Love in the Political Air: Analyzing Political Law Concerns Involving Romantic Relationships

Episode Summary

Valentine’s Day 2026 may now be a sweet memory, but love is always in the air when it comes to political law issues involving romantic relationships. Hosts Charlie Ricciardelli and Tyler Rosen outline the ethics considerations involving personal relationships, including for spouses, significant others and friends. Tune in as they break down how to ensure these relationships do not trigger ethics violations, gift laws and pay-to-play violations, as well as review considerations for employee spouses who are considering running for elected office.

Voiceover (00:00):
From Skadden, you are listening to the Lobby Bar, a political law podcast where we strive to make political law accessible and host Charlie Ricciardelli and Tyler Rosen deliver practical insights on the compliance challenges and regulatory developments that matter to legal, compliance, and government affairs professionals across all industries.

Charlie Ricciardelli (00:22):
Hello, I’m Charlie Ricciardelli.

Tyler Rosen (00:24):
And I’m Tyler Rosen.

Charlie Ricciardelli (00:25):
We’re partners in the political Law Compliance Investigations group at Skadden in Washington. D.C. Welcome to another episode of the Lobby Bar. We have a potentially fun device here today to explore that. I’ll give credit where credit is due. Tyler came up with this construct given we’ve now entered February and hopefully this will drop right around Valentine’s Day. The theory of this podcast, or the theme, I should say, is love in political law and all the issues that you may not be thinking about that arise in political law when dealing with relationships, whether they be personal friendships, spousal relationships as they relate to gifts, and pay-to-play and political contributions.

Tyler Rosen (01:04):
Makes sense since it’s, I’d say one of the top five most romantic legal subjects is political law.

Charlie Ricciardelli (01:11):
It is. This is a fair point. So, we’re going to just as a run of show, we’re going to start with a tour through the personal friendship exemptions under gift laws. Well, what does it mean, for example, if you’re friends or if you’re dating a public official or if a public official is dating a lobbyist or somebody with interest before them, how do you handle dinner? How do you handle gifts? And then we’ll move to some pay-to-play considerations. We’ll talk about how companies are dealing with spousal political contributions. If we have time, we may get briefly into what happens when your spouse may decide to run for office. Does that throw a curveball into any of our clients’ compliance plans? With that, I’ll turn it over to Tyler to fire the first arrow from Cupid’s quiver. Yeah, I know that’s a high bar.

Tyler Rosen (01:58):
That’s how we’re doing it today. So, when we think about romantic milestones in a relationship, you may have the first date, the first kiss, and for a congressional staffer or member and their significant others, like lobbyists, you have the first Ethics Committee approval of your relationship. And it’s something that we joke about. It’s actually kind of a staple in our trainings where we’re talking about the House and Senate gift rules – about the idea that you may need House or Senate Ethics to actually approve your relationship and specifically grant a waiver to the House or Senate gift rules when it comes to providing a gift to your significant other who is subject to the gift rules, whether they’re a Member or Senator or a staffer. And actually it’s interesting, and both Ethics Committees have formal processes to vet relationships. They have a questionnaire. House Ethics has a form here that I’m going to be looking at, if you’re doing this on-

Charlie Ricciardelli (02:58):
Audiovisual support. I like it.

Tyler Rosen (03:00):
Yeah, if you’re looking at this on YouTube, you just briefly saw a blurry image of House Ethics form, but I think it’s worth looking at both because it’s fun and Valentine’s themed, but it also speaks a little bit more to how we think about personal friendship exemptions. It’s not that different for other types of relationships as Charlie was alluding to. So, the idea here, and maybe it’s worthwhile to step back for a second and talk about what the House and Senate gift rules are. Essentially, a lobbyist or an employer of a lobbyist is subject to – there’s a ban on acceptance of gifts from those persons.

(03:33):
And lobbyist filers have to certify that they’re in compliance with those rules when they file their LD-203, their federal semi-annual contributions report. There is a personal friendship exception under these rules. Essentially, if a gift is provided on the basis of personal friendship and not because of somebody’s official duties, then it is exempt from those limits. That being said, there’s a requirement that you actually obtain or that the member/senator/staffer obtains approval from the Ethics Committee if the gift is going to exceed $250.

(04:05):
And so, there’s a form to go through this and the types of questions they ask, and I think just worth getting into, “Please describe your relationship with a donor including how you met.” So, this is match.com or whatever people the kids are using these days, maybe on there or it might be the Capital Grille or what have you. “Have you previously exchanged gifts with the donor? If yes, give example.” So the idea is, is there a pattern of reciprocity? Is there somebody that you give gifts to and it’s not just a one-sided flow of gifts? It asks if the donor is registered as a federal lobbyist or as a foreign agent under the Foreign Agent Registration Act, which is going to be important to their analysis.

(04:42):
“Will the donor pay for the gift personally? If no, please explain.” This is like a trap to walk into. If it’s your significant other, then you should be paying for the gift. And that’s true. It’s sort of life advice here from me, not just limited to these Ethics rules, but it’s really relevant in this friendship exemption context in lots of different circumstances. So, if you have a friend that you interact with on work-related things, if your company’s paying for it, you don’t get to use a personal friendship exception. If you’re paying for it, then maybe you do. That’s what this question is getting at. It says, “Will the donor be reimbursed or receive a tax deduction for the gift?” So, if you’re chalking up your trip with your senator girlfriend, then that can’t be deducted as a business expense. So that’s what that’s getting at. Similarly, you can’t be reimbursed by your employer. It’s sort of the same question as above.

(05:35):
And then, “Has the gift been offered to other members, officers, employees, et cetera?” A little bit weird in that maybe it’s like telling on yourself in terms of the relationship and whether it’s exclusive. And then, “Does the donor have interests or business before Congress?” And that’s an interesting one. I think what house ethics does with that may depend. Theoretically it shouldn’t matter, but I think probably gets thrown into the mix as they evaluate: is this really a bona fide relationship or is it a way to try to curry favor with somebody in this government office?

Charlie Ricciardelli (06:06):
Yeah, I think at a minimum it’s useful information for the ethics staff when they’re evaluating this, if for no other reason than if you don’t have interest before them. It is probably a much easier call for them to make. But I think the idea is, as Tyler’s saying, is that there’s a spectrum here, and you don’t necessarily have to check every single one of these boxes, but it’s a totality of the circumstances test. And obviously given our Valentine’s Day theme, we’re sort of half-jokingly zeroing in on the dating context, but this is a bigger issue. It’s bigger, obviously, in that it doesn’t only apply to romantic relationships, dating, et cetera, but that friendship exemption can expand beyond that and it can also, we see these friendship exemptions not just under the House and Senate gift rules, we see them relatively commonly at the state and local level as well.

(06:56):
And for the number of times you actually get to use this exemption, I will say, you get the question, “Can I use this exemption?” an awful lot more. So, it’s probably important to think about this, as Tyler said, when somebody brings these questions to you because it’s really not the case that it’s as useful as many employees may think that it is or as many lobbyists think that it is. Just because you’ve been lobbying somebody or doing business with them for 10 or 15 years, you’re not their friend. I mean, you might be, but that’s not necessarily enough.

(07:30):
As Tyler said, I think there are certain things that are just table stakes that have to be the case. You can’t be reimbursing it, you can’t take a tax deduction. There can’t be a business purpose. It really truly has to be personal. And then you get into some more of the sliding scale, totality of the circumstances test. Have you ever seen your friend’s wallet after dinner? Do they ever pick up the tab for you or is it constantly going in one direction? We do get that question quite a bit.

Tyler Rosen (07:56):
Absolutely, we do. So I think we’re going to shake things up a little bit and do our sort of “so what?” as we go, I think the “so what?” on this one is when we’re getting requests from employees to engage in entertainment and personal entertainment, we really do have to kind of kick the tires on their friendship. We don’t necessarily need this whole form that House Ethics does, but the questions that they’re asking are the types of questions that we want to be thinking about when evaluating whether somebody really can use a personal friendship exception or do we need to comply with whatever the state or local or federal gift or limit is that would otherwise apply?

Charlie Ricciardelli (08:31):
Agreed. And that actually, I think, allows us to make a nice segue from one really intrusive inquiry to another, right? So, first we’re telling you’ve got to really inspect somebody’s personal friendship or relationship or lack thereof. Let’s move to pay-to-play contributions and the fact that, sadly, we have to, in many circumstances, inquire as to an employee’s spouse’s personal activity.

(08:56):
Just to zoom out and set the scene, when we’re talking about these pay-to-play rules, we’re talking about strict liability pay-to-play rules in this context. Federal, state and local rules that can prohibit a company from either accepting compensation for certain government contracts or entering into government contracts altogether as a result of political contributions made by the company, its PAC and sometimes its affiliates, but also certain of its personnel officers, directors, other employees and, the fun part, their family members in certain cases, including most typically spouses, but it can go beyond that.

(09:30):
So, we need to spend a little bit of time talking about how to handle this, and this comes in a couple of different flavors. We have the federal pay-to-play rules, which don’t expressly or directly cover contributions by spouses. However, they do cover contributions made indirectly by a covered associate to a covered official. So, query what’s the risk presented by a covered associate’s spouse, for example, making a political contribution if that person’s covered under the SEC rule. And then you have the state and local pay-to-play rules, which do actually directly cover spousal contributions. Tyler, do you want to talk a little bit about the federal pay-to-play piece and I can talk about state and local?

Tyler Rosen (10:08):
Sure. I mean, as Charlie said, the rules don’t directly cover contributions by a spouse, the federal rules, but they could very well cover a contribution by a spouse if it was a way for a covered associate or the MSRB rule and MFP or MAP doing indirectly what they couldn’t do directly. And that presents a real challenge, frankly, for compliance departments as they deal with these because there’s certainly different ways you could approach it. One, and there are certainly firms out there that do this that say, look, we’re just going to assume that the spouses are closely connected in everything that they do, and we are not going to get into looking at what one spouse’s motivation is versus the other, and we’re just going to treat them the same and say that they are one unit and they can give a combined 150 or 350 or 250 or zero depending on what the rule is and leave it at that.

(11:00):
Others will take a sort of default presumption that it’s connected and therefore spouses will be subject to the same rules unless they can demonstrate or build a factual record of this spouse’s independent reason for giving. Look, that’s intrusive. It’s bad enough to ask your employees why they want to make political contributions, but it’s even harder when you’re asking somebody’s spouse for that information. And then the other approach would be sort of a slight variant on that where they basically will do – an investigation deeply overstates what’s going on – but some level of diligence on the spouse and try to build a case that it is independent.

Charlie Ricciardelli (11:38):
Yeah, it’s sort of intrusive either way, just intrusive in a different way. Option one where you’re saying, “Listen, we’re just going to treat you, spouse, the same way as the covered associate” is intrusive, because we’re just not going to let you make many political contributions at the state and local level. If you are going to kick the tires either proactively or otherwise, it’s intrusive because now you’re going to ask, “Okay, well who got the solicitation?” Because the factors that you’re going to have to look at is, where did this come from? Where did the solicitation come from? Is there a relationship with the candidate? Who has the relationship with the candidate? Did this first come into the spouse independently? Did it come to both of you? Getting into that factual record to try to substantiate that this is truly the spouse’s independent activity does take a little bit of work.

(12:21):
By the way, once you get there, which you may, some other things that you really need to think about or make sure that this spouse is using money over which he or she has access and control. It doesn’t have to be exclusive control, but if it’s the husband of your employee, make sure that it’s an account that he has access to and can spend money out of independently and really make sure that if he’s contributing by check that he’s the only one who signs it. There’s actually guidance out there saying that whoever signs that check is attributed the contribution. I would also recommend crossing out the employee, the covered associate’s name, on the check stock because there’s also a reporting component to this. Some campaign staffer just gets a joint checking account check, they may report the contributions coming from both the covered associate and the spouse regardless of who signs it. So, you are going to need to take steps like that. I will say there is another option.

Tyler Rosen (13:15):
Yeah, there is. Yeah. I mean, and I was going to add that too. You do see some that will basically, they’ll put into their policy that you can’t do indirectly what you can’t do directly and they will require that spousal contributions are pre-cleared in the jurisdictions that Charlie’s about to talk about, but that otherwise you just tell the employees, Hey, you can’t use your spouse to do indirectly what you can’t do directly. There’s obviously risk in that, because what one employee thinks of as doing indirectly what you can’t do directly may be different from what the SEC thinks. That is also an approach that is out there and I don’t know if that’s what you were going to say, Charlie.

Charlie Ricciardelli (13:50):
No, it is. And listen, I think that all of these can be reasonable approaches. I think some of the decision points turn on how large the covered population is, what type of adviser or broker-dealer are you? What’s the internal culture? What’s the appetite for different types of intrusiveness as we talked about, and then training? I do think that if you are going to leave it up to the employee, you’re going to bake it into your policy that there needs to be a little bit of education about what we’re talking about when we talk about independent and not using a family member or others as a conduit.

(14:23):
So, it’s a little bit of a muddier picture when it comes to these federal rules for those reasons, but it gives you some leeway. Where you don’t really have that same leeway is under certain state and local pay-to-play rules, which simply expressly cover certain family members, including spouses. You’re really left with not much of a choice but to include spouses and require them to preclear or require the employee to pre-clear the spousal contribution. As I mentioned, some of these pay-to-play rules go beyond spouses. They talk about spouses, dependent children. Some go even further than that. So you need to think about is there may be a reasonable approach to handling some jurisdictions with really expansive family member definitions.

Tyler Rosen (15:07):
Or you just make your employees tell their in-laws to come pre-clear their political contributions, which some local jurisdictions out there do technically require.

Charlie Ricciardelli (15:15):
But one way or another, again, you need to address these because you may well be hit with a certification or requirement to certify that you’re in compliance with this. And so your policy is going to need to cover family members, spouses, at least in those jurisdictions where they’re directly covered. So what this looks like in practice will depend in part on what your decision point is under the federal rules. If you decide, “Hey, I’m going to treat spouses the same as their covered associate, employee, spouse,” and maybe you’re just going to pre-clear whichever family members you decide to pre-clear in all jurisdictions. If not, if you’re going to take a sort of more fine-tuned approach, you may say, “Okay, covered associate, you have to cover, you have to pre-clear in every state and every locality.” And if family members are going to contribute, here’s the list of jurisdictions where they need to pre-clear contributions.

(16:09):
Our recommendation typically is to make that sort of a dynamic, live list that lives somewhere on an intranet page. You don’t want to bake that into your code because when a new law comes online or falls off, although that’s relatively uncommon, you don’t want to have to update your policy. So the idea is a lot of our clients will just have a link saying, click here to this intranet site, and you have a list of those jurisdictions where family members do need to pre-clear. None of this is fun, just to say it. Breaking this news to employees, this is part of the process of rolling out a policy like this or training new employees, new hires on it.

(16:46):
It can be dicey, right? Getting people comfortable with the fact that not only are we asking about your political contributions, but we’re also going to ask about your spouses. We’ve had a number of fun conversations explaining that because, wisely I think a lot of our clients will bring us in to be the bad guys to sort of break the news. But, I do think the key here in rolling this out or explaining it to anybody who’s unfamiliar with it is really just to demonstrate or explain to them what the potential downsides are, right? Number one, hey, we could lose business as a result of this, millions of dollars in potential fees, government contracts. For a lot of our clients, it’s really an existential issue to be able to do this type of business. So, that’s first. And second, I think you want to give as much comfort as possible that the only thing you’re doing with this information is evaluating it under these pay-to-play laws, that there’s no political judgment involved whatsoever, that they’re only going to be denied if it could possibly interfere with the company’s ability to do business.

Tyler Rosen (17:42):
It can be helpful sometimes, although most of these rules are just the consequences just attached to the company. I always like to have Connecticut in my back pocket, where there actually is personal liability for the contributor, including the spouse if they make a contribution during a covered period. So, that can sometimes soften the blow or redirect the anger about this, but we definitely get sent out as the messenger in a shoot-the-messenger context on this one a lot.

Charlie Ricciardelli (18:07):
I mean, one other thing that’s part of that buy-in process is you explain, “hey, we’re only doing this because we need to be able to continue to have government contracts. It’s a big part of our business.” Number two, that’s the only filter and it’s important because we could lose business. And as part of that, I think you also want to mention that in a lot of jurisdictions, if not most, there’s no cure provision. These are strict liability laws that once that contribution goes out the door, you may be stuck with it. Now, that presents kind of an interesting hypothetical that Tyler and I have been batting around. I don’t know if you want to tackle the War of the Roses scenario.

Tyler Rosen (18:43):
Sure, yeah. And, so just as Charlie was saying, this is strict liability. A spouse is a defined term under most laws. It’s somebody that you’re married to, and marriages can go awry and you can have an upset spouse and a War of the Roses-type scenario where the spouses are in the process of divorcing and not treating each other well, there’s no automatic exception for that in these rules. There’s this potential for a scenario where an angry spouse torches the other spouse’s government contracts by making political contributions. Now, we haven’t seen that. It’s something that I’ve sort of mused about.

Charlie Ricciardelli (19:18):
I feel like that’s an understatement. Not only have we not seen it, we’re sort of “out there.”

Tyler Rosen (19:26):
We’re a little bit “out there.” And it’d be interesting. I mean, it would be a very interesting thing to see play out because you’d have to talk to the government and say, “Look, this is obviously not trying to influence business. This is totally remote from what the purpose of these pay-to-play rules actually is. Please have mercy.”

Charlie Ricciardelli (19:43):
Yeah, I think you’d have a pretty good, equitable case.

Tyler Rosen (19:45):
I do.

Charlie Ricciardelli (19:47):
I mean, happily under the federal rules, it would be very hard in that situation for the SEC or FINRA to argue that it was an indirect.

Tyler Rosen (19:55):
Yeah, that one, you’re probably good.

Charlie Ricciardelli (19:56):
Quite the opposite, which is good, because otherwise you might be looking at a waiver. Under the state and local rules, I think you might have a little bit more leeway at least to go to the contracting agency that wants to do business with you to sort of help you plead your case to the regulator if there’s no cure provision. Let’s chalk that up to sort of “interesting, but hopefully remains theoretical,” which I expect to be the case.

Tyler Rosen (20:21):
I think that’s mostly what we’re going for on this podcast.

Charlie Ricciardelli (20:23):
Well, yeah, that’s fair. That’s fair. I think we have a little bit of time left. We will do it quickly. A slight derivation of this issue and another spousal consideration is what happens, not so much if your spouse is considering making political contributions, but what if an employee’s spouse wants to run for office? What are the things that we need to think about there, Tyler?

Tyler Rosen (20:48):
Well, there’s a fair number of things to think about, and the first, as you said, this is sort of an outgrowth of pay-to-play rules. The first thing you have to start with is the pay-to-play rules. And it’s a two-part analysis. One is what are the rules for the spouse? If they’re going to be running for office and they’re covered under some pay-to-play rules, there’s not necessarily an exception for a contribution to their own campaign under some state laws. They may be engaging in other political activity, like fundraising for a party committee, that could be caught up in these rules. So, you have to be mindful of that. You also have to be mindful of the pay-to-play rules that apply to the employee, the one who’s not running for office, the spouse who’s not running for office, because it’s relatively easy for a spouse to …

(21:29):
Or let me rephrase that. It’s relatively hard to wall a spouse off completely from their spouse’s campaign. If they’re going to appear at campaign events, get up there on stage and do something. Well, depending on the nature of the event, is that a fundraiser? Are they soliciting or coordinating contributions for the campaign? And, under the federal pay-to-play roles in some state rules, that would be a potential issue. We also need to think about making sure that company resources aren’t used as part of the effort for the campaign.

Charlie Ricciardelli (22:02):
Yeah, I mean, this falls into the bucket I think of doable, but with guardrails or a checklist, right? You’ve got to check that pay-to-play box first and, if there’s a restriction on the spouse giving, you’ve got to implement that. I mean, the point you raised about the solicitation prong is interesting, Tyler, because I think some folks lose sight of the fact that these pay-to-play rules, whether they be the federal or the state and local, cover soliciting contributions as well. And it’s the most natural thing in the world. Obviously, for a spouse to want to help their spouse in their run for office, they might intuitively say, “Well, I’m not making a contribution. I’m just asking my next-door neighbor to make a contribution.” Well, right there, if that person’s covered, there’s no exception and it could be a violation of the rules as well. So, again, doable, but you need to get this sort of information on the front end, vet it and make sure that you’re tailoring your guardrails.

(22:56):
The other thing to think about is if somebody presents you with this and is pre-clearing this with you, we’re focusing on the pay-to-play and the campaign finance side, we want to make sure there are no potential conflicts of interest lurking when and if the spouse does win and then hold that office. There are at least some conflict of interest rules out there that cover family members of employees. So, it’s possible, for example, if you have a senior employee’s spouse running for city council, is that going to interfere with the company’s ability to do business with that city or certain people to go before the city council? Certainly that employee.

(23:34):
So another one of the things that you want to add to that vetting checklist in this context as well. So, it’s entirely possible that we’ve accomplished, or maybe this is an easy accomplishment, we’ve kind of ruined Valentine’s Day by raising all the thorny potential political law issues that romantic and other relationships can raise. But I don’t know, Tyler, if you have anything else to add or if we can wrap up?

Tyler Rosen (23:57):
No, no. Well, do we want to do a “so what?” on our spousal campaign thing? So to me, so what I think you said, a lot of it is vetting it in advance, running down the issues, but then I think you’re going to want some documentation around it once you figure out what the rules of the road are going to be, making sure that the folks involved know what those rules are and that there’s a structure in place to make sure that they’re following them, whether that’s a memorandum of understanding or some other guidance document that they agree to comply with, it’s usually a good idea.

Charlie Ricciardelli (24:30):
Agreed. Okay. Well, with that, I think we’ll leave you with one final bit of advice, at least for those of you in the Northeast and mid-Atlantic. Ice picks and snow shovels are the new chocolate and roses this year. So, good luck to everybody with the weather shenanigans that have been ongoing. But, thanks again for joining The Lobby Bar. If you like what you’re hearing, don’t forget to like and subscribe and tell your friends, but perhaps not your scorned former relations in case they-

Tyler Rosen (24:57):
Don’t. We had a real ethical quandary prepping for this, whether we wanted to put that out there in the world. So, don’t tell your spouses if it’s not going great.

Charlie Ricciardelli (25:06):
Thanks very much for joining.

Voiceover (25:08):
Thank you for joining us for today’s episode of the Lobby Bar, a political law podcast. If you like what you’re hearing, be sure to subscribe in your favorite podcast app so you don’t miss any future conversations. Additional information about Skadden can be found at Skadden.com.