[EL] Business Week story about DreamWorks marketing team assisting Messina (Pres. Obama's campaign manager)

[Joe La Rue]

Rick clarified the question, and it is exactly what I suggested it is. 11
CFR 114.9 describes when corporate facilities may be used for volunteer
campaign activity by corporate employees, but it also says that the safe
harbor is violated if the employees perform their "volunteer" services to a
candidate or campaign because they were "under coercion". 11 CFR
114.9(a)(2)(ii)(C). So the question is, were the DreamWorks employees told
by their employer to meet with Obama's campaign officials? If so, I think
that would be an illegal contribution. (By the way, I'm not saying that's
what happened here -- I don't think you can really tell from the article
what, exactly, occurred).

Rick, please correct me if I'm wrong, but you would agree that, if a
corporate employer told corporate employees to provide free services to a
candidate, that would be an illegal in-kind contribution, would you not?


Joe
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*Joseph E. La Rue*
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On Thu, Jun 14, 2012 at 11:59 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  From the FEC's brochure on volunteer activity:
> http://www.fec.gov/pages/brochures/volact.shtml#corporate
>
> *I work in a corporate office.  Can I conduct campaign-related volunteer
> work while at the office?*
>
> In general, if an individual provides services to a campaign during paid
> working hours, the employer is making a contribution.  11 CFR 100.54<http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr100.54.htm>.
> However, if you are an employee, stockholder or member of a corporation or
> labor organization you may use the organization’s facilities during paid
> working hours.  For example, an employee could use the office phone to make
> calls pertaining to political volunteer work, but the activity must not
> interfere with the employee’s work or the organization’s normal activity.
>
> In order for the activity not to be counted as a contribution, the
> Commission suggests limiting the activity to "incidental use" of the
> corporate facilities.  Incidental use is considered to be one hour a week
> or four hours a month.  11 CFR 114.9(a)(1) and (b)(1)<http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr114.9.htm>.
> If the activity exceeds incidental use or the individual uses the
> organization’s equipment to produce campaign materials, the individual must
> reimburse the organization within a commercially reasonable time.  The
> reimbursement is considered a contribution from the individual to the
> political committee and must be reported.  11 CFR 114.9(a)(2), (b)(2) and
> (c) <http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr114.9.htm>.
>
>
>
> *Can I conduct volunteer Internet activity from my corporate office?*
>
> Yes, an individual can conduct volunteer Internet activity at work as long
> as the individual complies with the employer’s rules for personal use of
> computers and Internet access.  This kind of activity can include anything
> from forwarding political emails to signing up to work at a candidate
> fundraiser.  The individual must complete the normal amount of work for
> which the individual is paid and the activity must not increase the
> overhead or operating costs of the organization.  In addition, the Internet
> activity cannot be coerced or conditioned upon being used for particular
> candidates. 11 CFR 100.94<http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr100.94.htm>,
> 114.9(a)(2)(ii) and (b)(2)(ii)<http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr114.9.htm>
> .
>
> On 6/14/2012 10:44 AM, Scarberry, Mark wrote:
>
>  Joe,****
>
> ** **
>
> On your first point, all I can say is “duh.” Of course Citizens United
> didn’t affect contribution rules; I try to make that point whenever I can,
> so  I don’t know how I could have made that mistake!****
>
> ** **
>
> For the rest of it, thanks for confirming what I thought was the case,
> that if the marketing team provided services at the direction of their
> corporate boss, then that would be considered a corporate contribution.***
> *
>
> ** **
>
> Thanks!****
>
> ** **
>
> Mark****
>
> ** **
>
> Mark S. Scarberry****
>
> Professor of Law****
>
> Pepperdine Univ. School of Law****
>
> ** **
>
> ** **
>
> ** **
>
> *From:* Joe La Rue [mailto:joseph.e.larue at gmail.com<joseph.e.larue at gmail.com>]
>
> *Sent:* Thursday, June 14, 2012 10:33 AM
> *To:* Scarberry, Mark
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] Business Week story about DreamWorks marketing team
> assisting Messina (Pres. Obama's campaign manager)****
>
> ** **
>
> Mark,****
>
>  ****
>
> Even *post Citizens United*, corporations are prohibited from making
> contributions to candidates, whether direct or in-kind. *Citizens *did
> nothing to change that. A corporation may, however, offer its services to a
> candidate so long as the candidate pays the fair market value for the
> services. Employees and officers of corporations are free to make
> contributions *up to the contribution limits*, of course. But under
> current federal law the corporation itself may not make contributions.****
>
>  ****
>
> So this article really raises only four questions. First, did Spielberg
> offer advice in his private capacity or as an extension of DreamWorks? (I
> think it would be hard to argue that he's an extension of a corporation;
> therefore, I think his advice has to be considered private). Second, does
> advice from one person to another, offered in a private conversation, count
> as a contribution, such that a monetary value must be attached to it to
> determine whether one has given 'too much advice' and violated the
> applicable contribution limit? (I don't know the answer to this, not having
> researched it; but, I find it difficult to conceive that private advice
> would be counted as a contribution). Third, did the DreamWorks employees
> offer advice as private individuals, or was it offered within the scope of
> their employment? This is, I think, the key question: for, if they acted
> within the scope of their DreamWork employment because a DreamWork
> executive told them to do so, then this seems to be an illegal in-kind
> contribution. ****
>
>  ****
>
> Finally, here's another key question: why is it Democrats are so worried
> that corporate money is going to go to SuperPACs supporting Romney? Obama
> did quite well with donations from corporate executives in 2008. Might it
> be because Democrats realize that Obama's policies have been bad for
> business? And, if Obama's policies are bad for business, aren't they also,
> by extension, likely bad for job creation? ****
>
>  ****
>
>  ****
>
> Joe
> ___________________
> *Joseph E. La Rue*****
>
> cell: 480.272.2715
> email: joseph.e.larue at gmail.com****
>
>
>
> CONFIDENTIALITY NOTICE:  This e-mail message, including any attachments,
> is for the sole use of the intended recipient(s) and may contain
> confidential and privileged information or otherwise be protected by law.
> Any unauthorized review, use, disclosure or distribution is prohibited. If
> you are not the intended recipient, please contact the sender by reply
> e-mail and destroy all copies of the original message. ****
>
>
>
> ****
>
> On Thu, Jun 14, 2012 at 10:14 AM, Scarberry, Mark <
> Mark.Scarberry at pepperdine.edu> wrote:****
>
> From Business Week (
> http://www.businessweek.com/printer/articles/30696-obamas-ceo-jim-messina-has-a-president-to-sell
> ):****
>
>  ****
>
> “At DreamWorks Studios, Steven Spielberg spent three hours explaining how
> to capture an audience’s attention and offered a number of ideas that will
> be rolled out before Election Day. An early example of Spielberg’s
> influence is RomneyEconomics.com, a website designed by the Obama team to
> tell the story—a horror story, by their reckoning—of Mitt Romney’s career
> at Bain Capital. Afterward, Spielberg insisted that Messina sit down with
> the DreamWorks marketing team. Hollywood movie studios are expert, as
> presidential campaigns also must be, at spending huge sums over a few weeks
> to reach and motivate millions of Americans.”****
>
>  ****
>
> Pre-Citizens United, would free consulting from a corporation’s marketing
> team, at the CEO’s direction, be an illegal corporate contribution? I’m not
> that familiar with rules about in-kind contributions. Spielberg as an
> individual surely had the right to provide free advice to Messina, without
> it being counted against contribution limits, right? I suppose the members
> of the DreamWorks marketing team might have volunteered as individuals,
> rather than as a corporation’s employees, to provide these consulting
> services, but the story suggests that they did so at Spielberg’s direction.
> ****
>
>  ****
>
> Mark S. Scarberry****
>
> Professor of Law****
>
> Pepperdine Univ. School of Law****
>
>  ****
>
>  ****
>
>
> _______________________________________________
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> Law-election at department-lists.uci.edu
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>
> ** **
>
>
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>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
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