Pay-to-Play Regulation and Enforcement in 2022

As we head right into a interval of hotly contested elections this yr which can be more likely to generate important public participation, now’s the time for funding advisers and different registrants to overview, and if obligatory strengthen, their pay-to-play compliance insurance policies and procedures. Because the regulatory, monetary and reputational penalties of non-compliance are important, advisers are well-served to overview their compliance practices concerning the “pay to play” guidelines and remind acceptable adviser personnel of their obligations beneath these guidelines. See under for Vedder Value’s evaluation of the “pay to play” guidelines, associated enforcement actions and business greatest practices.  

The “Pay to Play” Rule 

Since its adoption in 2010, the “pay-to-play” rule (the “Rule”, which is Rule 206(4)-5 beneath the Funding Advisers Act of 1940), has materially impacted the enterprise growth actions and compliance applications of funding advisers. As a normal matter, the Rule prohibits funding advisers from receiving compensation for offering funding advisory companies to authorities entity shoppers for a interval of two years the place the adviser or coated personnel of the adviser have made political marketing campaign contributions to sure officers of the federal government entity. This limitation is meant to stop advisers and their personnel from making political contributions to candidates for public workplace who’re in a place to affect the award of advisory contracts for numerous authorities entities, together with public pension funds. The Monetary Business Regulatory Authority, the Municipal Securities Rulemaking Board and the Commodity Futures Buying and selling Fee every even have their very own pay-to-play guidelines, which taken collectively equally restrict the conduct of broker-dealers, municipal advisers, swap sellers and their personnel, as relevant.1   

Prohibited Conduct

The Rule prohibits advisers from (i) offering funding advisory companies for compensation to a authorities entity inside two years after it or one among its coated associates makes a contribution to sure officers of the federal government entity (known as the “two-year time out provision”); (ii) paying or agreeing to pay a third-party solicitor to solicit authorities entities for funding advisory companies until the solicitor is registered as a broker-dealer or funding adviser and topic to pay-to-play restrictions;2 and (iii) soliciting or coordinating sure contributions to officers, candidates or political events the place the adviser is offering or looking for to offer funding advisory companies to authorities entities. Moreover, the Rule incorporates a “catch-all” provision that prohibits any act completed not directly, which, if completed instantly, would violate the Rule—together with an adviser or its coated associates directing or funding contributions by third events which might in any other case be in violation of the Rule. Advisers are additionally required to take care of sure books and data3 documenting their coated associates, authorities entity shoppers, political contributions and compensated solicitors of presidency entity shoppers.  

Officers of a Authorities Entity

The questions that mostly come up pertaining to the Rule encompass the definitions of “official,” and “government entity.”4 The Rule defines an “official” as “any person (including any election committee for the person) who was, at the time of the contribution, an incumbent, candidate or successful candidate for elective office of a government entity, if the office: (i) is directly or indirectly responsible for, or can influence the outcome of, the hiring of an investment adviser by a government entity; or (ii) has authority to appoint any person who is directly or indirectly responsible for, or can influence the outcome of, the hiring of an investment adviser by a government entity.”5 This considerably obscure definition has left compliance officers and business personnel to interpret what conduct and personnel the Rule intends to focus on. “Officials” contains each state and native workplace holders and candidates for state and native workplace. It is very important bear in mind, nonetheless, that contributions to candidates for federal workplace might set off software of the Rule if these candidates for federal workplace are additionally holders of state or native workplaces on the time of the contribution. 

Through the rulemaking and remark course of, the SEC rejected quite a few requests from business individuals to extra clearly outline the sorts of public workplace that represent a “public official” for functions of the Rule on the grounds that important variances between how state and municipal statutes entrust administration of public funds would make any try to determine particular officers who’re in a place to affect the choice of an adviser each over-inclusive and under-inclusive relying on the circumstances.6 Nonetheless, in its Adopting Launch to the Rule, the SEC did point out by the use of instance {that a} governor with authority to nominate some members of a state pension fund board of administrators which in flip has authority to rent an funding adviser could be an “official” for functions of the Rule as would any state legislators additionally serving on the board.

Additional, it will be significant for advisers and their coated associates additionally to keep in mind that contributions to an official with out authority to retain an funding adviser should set off software of the Rule if the official has authority to nominate others, who, in flip, have authority to rent or affect the hiring of funding advisers for a authorities entity. Furthermore, it’s the scope of authority of the actual workplace of an official, not the affect really exercised by the person, that determines whether or not the person has affect over the awarding of an funding advisory contract beneath the Rule.7   


The definition of a “contribution” for functions of the Rule is equally broad. It contains not simply financial contributions but additionally any present, subscription, mortgage, or anything of worth made for the aim of influencing any election, for federal, state, or native workplace in addition to the cost of money owed incurred in reference to any such election. The cost of transitional or inaugural bills of a profitable candidate for state or native workplace are additionally contributions beneath the Rule.  Thus, funding advisers ought to ensure their pay-to-play compliance insurance policies and procedures, together with any contribution pre-clearance requirement, are broad sufficient to seize the expansive definition of a contribution beneath the Rule.     


If an adviser or coated affiliate has made a political contribution that might set off software of the Rule, there are very restricted exceptions to the two-year day out provision for (i) mixture contributions as much as $350 per election to an elected official or candidate for whom the person is entitled to vote, and $150 per election to an elected official or candidate for whom the person just isn’t entitled to vote; and (ii) advisers or coated associates that acquire the return of their contributions (of as much as $350) inside 60 days of discovery, and the adviser discovers the contribution inside 4 months. The exception for returned contributions can solely be used two or 3 times a yr relying on the variety of coated associates an adviser has and might by no means be used greater than as soon as for a similar coated affiliate. The SEC Division of Enforcement has strictly enforced these exception limits by bringing enforcement actions in opposition to advisers who recognized and obtained the return of contributions albeit exterior the slender parameters of those exceptions.8  

Exemptive Reduction

Whereas acquiring the refund of a contribution exterior the phrases of a licensed exception might neither treatment a violation nor afford safety from enforcement, it could strengthen a declare for exemptive reduction. The Rule permits an adviser to file an software for exemptive reduction from the two-year day out provision. When contemplating the applying, the SEC considers a wide range of elements, together with whether or not the adviser (i) had insurance policies and procedures in place to stop violations of the Rule; (ii) had no prior or contemporaneous information of the contribution; (iii) took all accessible steps to acquire return of the contribution; and (iv) took different remedial or preventative measures. The SEC additionally considers the general public curiosity in addition to the contributor’s employment standing on the time of the contribution, the timing and quantity of the contribution, the character of the election, and the contributor’s motive in making the contribution.


The SEC Division of Enforcement has aggressively enforced the Rule and will probably proceed to take action. In 2017, following a greater than year-long investigative sweep, it introduced enforcement actions in opposition to 10 funding advisers for violations of the Rule and has introduced quite a few instances since that point.   Furthermore, it’s comparatively straightforward for the SEC employees to detect no less than some violations of the Rule throughout investigations as a result of particulars of political contributions and the identification of pension fund advisers are usually issues of public document. As well as, the employees may additionally detect violations by the examination course of.  

Finest Practices

The perfect time for advisers to deal with contributions which will set off the two-year day out provision or in any other case violate the Rule is earlier than the contributions are made. Advisers ought to think about reviewing their compliance insurance policies and procedures now and, the place obligatory, strengthen them together with, the place acceptable, by a sturdy contribution pre-clearance course of, coaching coated associates no less than yearly, issuing periodic reminders, requiring annual certifications of compliance, and reviewing accessible federal, state, and native marketing campaign finance databases.   


1 See FINRA Rule 2030; MSRB Rule G-37; 17 C.F.R. § 23.451 (CFTC Rule 451). 

2 Political Contributions by Sure Funding Advisers, Funding Advisers Act (“IAA”) Launch No. 3043 (Sept. 13, 2010) (“Adopting Release”) at 71.

3 See 17 C.F.R. § 275.204-2(a)(18).

4 A “government entity” contains “all state and local governments, their agencies and instrumentalities, and all public pension plans and other collective government funds, including participant-directed plans such as 403(b), 457, and 529 plans.” See Adopting Launch at 43; Rule 206(4)-5(f)(5). 

5 See Rule 206(4)-5(f)(6).

6 See Adopting Launch at 44.

7 Id.

8 See, e.g., IAA Launch No. 4614 (Jan. 17, 2017)

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