to
its website after the 2018 decision. That guidance, which remains in effect, provides that groups
(other than political committees) that pay for independent expenditures must disclose the names
of donors of over $200 who made contributions “earmarked for political purposes” during the
reporting period.…

Continue Reading FEC Commissioners Issue New Guidanceon Donor Disclosure for Groups Paying forPolitical Advertisements

The 2021 report from the Government Accountability Office (“GAO”) offers new details on the landscape of Lobbying Disclosure Act (“LDA”) compliance and enforcement.  The report is based on random audits of lobbyists’ filings and analysis of enforcement by the U.S. Attorney’s Office for the District of Columbia (“USAO”).

The report included several trends GAO identified…

Corporations, trade associations, non-profits, other organizations, and individuals face significant penalties and reputational harm if they violate state laws governing corporate and personal political activities, the registration of lobbyists, lobbying reporting, or the giving of gifts or items of value to government officials or employees. To help organizations and individuals comply with these rules, Covington…

With a growing chorus of support across the progressive landscape, the For the People Act of 2021 has emerged as a key legislative priority for congressional Democrats in the 117th Congress.  Envisioned as a “transformational anti-corruption and clean elections reform package,” the bill would enact sweeping changes to federal election laws along with important changes

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Recently, the Senate adopted a power-sharing agreement providing some contours for organizing the equally divided body.  As we have discussed previously, such agreements are very rarely needed.  The Senate has only faced a 50-50 partisan split a handful of times.  The most recent instance, in 2001, prompted the first power-sharing agreement, which served as a

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Today Covington released an updated version of its manual for Chiefs of Staff to Members of Congress concerning best practices for responding to government investigations of Members and their staff.  Titled “A How-To Guide for Chiefs of Staff,” the manual describes how government investigations of Members and staff unfold and the steps that Chiefs of

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With the election over, the process of selecting and vetting individuals to fill the next administration’s key appointed positions is quickly shifting into high gear. For those who are called to serve in such positions, the decision to enter the process may be one of the most important and life-changing decisions they ever make. Accordingly,

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