By: Thomas J. Spulak – Partner and Chair, King & Spalding Government Advocacy & Public Policy Group
As we enter the home stretch of the 2016 campaign season, many will double down on their efforts to assist their favorite candidates for federal office. Many of these eager advocates work for corporations and accordingly face a host of rules and restrictions in their efforts. To help employers and employees stay on the right side of the law, we address some common issues and provide guidance in each of the areas.
Campaign Activities at the Workplace
Remember that corporations are prohibited from making contributions in federal elections. A contribution includes services, i.e., an in-kind contribution. Many employers confuse efforts to raise money for their PAC with raising money for a candidate. Corporations and their employees can do virtually anything they want to raise money for their PAC. The opposite is true for candidates—corporations may not use resources or employees to raise money for candidates.
A corporate executive who has committed to raising money for a federal candidate must be acutely aware of the restrictions of doing so at the workplace and with corporate resources. She may do so on her own time but may not use any corporate facilities, services, or equipment to raise money for a federal candidate without reimbursing the corporation for the market value of the corporate benefits. (There is a very limited exception that permits the use of things such as telephones, but any increase in the cost to a corporation must be reimbursed.) She may contact colleagues and solicit them for contributions, but this must be done in a personal capacity and not using her corporate title. One important rule—she may never use administrative help, such as a secretary, to assist in her personal fundraising unless she reimburses the corporation in advance for the fair market value of the administrative support. This includes that portion of salary and benefits to which the employee was entitled. She should not instruct potential donors to return contributions to her secretary, in fact, it is best to have contributions sent directly to the candidate. For those concerned about getting credit, it is perfectly permissible to advise a donor to reference your solicitation in transmitting the contribution to a candidate. If the executive is hosting an event at the office, she must be sure either she or the campaign reimburses the corporation for the fair market value of the use of the room and any associated help, such as staff time to set up and clean the room. If she is going to provide food for the event, she must be sure to reimburse the corporation in advance for any catering services.
Volunteering for a Campaign
Sometimes, individuals take time to work on a campaign. For a corporate employee, this is permissible, provided that the employee is doing so on their own time, such as earned leave. If the employee does not have leave available, then he or she must take unpaid leave—they may not be paid for the time working on the campaign. And, while on unpaid leave, the employee may continue to receive benefits, such as health insurance, but must reimburse the corporation for the employer’s share of the benefits. By the same measure, an employer may not pay the expenses of the employee incurred in travelling to the state or district where they intend to volunteer; nor may the employer pay for their expenses while on the campaign trail.
And, while on this subject, the payment by the employee will not count as a contribution for the purposes of the federal contribution limits as long as the cost of the travel is limited to $1,000 per election. While working on the campaign, the payment of room and board by the employee is also not considered a contribution.
Direct Monetary Contributions
Finally, employees may make direct monetary contributions to candidates and their campaigns. For the 2015-2016 election cycle, such contributions are limited to $2,700 per election per candidate, with a primary and general election deemed separate elections. Additional limits apply to contributions to political parties and other political committees.
Employees of corporations do not lose their First Amendment rights when they are hired but they must separate their corporate identities from their personal ones. They must avoid using corporate facilities, services, or personnel when engaging in campaign-related activities. Failure to do so could subject the corporate employer to significant enforcement actions under the concept of corporate facilitation. This is an increasingly active area of enforcement by the Federal Election Commission and the Department of Justice.