In BNA’s article, “Win or Lose, Campaign Staffers Usually Unemployed After Election,” Josh Rosenstein discusses the effects of the new wage and overtime rules on campaign staffers and political organizations.
“Campaigns are, like most other employers, faced with Fair Labor Standards Act compliance issues, and they tend to spend a lot of time ensuring labor laws are understood and adhered to, said Joshua Ian Rosenstein of Sandler Reiff Lamb Rosenstein & Birkenstock P.C. in Washington.
‘There is a very complicated interplay between federal regulations and what may be in place for state law,’ Rosenstein said.”
On Wednesday, the Trump transition team announced its position on lobbyists in the administration. The team said that it would allow lobbyists to join the administration, as long as they de-registered their clients, but prohibits its officials from lobbying for five years after they leave the administration. Josh Rosenstein discusses these regulations further in CQ Roll Call’s article, “Trump Ban Could Drive More Lobbying Into Shadows.”
“If the Trump administration’s restrictions are aimed at congressional and state lobbying on matters unrelated to ex-officials’ executive branch policy issues, then the Trump proposal could run afoul of the First Amendment, said Joshua Ian Rosenstein, a lobbying and ethics lawyer with Sandler Reiff Lamb Rosenstein & Birkenstock. “Does the president have the ability to enforce this contract — to prohibit someone from lobbying Congress on unrelated matters? Does the government have the ability to do the same thing, infringe on people’s First Amendment rights to lobby on unrelated matters, with state and local governments? I don’t think they do,” Rosenstein said. He added that the shift could result in more lobbyists hiding their clients and their work from the public view of disclosure laws — a phenomenon that increased during the Obama presidency. The nonpartisan Center for Responsive Politics, for example, looked at lobbyists who were registered in 2011 but were not registered in 2012. It found that more than 46 percent of those who had de-registered were still working for their same employers, “suggesting that many have simply avoided the reporting limits while still contributing to lobbying efforts,” the group said. “It may drive a number of individuals who have thus far been complying with the law into the realm of shadow advocacy, which causes a whole other set of ethics issues,” Rosenstein said.”
Josh Rosenstein recently followed-up with the Hill to discuss FARA and the resignation of Paul Manafort further. In the article, Rosenstein explained that part of the reason for FARA’s low prosecution rate is due to the fact that the law primarily hinges on voluntary compliance.
If someone does not file paperwork correctly – or at all – the Justice Department will send a letter to the lobbyist or firm asking them for corrections, to register with the department as a foreign agent, or explain why registration is not necessary.
Simply updating records, even months or years after non properly disclosing work, can be enough to satisfy the DOJ.
“It’s clear that they’re hamstrung in their ability to ensure full compliance. They can’t subpoena, they can’t prosecute on their own,” Rosenstein said. “They’ve got the carrot but not the stick.”
Josh Rosenstein discusses the Foreign Agents Registration Act (FARA) in an article recently published by The Hill on Paul Manafort’s role in helping a Ukrainian political party secretly pay U.S. lobbyists.
“The U.S. entity may still be liable for some violation of FARA if the principal lied to it, but it’s unlikely there would be a criminal prosecution or jail time as long as the U.S. entity did its due diligence,” Josh Rosenstein stated.
Rachel Provencher and Jack Young recently co-authored a chapter in the newest edition of “America Votes! Challenges to Modern Election Law and Voting Rights.” The book provides a snapshot of key election and voting rights issues that the United States faces moving into the 2016 election. In their chapter, entitled “The Administrative Challenges for Recounts, Contests, and Post-Election Audits”, Rachel Provencher and Jack Young explore several factors that account for the inability to create bright-line rules regarding recounts and contests.
Neil Reiff and David Mitrani were quoted in an article this week in The Guardian regarding campaign finance and the role of money in American elections:
“A lot of these organizations have overspun. Mayber Super Pac money can buy you name recognition but it can’t buy you legitimacy with name recognition. Look at Jeb Bush,” said Neil Reiff.
David Mitrani agreed that Super Pacs led to “a decentralization of our political system. The power passed to Super Pacs from the political parties. Now fringe groups on both sides of the aisle that can raise money from larger or grassroots donors have the same or a bigger voice than the parties. That really hurt the state parties which find themselves in dire financial straits.”
On behalf of the Chair of the Minnesota Democratic Farmer-Labor Party, Neil Reiff and his colleagues wrote a petition intended to strengthen political parties. The petition seeks amendments to sections under Title 11 of the Code of Federal Regulations and proposes to loosen rules governing state and local party fundraising.
Recently, Josh Rosenstein and Joe Birkenstock co-authored a short article on lobbyists.info about the delayed OGE Rulemaking. In the article, Rosenstein and Birkenstock discuss the broad set of ethics standards for employees of the executive branch of the federal government, the issuance of Executive Order 13490 by President Obama, and the most recent proposed rule in November 2015. Rosenstein and Birkenstock go on to analyze the future of the yet to be issued final rule.
Joe Birkenstock was quoted in an LA Times article that examined whether state Sen. Isadore Hall (D-Compton) and his campaign for the 44th Congressional District of California violated Federal Election Law.
Joseph Birkenstock said it appears Hall’s campaign did violate the law. But if it can amend and correct the expenditure reports, Hall could be in the clear.
“It is not a meaningful violation as long as they correct it and as long as those disbursements really were general election disbursements,” Birkenstock said.
Joe Birkenstock was quoted in a Time article that examined how data and personal information is collected from presidential campaign supporters:
Typically, political campaigns gather donor information like names, mailing addresses, employers, and occupations, and sooner or later sell this information to other political groups. Less specific “metadata” can also be sold or “rented” to for-profit data brokers. Joe Birkenstock, former Chief Counsel of the Democratic National Committee and partner at D.C. law firm Sandler Reiff, says that such metadata can be extremely valuable, giving candidates indications about the state of mind of certain donors and the effectiveness of different speeches on contributions.
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Donors should take a second to read the privacy policy on the site for the candidate they’re donating to,” advises Birkenstock. “Make sure you can reach your own conclusions about the policy and you’re comfortable having your contact information shared.”
