It’s PAC Season: Time To Put The Firewall Up, Attorneys Say

The full legal implications of campaign-Super PAC coordination will be felt this week when a former Republican consultant is sentenced in a federal courtroom in northern Virginia.

Even before Tyler Harber’s sentenced in the first criminal prosecution of illegal coordination, the consulting industry has reacted. Firms doing PAC and campaign work increasingly are installing office firewalls to stop the spread of proprietary information between assigned employees.

Moreover, campaign finance lawyers say their phones have been ringing with questions about what working for a candidate and supportive Super PAC can mean in this murky regulatory environment. While Harber’s case was open and shut (albeit almost three years after the cycle ended), there are plenty of grey areas where by-the-book consulting firms can run into legal trouble.

In fact, digital firms could be the most vulnerable in the industry to coordination charges, said Dan Backer, a D.C.-based GOP campaign finance attorney. “They’re more likely to have multiple clients with brokerage activity.

“If you’re renting email lists, if you’re placing Facebook ads, if you’re composing tweets, there is potentially coordinating activity there,” said Backer.

One thing counting in the favor of digital consultants is that they tend to be younger and more open to change than the average industry practitioner, said Backer. “Digital firms are a lot more ready to go to a lawyer and say, ‘Make sure I’m kosher.’ They don’t want to take a chance.”

Get the firewalls up before working on expanding the clients, advised Neil Reiff, a campaign finance attorney at Sandler, Reiff, Lamb, Rosenstein & Birkenstock, P.C. “The big thing is having enough personnel to properly service both sides of the firewall. There’s no mobility between the independent and coordinated sides.”

Before going through the effort and time consuming expense of structuring a firewall, though, firms should take stock of their client list and what business they’re pitching, said Reiff. “Just because you create a firewall doesn’t mean the business is necessarily there.”

Keeping the firm’s client list fresh in mind also helps consultants avoid relationship-based conflicts, said Cleta Mitchell, a campaign finance attorney at Foley & Lardner, LLP.

“People get used to dealing with the same pollster, media buyer, tech person — you really do have to stop and think,” said Mitchell. “These are complicated rules and you have to work to figure out what kind of business you want to do and who wants to hire you to do what, and how you create the necessary structures to be compliant with the law.”

Harber’s sentencing June 12 will highlight the consequences of breaking federal campaign coordination laws. While consultants ponder the implications, the advice from attorneys is clear: Call them.  

“You absolutely have to have a lawyer if you’re going to engage in this level of political speech,” said Backer. “If someone who’s not a lawyer says, ‘I know the rules,’ run away because they don’t know what the hell they’re talking about.”