Pay to Play Law Blog : Pay to Play Lawyer & Attorney : Bribery, Campaign Contributions

 Just a few weeks ago, we posted an entry which took note of a recently-issued Securities and Exchange Commission (SEC) “Risk Alert” concerning industry compliance with with MSRB Rule G-37. That entry advised the regulated community to treat the Alert as a signal from the Commission that it was dissatisfied with the industry’s continued failures to comply with federal pay-to-play laws and closed with the following warning:

The wise among us would do well to heed this warning to straighten up and get formal compliance protocols in place along the lines of those singled out by the Commission for praise. Punishment is coming and this is our “don’t say we didn’t warn you” moment.

(Alas, it would now appear that I have accomplished the highly complex, and dangerous, “Narcissism Triple-Double Combination” by quoting myself twice, along with a self-reference to my own blog entry using the plural “we” in the context of setting up an “See, I was right” closing. Do NOT try this at home. It is very difficult and reveals numerous, significant flaws of character.)

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Ever heard a parent say to a child “and this time I mean it”?

Last Friday, the Securities and Exchange Commission’s Office of Compliance Inspections and Examinations let the municipal securities underwriting community know that it has had enough with not being listened to and is “getting ready to pull this car over right now if you don’t straighten up in the back seat”.

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For more than two years, this blog has been covering the Securities and Exchange Commission’s foray into the world of pay-to-play regulation and the Commission’s attempt to implement federal pay-to-play restrictions for registered investment advisers. The latest chapter in this long and winding saga occurred earlier this month, when the SEC formally extended the compliance date for the third-party solicitation ban imposed by the recently-crafted amendments to Rule 206(4)-5 under the Investment Advisers Act of 1940. As a result, the formal compliance deadline, which had been set for June 13, 2012, has now been reset to a indeterminate date nine months following the compliance date set forth in the Commission’s final rules for the registration of municipal advisors, which have been proposed but not yet adopted. To put it simply – the SEC has chosen to “kick the can down the road” for a second time on pay-to-play solicitation compliance.  

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Last February, we posted an entry flagging potential concerns arising from the SEC’s new pay-to-play rules for investment advisors as applied to presidential candidates. Admittedly, at the time we were talking about Governors Haley Barbour and Mitch Daniels, but the same holds true now for Texas Governor Rick Perry.

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This Wednesday, the Securities and Exchange Committee (SEC) voted to propose rules that would impose certain business conduct standards on banks and other firms that deal in complex financial instruments known as “swaps.”  For the uninitiated, swaps are derivatives in which parties exchange the benefits of one financial instrument for another in order to trade the cash flow streams of the particular assets.  Swaps are typically used either to insure against market risks such as interest rate fluctuations or to make speculative investments based upon expected changes in the prices of the financial benchmarks underlying the instruments. 

This effort to regulate conduct in the derivative swap market by the SEC emerges out of the Dodd-Frank Act's comprehensive framework for monitoring over-the-counter swaps and the activities of “security-based swap dealers” and “major security-based swap participants” that engage in security-based swap transactions with counterparties (including “special entities” such as federal agencies, states and political subdivisions, employee benefit plans, governmental plans, and endowments).  The rules the SEC advanced this week would require swap dealers to disclose to their buyers the risks associated with transactions, the potential conflicts of interests involved, and the day-to-day values of their swaps, which would aid purchasers in assessing the overall worth of specific deals.  The rules would also mandate that swap dealers doing business with special entities ensure that their counterparts use independent financial advisers to assist with transactions.  Additionally, dealers would be prohibited from participating in a wide range of “pay to play” practices.

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Much has been written and said about the SEC’s new pay-to-play rules, which will go into effect on March 14.

Recent commentary has generally focused on the lack of certainty to the business community on how these rules will be applied, as well as the administrative difficulties that will likely arise as the rule first goes into effect. RealClearPolitics has an interesting new take on the regulations, which focuses on how this could impact the 2012 Republican Presidential Primary.

More on that later. As a reminder, the SEC’s new rule has three key elements:

1) It prohibits investment advisors from providing advisory services for compensation—either directly or through a pooled investment vehicle—for two years, if the advisor or certain of its executives or employees have made prohibited political contributions to an elected official in a position to influence the selection of the advisor;

2) It prohibits advisory firms and certain executives and employees from soliciting or coordinating campaign contributions from others (a practice referred to as “bundling”) for any elected official in a position to influence the selection of the adviser. It also prohibits solicitation and coordination of payments to political parties in the state or locality where the adviser is seeking business; and

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On March 14, the SEC's pay-to-play rule will come into effect and there is growing concern that the rule's exemption for accidental violations will result in an administrative hailstorm. The rule allows an advisor to apply to the SEC for an order exempting it from application of the two-year ban. Under such provision, the SEC can exempt advisers from the time out requirement where the adviser discovers triggering contributions after they have been made, and when imposition of the prohibition is unnecessary to achieve the rule's intended purpose. An exemption would be based on the facts and circumstances of each applicant, including the SEC's consideration of factors such as whether the adviser had a compliance program in place.

The SEC estimated that seven advisers would apply for the exemption each year, a number that several attorneys have speculated as too low given the number of investment advisers affected. On the other hand, the SEC utilized FINRA's data on exemption applications to calculate the estimate, and investment advisers have had several months to digest and prepare for the rule. Either way, whether March will come in like a lamb or a lion for the SEC is anyone's guess.

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New York State Attorney General and Governor-Elect Andrew Cuomo has announced additional settlements in his investigation of "pay-to-play" practices and conflicts of interest at public pension funds. Veteran Albany lobbyist Patricia Lynch Associates, Inc. will pay a $500,000 fine and be banned for a period of five years from appearing before the State Comptroller's Office. The State Comptroller is the sole trustee of New York State's approximately $133 billion Common Retirement Fund (CRF).

Cuomo's investigation showed that Lynch, a former top aide of Assembly Speaker Sheldon Silver, arranged contributions to former Comptroller Alan Hevesi's campaign. She also assisted in securing a consulting contract for the daughter of the Comptroller's Chief of Staff and provided thousands of dollars in gifts to the daughter. Lynch met with the Comptroller and with senior staff in his office to discuss proposed investments by her lobbying clients. She and a partner, L.W. Strategies, also received fees from a client for lobbying the New York City Police and Fire pension fund.

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The Municipal Securities Rulemaking Board (“MSRB”) is at it again. MSRB is wasting no time putting rules in place to address pay-to-play practices for the advisory community. MSRB called a special meeting to address this issue, among others, on the heels of the 2010 Dodd-Frank Act, which expanded MSRB’s jurisdiction to include the regulation of municipal advisors, in addition to dealers, which MSRB has regulated since 1975. The MSRB Board of Directors agreed to issue a request for comment on a rule that would restrict municipal advisors from engaging in or soliciting business from municipal entities when an advisor has made certain political contributions to a municipal officer responsible for awarding that business. The rule would mirror the one currently in place for dealers. MSRB officials have said the rule would not be retroactive.

“We are wasting no time in seeking to implement a rule to address ‘pay-to-play’ practices in the municipal market,” said MSRB Chair Michael Bartolotta. “The MSRB already stringently regulates this area of the municipal market with rules restricting pay-to-play by municipal securities dealers, and putting similar rules in place for the advisory community is one of our top priorities.”

The Board also discussed its continued efforts to provide guidance on contributions by political action committees of companies affiliated with dealers. MSRB’s interpretive guidance takes effect on December 12, 2010. In light of such guidance, MSRB has decided not to take further action on an earlier proposal to require dealers to name PACs of their affiliated companies. Stay tuned for updates in this area.

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Public pensions are not for sale. That was the message surrounding Assembly Bill 1743, signed into law by Governor Arnold Schwarzenegger on September 30. As we reported in February  the bill was sponsored by the California Public Employees’ Retirement System (CalPERS), state Controller John Chiang and Treasurer Bill Lockyer, both ex officio members of the pension fund’s Board. Chiang and Lockyer have touted AB 1743 as legislation that would ensure transparency and promote merit based investment decisions.

Aimed at terminating “bounty-based compensation” and unrestricted gift-giving, under the new law, California state pension placement agents must now register as lobbyists and as such comply with California’s Political Reform Act of 1974. In addition, agents are banned from making campaign contributions to elected board members or setting up contingent fee arrangements. Placement agents that do business with CalPERs or the California State Teachers’ Retirement System (CalSTRS) will be required to submit quarterly compensation reports, and their pay cannot be contingent on the outcome of an investment action. Officials at CalPERS and CalSTRS must each send a report on the use of placement agents in connection with investments by August 1, 2012.

Lockyer stated that the bill “embodies a principle that has been forgotten and flouted in California and across the nation: Workers, retirees and taxpayers come before politically-connected middlemen and wealthy Wall Street interests.” Chiang said that the bill provides the transparency needed to protect state retirees and California taxpayers. Only time will tell if their aspirations are realized by the passage of AB 1743.

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Since the SEC passed its pay-to-play rule in June, (reported on here), the feds have clearly been looking for a target to "make an example out of" as a way of showing they are serious about pay-to-play. A sacrificial lamb appears to have been found as SEC spokesman Kevin Callahan has put the public on notice that the SEC will be taking an increased interest in the role placement agents play following pay-to-play scandals in other states. Recently, the SEC opened an "informal inquiry" into the Kentucky Retirement Systems' ("KRS'") use of placement agents as a result of one of KRS's own internal audits. KRS oversees a $12.5 billion fund for state and county retirees.

KRS's audit identified one well-connected placement agent, Glen Sergeon (say it with me: "Baaaaaa"), as having done more work for the fund from 2004 to 2009 than any other agent. While the fund found no evidence of illegal activity, due to the possibility of perceived appearance of preferential treatment, KRS's compliance officer recommended that pension staff be required to publicly disclose all personal connections with placement agents going forward - a step beyond the policy the pension program put in place last year requiring disclosure of placement agent names and fees paid. The KRS Board of Trustees is also speaking with state auditors to conduct an independent review of KRS's use of placement agents.

On September 9, the SEC's Division of Enforcement in New York sent a letter to KRS requesting KRS produce information about payments to placement agents used by the fund, no later than September 22. Specifically, the SEC requested a copy of the internal audit, as well as records held by KRS that contain placement agents' fees. The SEC said that no one is accused of wrongdoing. I'm sure Glen Sergeon begged to differ when KRS Trustee and investment specialist, Christopher Tobe, who supports a ban on placement agents (See also See also Comment Letter of Kentucky Retirement Systems Trustee Chris Tobe Sept. 18, 2009, "Tobe Letter") stated, "I believe the SEC shares my concerns that 12 separate deals of over $600,000 [per placement agent] were struck - five over $1 million - that may imply more than simple commissions. I also believe that the fact the staff and selected trustees concealed the fact we had placement agents for over six years is of concern." KRS's nine-member Board of Trustees is holding a special meeting today to discuss the SEC's letter.

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Since 1994, the Municipal Securities Rulemaking Board (“MSRB”) has sought to eliminate pay-to-play practices in the trillion dollar municipal securities market. As a result, the muni market has adopted and refined some of the toughest rules on political contributions. The rules promulgated by the MSRB have become a model for regulation of pay-to-play, as was shown with the SEC’s reliance on the MSRB rules in connection withits pay to play rule.

The MSRB continues to strengthen its influence over the activities of municipal bond brokers and dealers. Yesterday, the MSRB filed a proposed rule change with the SEC consisting of interpretive guidance in connection with Rule G-37 and the use of political action committees (“PACs”). The MSRB said it is reviewing the pay-to-play rules because recent consolidation in the financial industry has placed bond dealers under the control of banks, bank holding companies and other companies that have PACs.

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In a continued effort to thwart pay-to-play practices and increase transparency of corporate involvement in the political process, the House Financial Services Committee approved the Shareholder Protection Act of 2010, H.R. 4790 by a vote of 35-28 this past Monday. The bill would require annual shareholder authorization before a public company could make certain political expenditures. A corporation would need to include in its bylaws a requirement for majority shareholder approval on political expenditures in excess of $50,000 or any expenditure that would make the total amount spent by the corporation more than $50,000. In addition, the bill would require issuers to include in annual shareholder reports a summary of all political spending that exceed $10,000, and would also would direct the Securities and Exchange Commission to issue rules requiring corporations to disclose any materials for political activities created with or purchased using company funds. Under the bill, officers and directors who authorize political expenditures without shareholder approval could be found liable for breach of fiduciary duty.

The bill was introduced by Rep. Michael Capuano (D., Mass.) who said: “If you buy into a corporation, you should have a right to say what is done with your money.” Three Democrats (Donnelly, IN; Childers, MS; and Minnick, ID) joined the Republicans in unsuccessfully voting against the bill. The committee vote occurred just days after the Senate rejected a narrower measure that would require corporations and unions to reveal the funding sources for political ads, the “DISCLOSE Act.” Both bills were aimed at mitigating the landmark Supreme Court case Citizens United vs. the Federal Election Commission, which lifted restrictions on independent expenditures by corporations. Capuano said his bill passes on to shareholders the new rights given corporations under the Supreme Court’s ruling.

A vote by the full House could not take place until September and there has been speculation that the debate could provide fodder for election-oriented talking points on free speech and corporate interests ahead of November’s mid-term elections.

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On Wednesday, June 29, the Securities and Exchange Commission unanimously approved the final text of a new rule under the Investment Advisers Act of 1940 directed at preventing pay to play practices by investment advisers. In response to 250 comment letters, with divergent views on the issue, the Commission revised certain provisions of the rule it proposed last year but largely kept intact its initial proposal of regulations designed to ensure that investment advisors are prohibited from using campaign contributions to steer municipal investment business. Oddly enough, the Commission received no comment letters from the class of plan beneficiaries that it sought to protect with the proposed rule, although two public interest groups strongly supported the proposed revisions.

The new rule has three key elements:

1) It prohibits investment advisors from providing advisory services for compensation—either directly or through a pooled investment vehicle—for two years, if the advisor or certain of its executives or employees have made a political contribution to an elected official in a position to influence the selection of the advisor;

2) It prohibits advisory firms and certain executives and employees from soliciting or coordinating campaign contributions from others (a practice referred to as “bundling”) for any elected official in a position to influence the selection of the adviser. It also prohibits solicitation and coordination of payments to political parties in the state or locality where the adviser is seeking business; and

3) It prohibits investment advisors from paying third parties, such as placement agents, from soliciting a government client on behalf of the investment adviser, unless that third party is an SEC-registered investment advisor or broker/dealer subject to similar pay to play restrictions.

Finally, the rule contains a catch-all, “don’t let the lawyers find a loophole” provision, which prohibits acts done indirectly, which if done directly, would result in a violation of the rule (such as old favorites like funneling contributions through an investment adviser’s attorneys, spouses or affiliated companies).

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After almost a year (and countless scandals with related enforcement actions later), it appears the SEC will issue its much loved, hated and debated pay-to-play rule. The SEC has announced the subject matter to be discussed at its open meeting on June 30, 2010: “The Commission will consider whether to adopt a new rule and related rule amendments under the Investment Advisers Act of 1940 to address ‘pay-to-play’ practices by investment advisers. The new rule is designed to prohibit advisers from seeking to influence the award of advisory contracts by public entities by making or soliciting political contributions to or for those officials who are in a position to influence the awards.”

On August 3, 2009, the SEC proposed measures at the federal level intended to eliminate, or at least curtail, “pay-to-play” practices. The proposed pay-to-play rule was published in the Federal Register on August 7, 2009, and the SEC received 250 comment letters on the proposal through October 6, 2009. As currently drafted, the prohibitions on providing investment advisory services and payments to solicit, in each case as described in the proposed rule and outlined in our prior blog entry, arise only from contributions made on or after the effective date of the rule. The current draft rule also contains a prohibition on placement agents acting as intermediaries between public pension funds and advisers. The majority of the comment letters were critical of the ban on placement agents. However, the SEC has indicated that the rule may be revised to reflect public comment. To that end, in April 2010, the SEC engaged FINRA to craft rules for registered broker-dealers when acting as a placement agent soliciting investments from government investors. Please click here for further information on this issue.  As Doug Cornelius, Chief Compliance Officer at Beacon Capital Partners has speculated: “That would make it likely that placement agents will not be banned, but merely subject to some additional regulatory requirements.”

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As we previously reported, the Securities and Exchange Commission (SEC) has given notice that it intends to take a very active role with respect to pay-to-play issues in the securities markets. On March 18, 2010, the SEC issued a report warning firms that municipal securities rules prohibiting pay-to-play apply to affiliated financial professionals, not just a firm’s employees. In the report the Commission made it clear that an executive who supervises the activities of a broker, dealer or municipal securities dealer is not exempt from the MSRB’s pay-to-play rule just because he or she may be outside the firm’s corporate governance structure.

The pay-to-play rule at issue is MSRB Rule G-37, which generally prohibits firms from underwriting municipal bonds for an issuer for two years after a municipal finance professional (MFP) involved with that firm makes a campaign contribution to an elected official of that municipality. The Commission clarified that an executive may be deemed an MFP if he or she is not part of a broker-dealer, but oversees the broker-dealer from the vantage of a holding company.

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As we previously reported in our blog entry  “SEC Bans Third Party Solicitations of Municipal Investors,”  the investment industry has been in an uproar over the SEC’s proposed ban on the use of third party intermediaries (such as placement agents registered as broker-dealers with the SEC) by advisors in the government arena. In what appears to be a response to numerous comment letters the SEC received urging alternatives to the outright ban, the SEC is contemplating exemptions to its pay-to-play proposal. As reported in Reuters, “the agency appears to be willing to allow broker-dealers to act as legitimate placement agents if the Financial Industry Regulatory Authority (FINRA) the broker-dealer watchdog, implements strict pay-to-play rules.”

In a December letter to FINRA, an SEC official was quoted as saying “It occurs to us that an exception to the ban for registered broker-dealers acting as legitimate placement agents might be feasible if FINRA were to implement rules that would prohibit pay-to-play activities by those persons.” Herb Perone, a spokesman for FINRA acknowledged that FINRA had received letters from the SEC and that the proposal was under discussion.

The SEC proposal must be put to a final commission vote before the proposal becomes a rule. The SEC is still evaluating public comments and has not yet made a final recommendation to the commission.

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As we highlighted in our November 11, 2009 blog post, in June the Municipal Securities Rulemaking Board (“MSRB”) announced plans to file a rule change with the SEC to revise Rule G-37. The MSRB created Rule G-37 in 1994 to prevent municipal securities dealers from being awarded business based on political contributions. The rule prohibits dealers from engaging in municipal securities business with issuers for two years if they make certain contributions to the political campaigns of officials of such issuers. The proposed revision to Rule G-37 would require municipal securities dealers, their muni professionals, and political action committees to disclose the political contributions they make to bond ballot election campaigns. On December 4, 2009, the MSRB filed with the SEC amendments to Rule G-37 and Rule G-8. Rule G-8 pertains to books and records to be made by brokers, dealers, and municipal securities dealers. Below please find a link to the text of the proposed rule changes. The SEC must approve the rules before they would become effective.

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The Securities and Exchange Commission (SEC) has given notice that it intends to take a very active role with respect to pay-to-play issues in the securities markets and has put the regulated community on notice that it expects private corporate compliance training to be well under way as well.

As we have recently reported, the SEC has announced its intentions to take a significantly more aggressive regulatory posture with regard to the confluence of campaign contributions and public investing. Just last week, the House Financial Services Committee saw to it that the SEC has the tools for the job when it voted to double the SEC’s budget and awarded the Commission significantly greater regulatory powers.

The Municipal Securities Rulemaking Board (“MSRB”) has also gotten into the act by recently announcing plans to file a rule change with the SEC to revise Rule G-37 to prohibit dealers from engaging in municipal securities business with issuers for two years if they make certain contributions to the political campaigns of officials of issuers. The proposed revision to Rule G-37 would require municipal securities dealers, their muni professionals, and political action committees to disclose the political contributions they make to bond ballot election campaigns.

Meanwhile, in a case which should get the attention of compliance officers everywhere, the SEC has recently notified Southwest Securities Inc. that it plans to recommend “administrative and cease-and-desist proceedings” against the company based, in part, on the company’s failure to conduct compliance training for its financial services staff. In that case, the SEC initiated the action as a result of the company’s alleged use of political donations to win municipal bank work. Southwest’s (now former) employee at the center of the allegations maintained that he only unintentionally exceeded the MSRB cap of $250 donation per election and that the SEC was “more concerned about Southwest Securities and their lack of compliance training of their bankers.” According to FINRA records, Southwest said the employee had failed to report political contributions as required by MSRB and the employee, in turn, faulted the company for failing to adequately inform him of the MSRB rules.

In another, very significant action, the SEC announced last week that banking powerhouse JPMorgan has entered into a multi-million dollar settlement with the agency over allegations that company employees made unlawful payments to friends of county officials. Under the settlement JPMorgan agreed to cancel interest-rate swap contracts between it and Jefferson County, Alabama, pay $75 million in civil fines and payments, and forfeit $647 million in claimed termination fees under the swap contracts.

The allegations giving rise to liabilities in excess of $722 million for JP Morgan ultimately arose from allegations concerning the actions of just two (now former) managing directors of JPMorgan. “The transactions were complex but the scheme was simple,” SEC Enforcement Director Robert Khuzami said in a statement. “Senior JP Morgan bankers made unlawful payments to win business and earn fees.”

These federal enforcement developments highlight the importance of instituting a proper compliance training program. Firms should review and revise policies, practices, and procedures to stay current on the most recent versions of the rules and regulations promulgated by the SEC and MSRB. The SEC has put the regulated community on notice that failure to implement proper compliance policies and train employees adequately can have significant negative consequences. By undertaking the effort to develop a comprehensive compliance program before problems arise, companies can better protect themselves from potential liability and its related, potentially catastrophic, costs and expenses. 

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The pay-to-play probe related to U.S. public pension systems led by New York Attorney General Andrew Cuomo, the U.S. Securities and Exchange Commission and the Justice Department has claimed another victim. Bloomberg reports today that New Mexico's chief investment officer has resigned after being drawn into the nationwide investigation.

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Amid the continued debate over the SEC’s proposed pay-to-play rules there are some proponents who argue that oversight of pay-to-play practices must reach beyond the agency’s current recommendations. So even while many commentators oppose the rules on grounds that they sweep too broadly and impair competition, (click here to read comment letters) the former head of the SEC, Arthur Levitt, has declared that President Barack Obama should empower a “blue ribbon” panel to investigate pay-to-play practices of public pension funds.

The call for a probe into the public pension fund practices comes at a time when certain pension funds are examining their own investment processes and making positive changes, such as the California Public Employees’ Retirement System. However, the general concern among regulators and funds is that choices about who should invest public monies are influenced by factors like money and politics rather than an investment manager’s merits and cannot be subject to self-regulation. Levitt said in an interview on Bloomberg Television that public pension fund boards should not make investment decisions, but should cede such power to a professional staff.

The SEC’s proposed rules are meant to address those concerns. The SEC proposal is modeled on the rules proposed by the agency in 1999, when Levitt was chairman. Levitt has explained, “We had a lot of pressure [against the proposal in 1999].” The pressure came from Congress, Levitt said. “When you talk about campaign contributions, Congress gets very sensitive. They feel that’s one step away from their own activities.” Levitt’s panel would go beyond the SEC proposal and would investigate the public officials who sit on boards of state pension funds, highlight conflicts and recommend “best practices.”

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While most agree the SEC’s proposed new pay-to-play rules are a necessary development, there has been controversy around a proposal that would ban placement agents from representing clients before state and local persons. Unlike the MSRB pay-to-play rules, the SEC would prohibit investment advisers from using any third party intermediary, including placement agents registered as broker-dealers with the SEC, to solicit municipal investors on their behalf. In several comment letters filed with the SEC, participants in the private equity and venture capital industry argue that the SEC’s proposal to ban investment advisers’ use of third-party placement agents is overreaching and will put small and new funds out of business. London-based private equity research firm Preqin said in a comment letter that 85% of public pension funds and other institutions handling public money felt larger managers would be the main beneficiaries of the proposed ban.

Industry leaders such as Blackstone (which has a proprietary placement agent) have been urging the SEC to reconsider its proposed outright ban because they believe that third-party placement agents play a vital role for investment advisers. Blackstone’s Chief Executive Officer, Stephen Schwartzman, said in a comment letter that he agrees with getting rid of political fixers, but taking the “drastic step” of eliminating the function of legitimate placement agents would unfairly burden firms just starting out. For many first-time funds, a placement agent is often utilized to introduce the general partner to potential investors, including large institutional investors such as public pension funds. The ban on using placement agents is seen as harmful to an emerging industry just at the time the agent business is growing; Preqin reported that of the private equity firms that raised funds in 2008, 54 percent used a placement agent, up from 45 percent in 2007 and 40 percent in 2006.

The ban on placement agents has been compared to steroid usage in Major League Baseball. As Schwartzman wrote in his comment letter: “Recently, there have been reports of a few high profile baseball players using illegal steroids to unfairly enhance their performance. Their illegal and unethical behavior has unquestionably challenged professional baseball and yet no one is suggesting banning baseball.” In contrast, others support the ban. For example, one private equity executive said the danger of corruption is a big issue that needs to be regulated. “How do you decide who is legitimate and who isn’t?” the person asked.

As opposed to an outright ban of placement agents, smaller funds are asking the SEC to consider alternative approaches, such as implementing more stringent licensing, oversight and disclosure regulations equally on all participants in the investment process. The California Public Employees’ Retirement System (Calpers), the biggest U.S. public pension fund, said in May it adopted a new policy requiring external managers to disclose fees about placement agents they hire to seek Calpers business.

Given the controversy over this issue, the SEC has a challenging task at hand.

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Amid the storm of pay-to-play scandals and as pay-to-play has become an increasingly hot-button state issue, the Securities Exchange Commission (the “SEC”) stepped in on August 3, 2009 to propose measures at the federal level intended to eliminate or at least curtail “pay-to-play” practices. The measures are aimed to regulate the practice of money managers making political contributions or hidden payments in hopes of winning business from government officials and conversely government officials soliciting political contributions by guaranteeing an award of business. Although the SEC has initiated fraud cases in the past related to kickbacks in pay-to-play schemes, the proposed rules seek to comprehensively address the growth of the government pension plan market and the alleged evils related to its expansion.

According to SEC Chairman Mary Schapiro, “Pay to play practices can result in public plans and their beneficiaries receiving sub-par advisory services at inflated prices. Our proposal would significantly curtail the corrupting and distortive influence of pay to play practices.” As one commentator has stated “so Shapiro is trying to be proactive, reducing…the near occasions of sin.” The rule is intended to help ensure advisory contracts are awarded on professional competence and not political influence. However, as SEC Commissioner Luis Aguilar has cautioned, pay-to-play conduct “is incredibly hard to police.”

The new rule, which revisits a 1999 SEC proposal that was not finalized in part due to monitoring concerns, would prohibit an investment adviser from providing advisory services for compensation to a government client for two years after the adviser makes a contribution to certain elected officials or candidates. Like the 1999 SEC proposal, the proposed rule is modeled on rules G-37 and G-38 of the Municipal Securities Rulemaking Board (“MSRB”), which address pay to play practices in the municipal securities markets. The SEC has couched the rule as a two-year “time out” on conducting compensated advisory business with a government client after a contribution is made and not as a limitation or outright ban of political contributions.

The proposal would also forbid an adviser from providing or agreeing to provide, directly or indirectly, payment to any third party for a solicitation of advisory business from any government entity on behalf of such adviser. Additionally, it would prevent an adviser from soliciting from others, or coordinating, contributions to certain elected officials or candidates or payments to political parties where the adviser is seeking government business. New recordkeeping requirements that would require a registered adviser to maintain certain records of the political contributions made by the adviser are also proposed.

The implications of the proposed measures could be wide ranging. For example, the new recordkeeping rules may have the unintended effect of causing non-U.S. advisers to private pools not to accept investments from U.S. government entities in order to avoid onerous record keeping requirements. In addition, commentators have speculated that the proposed ban on the use of third parties (like placement agents) would make it difficult for smaller and newer funds to develop business because such funds would not have existing contacts with the managers of public pools of capital. The uneven playing field for small funds in turn could limit the investment choices of pension plan officials, who may not have the time and resources to evaluate potential investment opportunities. The SEC seeks comments to address these and other possible pitfalls associated with its proposal.

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