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Criminalization of Politics: Should Your Company Be Politically Active?

Recent U.S. Supreme Court decisions, including Citizens United, seem to create a more welcoming environment for corporations and their role in political campaigns. However, a growing trend toward investigating political misconduct allegations criminally rather than civilly warrants proceeding with caution. Companies need to know the risks before entering the political arena.

Money has been a factor in political campaigns since our country started. The first candidates for office self-financed their campaigns. Although they did not solicit contributions, they often were the giftgivers. In his 1758 campaign for the Virginia House of Burgesses, for example, George Washington spent nearly 40 pounds on food and alcohol for voters. Fundraising and campaigning as we know it today may have begun with Andrew Jackson’s run for president in 1828.

Yet, the current climate surrounding campaign contributions paints money as bad for politics. On one end of the spectrum is the fear that people can unfairly buy desired outcomes with political donations, i.e., bribery. On the other end of the spectrum is the practice of using money to conduct legitimate constituent services. Between the two sits a murky middle.

Contributors face great risk when political misconduct is alleged. State and federal enforcement officials have a lot of discretion on when to launch investigations. And it is the investigations — not the trials, which rarely happen — that can cost companies the most in reputation and finances.

In conducting an investigation, government agents also enjoy a broad array of search and seizure tools and, moreover, if they stumble upon other issues in the course of an investigation, they can prosecute on those as well. The government also can approach a company’s banks and email providers without prior notification.

State courts have broadly defined campaign finance laws and interpreted them differently. In addition, people sometimes use campaign finance violations as a vehicle to even political scores. Add media coverage of the investigation and a highly charged environment develops for contributors to navigate. But companies can minimize their risk in a few ways, including:

  • Develop a plan to achieve intended outcomes and anticipate issues and roadblocks that might arise in pursuing those objectives.
  • Promote policies that encourage employees to self-censor company emails. No one should send emails that could not be made public without exposing the company to liability.
  • Implement procedures to protect and store company records.

This article was written by Todd Graves.

Graves Garrett, LLC, represents businesses and executives nationwide in commercial litigation, white collar criminal defense litigation, and all levels of legal compliance. The firm offers comprehensive and creative solutions to complex legal problems along with unparalleled client service and a true commitment to obtaining the best result possible.

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