Brett Kappel

Tuesday, 24 May 2005 06:39

Tightening the rules

The Municipal Securities Rulemaking Board (MSRB) has proposed amendments to Rule G-37 that would effectively require financial services companies to isolate their municipal securities operations from all company political activities.

The proposed amendments would force political action committees (PACs) operated by bank holding companies or affiliates of municipal securities dealers to impose strict new controls on the way PACs make campaign contributions.

The MSRB adopted Rule G-37 in 1994 to combat the perception that a pay-to-play system had corrupted municipal securities markets by forcing municipal securities dealers to make campaign contributions to state or local officials in order to receive underwriting business. The existing rule does not prohibit dealers from making campaign contributions per se.

Instead, it bars a municipal securities dealer from doing business with any issuer of municipal securities for two years after the dealer makes a campaign contribution to any official with the ability to influence the awarding of municipal securities business. The rule applies to campaign contributions made by municipal securities dealers, the dealer's municipal finance professionals (MFPs), any PAC controlled by the dealer or any of its MFPs.

The proposed amendments are a direct result of a series of articles in the New York Times that reported that campaign workers for New York Gov. George Pataki were exploiting a loophole by soliciting contributions from MFPs and instructing them to send their contributions to the New York State Republican Housekeeping Fund instead of the Pataki campaign.

The Times reported that a J.P. Morgan Chase PAC contributed $100,000 to the New York State Republican Housekeeping Fund in 2002, the same year J.P. Morgan Chase was chosen to be the lead underwriter of $1.8 billion in New York Metropolitan Transportation Authority bonds.

In response, the MSRB issued an extraordinary notice concerning indirect violations of Rule G-37 on Aug. 6, 2003. The MSRB stated that it was "concerned with increasing signs that individuals and firms subject to the rules may be seeking ways around Rule G-37 through payments to political parties or nondealer-controlled PACs that find their way to" issuer officials, and by "significant political contributions by dealer affiliates (e.g. bank holding companies and affiliated derivative counterparty subsidiaries) to both issuer officials and political parties."

The MSRB reminded dealers that Rule G-37 "covers indirect as well as direct contributions to issuer officials" and that "the rule also prohibits MFPs and dealers from using conduits -- be they parties, PACs, consultants, lawyers, spouses or affiliates -- to contribute indirectly to an issuer official if such MFP or dealer cannot give directly to the issuer without triggering the ban on business."

Finally, the MSRB warned that if it learned "of specific problematic dealer practices that it believes must be addressed more directly, the board may proceed with additional rulemaking" to expand the scope of Rule G-37.

On Feb.15, 2005, the MSRB issued proposed amendments to prevent these indirect contributions by effectively expanding the rule to apply to any entity affiliated with the dealer as well as any PAC operated by any affiliated entity. The MSRB proposes to add a new section (c)(ii) to Rule G-37 to prohibit a dealer and certain MFPs from soliciting any affiliated entity or PAC "to make or coordinate a payment to a political party of a state or locality where the dealer is engaging or seeking to engage in municipal securities business."

The MSRB's proposed rulemaking states that this "clarification" of Rule G-37 is "intended to alert dealers and MFPs that influencing the disbursement decisions of affiliated entities or PACs may constitute a direct violation of Rule G-37" and trigger the ban on business.

If adopted, the proposed amendments would effectively require integrated financial services companies and bank holding companies to insulate their municipal securities operations from all company political activities and adopt stringent new controls on campaign contributions by all of the companies' subsidiaries, affiliates and federal and state PACs.

Brett Kappel is of counsel in the Government Relations and Lobbying Practice Group of Vorys, Sater, Seymour and Pease LLP. His practice is focused on government relations and campaign finance law. For more information, reach Kappel at (202) 467-8886 or bgkappel@vssp.com.

Thursday, 24 February 2005 08:53

Contributing factors

The Federal Election Commission (FEC) is considering a proposed rule to eliminate a 28-year-old regulation that has hampered fund-raising by trade association political action committees (PACs). If adopted, the proposal will enhance the clout of Ohio businesses and trade associations in Washington, D.C.

Approximately a dozen Ohio trade associations, including the Ohio Bankers Association, the Ohio Farm Bureau Federation and the Ohio Grocers Association, have established federal PACs. Other Ohio trade groups may want to consider creating a federal PAC if the FEC adopts the proposal.

The proposed rule would allow trade association federal PACs to collect contributions through automatic payroll deductions from employees of member companies. Ohio trade associations have long been able to collect contributions to their state PACs from member company employees via payroll deduction.

The use of automatic payroll deductions could allow trade associations to boost their annual fund-raising by as much as 100 percent. Corporate PACs have enjoyed dramatic growth in recent years, fueled by the use of automatic payroll deductions; during the first 18 months of the 2003-04 election cycle, 32 corporate PACs reported receiving more than $1 million in contributions.

The FEC proposal may enable smaller trade associations in Ohio to establish federal PACs for the first time. This may be especially true for trade associations representing service industries, whose lower-wage workers are more likely to contribute $10 to $15 per pay period via an automatic payroll deduction than to write one annual check for $500.

FEC regulations have long stated that there are no limitations on the methods that a trade association may use to solicit and collect contributions. However, since 1977, the same regulation has specifically prohibited member companies from using a payroll deduction system to collect contributions for a trade association's federal PAC.

Citing this inherent contradiction in the regulation and noting the widespread acceptance of automatic payment processes in the workplace over the last 25 years, America's Community Bankers (ACB) filed a petition for rulemaking with the FEC in August 2003 seeking an end to the prohibition. The FEC was required by statute to seek public comments on the ACB petition and was apparently surprised by the overwhelming support for lifting the prohibition.

Twenty-two trade associations submitted comments endorsing the ACB proposal. The FEC conceded that the ACB petition "raise[d] a reasonable question as to whether the regulatory prohibition against payroll deduction and check-off systems continues to make sense." As a result, the FEC sought comments on a proposal to eliminate the prohibition on the use of payroll deduction mechanisms.

The FEC proposal goes beyond the ACB request to affirmatively authorize a corporation to "provide incidental services to collect and forward contributions from its employee[s]. . .to the [PAC] of a trade association of which the corporation is a member, including a payroll deduction or check-off system, upon written request of the trade association."

Comments on the FEC proposal were due Jan. 21. At least one political Web site (www.blogesque.com) erroneously denounced the proposed rule as a special rule for bankers and urged its readers to submit comments to the FEC opposing the proposal. Nevertheless, FEC adoption of the proposed rule is likely, but not certain. The FEC could take final action by the summer of 2005, giving Ohio trade association PACs and businesses in the Buckeye State plenty of time to expand their operations before the mid-term elections in 2006.

Brett Kappel is with the law firm of Vorys, Sater, Seymour and Pease LLP. His practice is focused on government relations and campaign finance law. Reach him at (202) 467-8886 or bgkappel@vssp.com.

Tuesday, 24 May 2005 06:57

Tightening the rules

The Municipal Securities Rulemaking Board (MSRB) has proposed amendments to Rule G-37 that would effectively require financial services companies to isolate their municipal securities operations from all company political activities.

The proposed amendments would force political action committees (PACs) operated by bank holding companies or affiliates of municipal securities dealers to impose strict new controls on the way PACs make campaign contributions.

The MSRB adopted Rule G-37 in 1994 to combat the perception that a pay-to-play system had corrupted municipal securities markets by forcing municipal securities dealers to make campaign contributions to state or local officials in order to receive underwriting business. The existing rule does not prohibit dealers from making campaign contributions per se.

Instead, it bars a municipal securities dealer from doing business with any issuer of municipal securities for two years after the dealer makes a campaign contribution to any official with the ability to influence the awarding of municipal securities business. The rule applies to campaign contributions made by municipal securities dealers, the dealer's municipal finance professionals (MFPs), any PAC controlled by the dealer or any of its MFPs.

The proposed amendments are a direct result of a series of articles in the New York Times that reported that campaign workers for New York Gov. George Pataki were exploiting a loophole by soliciting contributions from MFPs and instructing them to send their contributions to the New York State Republican Housekeeping Fund instead of the Pataki campaign.

The Times reported that a J.P. Morgan Chase PAC contributed $100,000 to the New York State Republican Housekeeping Fund in 2002, the same year J.P. Morgan Chase was chosen to be the lead underwriter of $1.8 billion in New York Metropolitan Transportation Authority bonds.

In response, the MSRB issued an extraordinary notice concerning indirect violations of Rule G-37 on Aug. 6, 2003. The MSRB stated that it was "concerned with increasing signs that individuals and firms subject to the rules may be seeking ways around Rule G-37 through payments to political parties or nondealer-controlled PACs that find their way to" issuer officials, and by "significant political contributions by dealer affiliates (e.g. bank holding companies and affiliated derivative counterparty subsidiaries) to both issuer officials and political parties."

The MSRB reminded dealers that Rule G-37 "covers indirect as well as direct contributions to issuer officials" and that "the rule also prohibits MFPs and dealers from using conduits -- be they parties, PACs, consultants, lawyers, spouses or affiliates -- to contribute indirectly to an issuer official if such MFP or dealer cannot give directly to the issuer without triggering the ban on business."

Finally, the MSRB warned that if it learned "of specific problematic dealer practices that it believes must be addressed more directly, the board may proceed with additional rulemaking" to expand the scope of Rule G-37.

On Feb.15, 2005, the MSRB issued proposed amendments to prevent these indirect contributions by effectively expanding the rule to apply to any entity affiliated with the dealer as well as any PAC operated by any affiliated entity. The MSRB proposes to add a new section (c)(ii) to Rule G-37 to prohibit a dealer and certain MFPs from soliciting any affiliated entity or PAC "to make or coordinate a payment to a political party of a state or locality where the dealer is engaging or seeking to engage in municipal securities business."

The MSRB's proposed rulemaking states that this "clarification" of Rule G-37 is "intended to alert dealers and MFPs that influencing the disbursement decisions of affiliated entities or PACs may constitute a direct violation of Rule G-37" and trigger the ban on business.

If adopted, the proposed amendments would effectively require integrated financial services companies and bank holding companies to insulate their municipal securities operations from all company political activities and adopt stringent new controls on campaign contributions by all of the companies' subsidiaries, affiliates and federal and state PACs.

Brett Kappel is of counsel in the Government Relations and Lobbying Practice Group of Vorys, Sater, Seymour and Pease LLP. His practice is focused on government relations and campaign finance law. For more information, reach Kappel at (202) 467-8886 or bgkappel@vssp.com.