Making Decisions on Corporate Campaign Expenditures by Thomas J. Spulak

by King & Spalding

The Nation has just witnessed one of the most expensive election campaigns - with over $6 billion spent by candidates, political parties and committees. Whether all of that money made a difference remains to be seen. One thing that is known, however, is that turnout was lower in this election than in several previous presidential races.

This was the first presidential election since the Citizens United decision, which permitted corporations to make independent expenditures on behalf of federal candidates, and while few corporations made direct independent expenditures, many did contribute to Super PACs and, it is believed, 501(c) organizations as well.

Before, during and since the election, politicians, interest groups and the editorial pages have called for a change in the law to prohibit corporations from engaging in federal elections. Absent a constitutional amendment - which is unlikely to happen - it is possible that Congress could enact legislation that would require greater disclosure of corporate activities, likely directed toward increased regulation of 501(c) groups which do not have to disclose their donors publicly.

Corporations, however, are facing their own challenges from shareholder groups that want to use the proxy process to force corporations to adopt policies that range from prohibitions on political expenditures to disclosure of such activities. With the 2014 mid-term elections on the horizon and the beginning of the 2016 presidential election not too far off, corporations would be well advised to consider whether and how they will engage in the political process in the years to come. A good number of leading S&P 500 companies already have adopted various types of policies. These include policies that address:

• Whether the corporation makes political independent expenditures;
• Whether the corporation will make contributions to third party groups’ political committees, such as Super PACs or other registered political committees (such contributions are reported to the Federal Election Commission and publicly available);
• Whether the corporation will make contributions to 501(c) organizations, e.g., trade associations and social welfare organizations (such contributions are not disclosed publicly);
• Whether the corporation will disclose any contributions it makes to 501(c) organizations;
• Whether the corporation will disclose all of its political contributions;
• What role, if any, the board will have in deciding what political expenditures the corporation will make.

Corporations can make these decisions on their own or they may find that they are forced to do so. Shareholder rights groups working with public interest groups are trying to force corporations through proxy fights to adopt such policies, often the most restrictive types. And, the Securities and Exchange Commission is now considering a proposed rule that would require corporations to disclose political expenditures.

Corporations also should bear in mind that interest groups are actively scrutinizing corporate activities by whatever means possible. This includes examining the political activities of trade associations to which corporations belong and making assumptions about the role of its members. Some are using this information to lead boycotts and other activities against corporations that they believe are not acting in the best interest of shareholders. Certainly the best defense against such activities is to have well developed policies in place.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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