Tag: pay-to-play

New York City “Pay-to-Play” Law is Upheld

The U.S. Court of Appeals for the Second Circuit upheld a New York City “pay-to-play” law against various constitutional challenges: Ognibene v. Parkes. The Pay to play law is in Local Law 34 and it:

  1. Lowers the caps applicable to campaign contributions from parties that have “business dealings” with New York City
    • to $400 (otherwise $4,950 applies to contributors not within the purview of the Law) for candidates for city-wide offices,
    • to $320 (otherwise $3,850) for candidates for borough offices, and
    • to $250 (otherwise $2,750) for candidates for city council,
  2. Prohibits public matching for contributions from the Affected Persons, and
  3. extends a ban on contributions from corporations to apply to partnerships, LLCs, and LLPs.

“Business dealings” include, among other things, “contracts for investment of pension funds” and transactions with “lobbyists”.

The plaintiffs in Ognibeneh include Republican Party members, the New York State Conservative Party, lobbyists, and other business interests. They challenged the Law as a violation of the First Amendment, the Fourteenth Amendment, and the Voting Rights Act. They lost in the district court and made this appeal. In affirming the district court’s decision, the Second Circuit considered whether the aforementioned provisions of the Law were “closely drawn to address a sufficiently important state interest” and found that each was sufficiently closely-drawn.

The Second Circuit agreed with the district court that the “doing business” contribution limits are “closely drawn” because combating corruption and the public perception of corruption is a sufficiently important justification for placing limits on donations to a candidate. The court draws a distinction from restrictions on independent corporate campaign expenditures which were struck down in Citizens United as overly burdensome limitations on speech.

The court was not persuaded that actual “evidence of recent scandals” was needed to justify the contribution limits. “[T]o require evidence of actual scandals for contribution limits would conflate the interest in preventing actual corruption with the separate interest in preventing apparent corruption.” Finding “no doubt that the threat of corruption or its appearance is heightened when contributors have business dealings with the City” and citing studies by the City Council on the issue, the court held that it is “reasonable and appropriate” to place additional limitations on contributions by Affected Persons.

The court drew another distinguish between the Green Party case in Connecticut and this law. The Connecticut law challenged in Green Party put in place a total ban on contributions, as opposed to mere limits.  However, “if the appearance of corruption is particularly strong due to recent scandals, therefore, a ban may be appropriate.”

Of course, pay-to-play laws are not unique to New York City. The SEC’s Rule 206(4)-5 enacted a similar limit on campaign contributions. Anyone challenging the SEC rule would have to look at this case and realize the SEC rule would like stand up to court scrutiny.

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Image is New York City celebrating the surrender of Japan. They threw anything and kissed anybody in Times Square., 08/14/1945 from the US National Archives

Presidential Campaign Season and the SEC’s Pay-to-Play Rule

the great seal fo the state of iowa

With the recent Iowa Straw Poll, the presidential campaign season is getting into full gear. That also means that campaign fundraising is in full gear. I thought it would be useful to apply the SEC’s new Pay-to-play for Investment Advisors to the crop of presidential contenders.

Under SEC Rule 206(4)-5, investment advisors are limited in their ability to give campaign contributions to political candidates who can directly or indirectly influence the hiring of an investment advisor by a government-sponsored investment entity. A campaign contribution in violation of the rule means the investment advisor can not collect fees from the applicable government-sponsored investor for two years. The rule applies to registered investment advisors and fund managers that had been exempt under the now-repealed, private fund manager exemption.

The president of the United States is not an office that can directly or indirectly influence the hiring of an investment advisor, so that position is not one that is limited by the SEC Rule. However, you also need to look at the candidate’s current office to see if that position is one that is limited.

That means campaign contributions to the incumbent president, Barack Obama, are not limited by the rule. Some of his potential competitors are limited.

  1. Michele Bachmann. Her current office in the US House of Representatives is not limited by the rule.
  2. Ron Paul. His current office in the US House of Representatives is not limited by the rule.
  3. Tim Pawlenty. As Governor of Minnesota, contributions to his campaign would have been limited had he still been in office. He finished his term on January 3, 2011, which pre-dates the March 13, 2011 effective date of the rule.
  4. Rick Santorum. He does not currently hold a political office and is therefore not limited by the rule.
  5. Herman Cain. He does not currently hold a political office and is therefore not limited by the rule.
  6. Rick Perry. As the current Governor of Texas, he appoints trustees to the
  7. Mitt Romney. He does not currently hold a political office and is therefore not limited by the rule.
  8. Newt Gingrich. He does not currently hold a political office and is therefore not limited by the rule.
  9. Jon Huntsman. He does not currently hold a political office and is therefore not limited by the rule.
  10. Thaddeus McCotter. His current office in the US House of Representatives is not limited by the rule.

Registered Investment Advisors, private fund managers getting ready to register with Securities and Exchange Commission, and their employees need to be very cautious about making contributions to Governor Perry if they have a Texas state sponsored fund as a client or investor, or hope to have one as a client or investor in the next two years.

The rule also applies to placement agents. They must either be a registered investment advisor subject to SEC Rule 206(4)-5 or a municipal adviser subject to MSRB Rule G-42.

It is very obvious that SEC Rule 206(4)-5 can cause significant distortions in the political campaign.

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SEC Answers Questions About the Pay to Play Rule

The staff of the Division of Investment Management at the Securities and Exchange Commission has prepared responses to some questions about Rule 206(4)-5 under the Investment Advisers Act of 1940.

Here are a few that caught my eye:

Question II.6. Covered Associates’ Family Members.

Q: Are contributions by an advisory employee’s family members covered under the rule?

A: Generally not. However, rule 206(4)-5 and section 208(d) of the Advisers Act prohibit doing anything indirectly which would be prohibited if done directly (see rule 206(4)-5(d)).

Question II.7. Independent Contractors.

Q: If certain personnel of an investment adviser are considered “independent contractors,” rather than “employees,” for state law or tax law purposes, will they still be regarded as covered associates if they solicit or supervise those who solicit government entities on behalf of the adviser?

A: The term “employee” is not defined in the Advisers Act. The staff interprets the term “employee” to include “independent contractors” acting on behalf of an investment adviser (see Interpretive Release No. IA-1000, at II.C.3).

Question III.1. Foreign Governments.

Q: Does the definition of government entity include foreign governments?

A: No.

You can’t run political contributions through your spouse to avoid this rule and you can’t hire someone as an independent contractor to try and circumvent the rule. You can contribute to the political campaigns of foreign officials, but that raises issues elsewhere.

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SEC’s Pay-to-Play Rule Is Effective Today

Dilbert.com

If you have (or want to have) government investors in your private fund then you need to be in compliance with Rule 206(4)-5 starting today.

Summary (from the SEC):

The Securities and Exchange Commission is adopting a new rule under the Investment Advisers Act of 1940 that prohibits an investment adviser from providing advisory services for compensation to a government client for two years after the adviser or certain of its executives or employees make a contribution to certain elected officials or candidates. The new rule also prohibits an adviser from providing or agreeing to provide, directly or indirectly, payment to any third party for a solicitation of advisory business from any government entity on behalf of such adviser, unless such third parties are registered broker-dealers or registered investment advisers, in each case themselves subject to pay to play restrictions. Additionally, the new rule prevents an adviser from soliciting from others, or coordinating, contributions to certain elected officials or candidates or payments to political parties where the adviser is providing or seeking government business. The Commission also is adopting rule amendments that require a registered adviser to maintain certain records of the political contributions made by the adviser or certain of its executives or employees. The new rule and rule amendments address “pay to play” practices by investment advisers.

Limitations on Political Contributions

It is now unlawful for an investment adviser to provide “investment advisory services for compensation to a government entity within two years after a contribution to an official of the government entity is made by the investment adviser or any covered associate of the investment adviser.”

The rule defines an official as candidate for an elective office that can

  1. directly or indirectly influence the hiring of an investment adviser, or
  2. has the authority to appoint a person who can directly or indirectly influence the hiring of an investment adviser.

Unfortunately, investment advisers are left on their own to figure out if any political position is one that falls into the prohibited bucket.

De Minimis Exception

There are two de minimis exceptions. For an official they are entitled to vote for, a covered associate can contribute up to $350 per election. That exception is lowered to $150 if they are not entitled to vote for the official.

Record-Keeping

The new rule also imposes new record-keeping requirements. A private fund will need to keep track of

  1. its covered associates
  2. all government entities that are investors
  3. all contributions made to an “official of a government entity”
  4. all contributions made to a political party
  5. all contributions made to a political action committee

You don’t need to keep records if you have no government clients.

Covered Associates

The limitation on contributions only applies to “covered associates.” they key will be identifying who in the organization falls into this category. Who is a Covered Associate?

  1. Any general partner, managing member or executive officer, or other individual with a similar status or function;
  2. Any employee who solicits a government entity for the investment adviser and any person who supervises, directly or indirectly, such employee; and
  3. Any political action committee controlled by the investment adviser or by any person described in 1 or 2.

Good luck.

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Pay to Play Rules for Placement Agents

The SEC imposed strict limitations on the ability of investment advisers to make political contributions when their clients include government bodies when it issued Rule 206(4)-5. They don’t want government investment decisions decided campaign contributions. This limitation also applies to private investment funds under the language of the rule and the changes to the Investment Advisers Act made by the Dodd-Frank Wall Street Reform and Consumer Protection Act.

The SEC carried this limitation over to placement agents used by investment advisers. The placement agent needs to be subject to similar limitations. That means the placement agent would need to be a registered investment adviser or otherwise regulated. At first the SEC expected FINRA to create a new rule to govern pay-to play. Instead, Section 975 of Dodd-Frank Wall Street Reform and Consumer Protection Act created a new category of regulated persons called a “municipal adviser.” This new category will regulated by the Municipal Securities Rulemaking Board.

The MSRB has issued a proposed draft of new Rule G-42 that would limit a placement agent’s ability to make political contributions.

One major difference between this draft of Rule G-42 and SEC Rule 206(4)-5 is the definition of de minimis political contribution. The SEC allows a contribution of $350 per election cycle for candidate you can vote for or $150 for a candidate you can’t vote for. The MSRB definition would be $250 for candidate that you can vote for.

Violating the rule means you are banned from

  • engaging in municipal advisory business with a municipal entity for compensation,
  • soliciting third-party business from a municipal entity for compensation, or
  • receiving compensation for the solicitation of third-party business from a municipal entity,

for two years after any contribution to an official of such municipal entity in excess of the de minimis amount.

Proposed Rule G-42 for municipal advisers is similar to Rule G-37 for those in the municipal securities business. I expect that comments will argue that the de minimis amount should match up with the SEC’s de minimis amount.

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California’s New Placement Agent Law

California has become the latest state to regulate the use of placement agents who help investment managers secure government pension fund money. (Or is that placement agents who help government pension fund money find suitable investment managers?)

California Assembly Bill 1743 was backed by the California Public Employees’ Retirement System, the state treasurer and the state controller. Placement agents must register as lobbyists before they can pitch investment proposals to California government investors.

As Keith Paul Bishop notes in the California Corporate & Securities Law Blog

“the proposed rule does not appear to require disclosure of gifts and campaign contributions to losing candidates for positions that have the authority to appoint persons to the CalPERS Board.  This is not consistent with the Securities and Exchange Commission’s recently adopted “time out” Rule 206(4)-5 for investment advisers which appears to cover contributions to both successful and unsuccessful candidates.  Nor is this approach consistent with the Municipal Securities Rulemaking Board’s interpretation of Rule G-37 (See FAQ II.22)”

Meanwhile CalPERS is has its own rules which area bit stricter. Placement agents must report gifts and campaign contributions made to all Board members as well as to persons who have the authority to appoint persons to the CalPERS Board: the Governor, the Speaker of the Assembly, and the members of the Senate Rules Committee.

One point to focus is the definition of “Placement Agent.” An investment manager’s employees, officers, directors, and equityholders who solicit California public retirement systems for compensation may be placement agents under the definition, unless they spend more than one-third  of their time during the calendar year managing securities or assets of the manager. With respect to solicitation of CalPERS and CalSTRS only, if the manager is registered with the Securities and Exchange Commission as an investment adviser or broker-dealer, is selected through a competitive bidding process, and has agreed to a fiduciary standard of care applicable to the retirement board, then the employees, officers, and directors of a manager will not be a placement agent.

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A Closer Look at the new SEC Rule 206(4)-5 on Pay to Play

Over the weekend, the Securities and Exchange Commission released the full text of Rule 206(4)-5 in Release No. IA-3043. I made few notes during the broadcast of the open meeting, but there were lots of unanswered questions.

Rule 206(4)-5 is only 12 pages long, but Release IA-3043 also includes another 190 pages of commentary and discussion.

Summary (from the SEC):

The Securities and Exchange Commission is adopting a new rule under the Investment Advisers Act of 1940 that prohibits an investment adviser from providing advisory services for compensation to a government client for two years after the adviser or certain of its executives or employees make a contribution to certain elected officials or candidates. The new rule also prohibits an adviser from providing or agreeing to provide, directly or indirectly, payment to any third party for a solicitation of advisory business from any government entity on behalf of such adviser, unless such third parties are registered broker-dealers or registered investment advisers, in each case themselves subject to pay to play restrictions. Additionally, the new rule prevents an adviser from soliciting from others, or coordinating, contributions to certain elected officials or candidates or payments to political parties where the adviser is providing or seeking government business. The Commission also is adopting rule amendments that require a registered adviser to maintain certain records of the political contributions made by the adviser or certain of its executives or employees. The new rule and rule amendments address “pay to play” practices by investment advisers.

Limitations on Political Contributions

It is unlawful for an investment adviser to provide “investment advisory services for compensation to a government entity within two years after a contribution to an official of the government entity is made by the investment adviser or any covered associate of the investment adviser.”

The rule defines an official as candidate for an elective office that can

  1. directly or indirectly influence the hiring of an investment adviser, or
  2. has the authority to appoint a person who can directly or indirectly influence the hiring of an investment adviser.

Unfortunately, investment advisers are left on their own to figure out if any political position is one that falls into the prohibited bucket.

De Minimis Exception

There are two de minimis exceptions. For an official they are entitled to vote for, a covered associate can contribute up to $350 per election. That exception is lowered to $150 if they are not entitled to vote for the official.

A primary election is separate election from the general election. [Release page 63]

Those are increases from the proposed rule.

Who is a Covered Associate?

  1. Any general partner, managing member or executive officer, or other individual with a similar status or function;
  2. Any employee who solicits a government entity for the investment adviser and any person who supervises, directly or indirectly, such employee; and
  3. Any political action committee controlled by the investment adviser or by any person described in 1 or 2.

Placement Agent Ban

The rule retreated from the complete ban on placement agents that was in the draft rule. The SEC seems willing to put a ban in place. For now, the rule allows you to use a placement agent provided that they are either an SEC registered investment adviser or a SEC registered broker dealer. The extra limit on the broker dealer is that they have be subject to a an equivalent restriction on political contributions. Something that  is not yet place. Apparently, FINRA is working on pay-to-play regulations for broker-dealers.

Does Rule 206(4)-5 Apply to Private Funds?

Rule 206 (4)-5 will apply to registered investment advisers and unregistered investment advisers who are relying on the small adviser exception to registration. (Of course, that exception is scheduled to be eliminated shortly as part of the financial reform legislation.)

Also, the rule deems the adviser to a “covered investment pool” to be providing investment advisory services directly to the investor in the pool.

Therefore, private equity fund managers and their employees will be subject to this rule. Even venture capital fund managers who managed to keep a registration exemption in the financial reform bill will need comply with this new rule.

The financial reform bill is bumping the SEC registration up to $100 million from $25 million. That means a bunch of advisers and small funds will fall out from having to comply with this rule since it does not apply to state-registered advisers.

Record-Keeping

The new rule also imposes new record-keeping requirements. A private fund will need to keep track of

  1. its covered associates
  2. all government entities that are investors
  3. all contributions made to an “official of a government entity”
  4. all contributions made to a political party
  5. all contributions made to a political action committee

You don’t need to keep records if you have no government clients.

What’s a Contribution?

“[A]ny gift, subscription, loan, advance, or deposit of money or anything of value made for:

(i) The purpose of influencing any election for federal, state or local office;
(ii) Payment of debt incurred in connection with any such election; or
(iii) Transition or inaugural expenses of the successful candidate for state or local office.”

Cash donations are clearly contributions. The release says that volunteer activity is not a contribution.[Release Page 23]

Effective Date

The rule has not made its way into the federal register, but will be effective 60 days after publication.

The limitations on political contributions and the record-keeping requirments have a compliance deadline of six months after the effective date. That means you need to get ready by the end of this calendar year, with the actual deadline likely to be in early March.

The limitation on the use of third parties to solicit government business has a compliance deadline one year after the effective date. That will likely be sometime during the summer of 2011.

SEC Votes on Pay to Play

At Wednesday’s Open Meeting the Securities and Exchange Commission took up the discussion of their proposed rules on pay-to-play for investment advisers. The proposal is a new Rule 206 (4)-5 under the Investment Advisers Act. The Commission voted unanimously to adopt the rule.

The rule will have three main prongs:

Two Year Time-Out

An investment adviser who makes a political contribution to an elected official in a position to influence the selection of the adviser would be barred for two years from providing advisory services for compensation, either directly or through a fund.

There will be two de minimis exceptions. For an official the person can vote for, you can contribute up to $300 350. That exception is lowered to $150 if you are not entitled to vote for the official.

There is a limited ability to get a return of a political contribution for inadvertent violations. It sounds like this will be difficult.

There was a mention that the political contributions limitation may not affect all employees of an investment adviser.

Coordination

The proposed rule also would prohibit an adviser from coordinating, or asking another person or political action committee to:

  1. Make a contribution to an elected official (or candidate) who can influence the selection of the adviser.
  2. Make a payment to a political party of the state or locality where the adviser is seeking to provide advisory services to the government.

The SEC does not want investment advisers to be gatekeepers or aggregaters for political contributions to elected officials who select investment advisers for government funds.

Placement Agents and Solicitors

The third prong would prohibit advisers from hiring third party persons to act as agents or solicitors for an investment adviser unless the third party is a regulated person subject to pay-to-play regulation similar to this rule. The placement agents will need to a registered investment adviser or broker-dealer.

The comments to the flat ban resulted in the most comments to the rule. This is the biggest change to the final rule will vary from proposed rule.

They are going to keep a close eye on placement agents. If there continues to be a problem, the SEC is prepared to put a complete ban in place.

Catch-All

There is a catch-all provision is the rule that prohibits indirect violation of the rules.

Applicability

Rule 206 (4)-5 will apply to registered investment advisers and unregistered investment advisers who are relying on the small adviser exception to registration. (Of course, that exception is likely to be eliminated shortly as part of the financial reform legislation.) Private equity fund managers and their employees will be subject to this rule.

There will be a one year period before the placement agent limitations are effective. This is designed to give FINRA time to enact its new regulations on pay-to-play.  It’s not clear if the one-year period is applicable for the other parts of Rule 206 (4)-5.

First Amendment

Commissioner Casey raised a concern that the rule not violate the first amendment rights to engage in the political process. She thought the rule struck a good balance. Commissioner Parades was concerned about rogue employees making contributions in violation of the policy.

Full Text

As is typical with the SEC rules, the final text of Rule 206 (4)-5 was not released at the time of the vote. Keep an eye out for the final release and its detailed requirements.

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SEC’s Rule on Pay to Play is Coming

It’s been almost a year, but it looks like the SEC is ready to issue its rule on political contributions by investment advisers. They announced the subject matter for the Wednesday June 30 10:00 am open meeting:

The Commission will consider whether to adopt a new rule and related rule amendments under the Investment Advisers Act of 1940 to address “pay to play” practices by investment advisers. The new rule is designed to prohibit advisers from seeking to influence the award of advisory contracts by public entities by making or soliciting political contributions to or for those officials who are in a position to influence the awards.

Since private equity funds will have to register as investment advisers, the rule will be applicable.  Actually, the proposed rule was drafted to be applicable to registered investment advisers or those unregistered in reliance on the exemption under Section 203(b)(3), so it would have been applicable to most private equity funds anyhow.

Back in April, the SEC engaged FINRA to craft rules for registered broker-dealers when acting as a placement agent soliciting investments from government investors. That would make it likely that placement agents will not be banned, but merely subject to some additional regulatory requirements.

The proposed rule limited political contributions to $250 per election per candidate if the contributor is entitled to vote for the candidate. Otherwise, the investment adviser would be subject to a two-year ban on providing advisory services for compensation to that government investor.

Private equity firms gearing up for registration will need to include a policy on political contributions. Next week we will not what need to be in that policy.

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FINRA and Placement Agents

Will FINRA step in to prevent a ban on placement agents working with government investors?

You may remember that last August, the SEC published a proposed rule that would create a prohibition on paying a third party, such as a placement agent, to solicit a government client on behalf of the investment adviser: IA-2910. The rule has generated lots of comments. The intent of the proposed rule is to prevent “pay-to-play” scandals. A noble and worthy goal.

The SEC seems to be softening its position on the placement agent ban. In a December 18 letter, the SEC asked FINRA if they would interested in crafting some rules for registered broker-dealers in dealing with government investors. Legitimate placement agents (such as FINRA-registered broker-dealers) “could be subject to separate regulations that might restrict their ability to engage in pay to play activities on behalf of their investment adviser clients.”

It took three months, but FINRA responded to the SEC with a “yes“.

“I am delighted to state that we are in a position to promulgate such a rule. We believe that the FINRA proposal should impose regulatory requirements on member broker-dealer placement agents as rigorous and as expansive as would be imposed by the SEC on investment advisers. We believe that a regulatory scheme targeting improper pay to play practices by broker-dealers acting on behalf of investment advisers is both a viable solution to a ban on certain private placement agents serving a legitimate function.”

It sounds like SEC is getting closer on making a decision about its pay to play rule. Perhaps the FINRA rule will make it easier to deal with.

In the interest of disclosure, my company uses placement agents in its dealings with investors, including government investors.

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