The Law Allows Businesses to Act to Protect Voting Rights

April 9, 2021, 8:01 AM

There has perhaps never been a greater collective awareness of a single state’s voting rights law than there is this month for SB 202, the bill that Georgia Gov. Brian Kemp (R) signed into law. SB 202 imposes voting-related rules and restrictions that will affect thousands of Georgia voters, and companies headquartered in Georgia faced intense public pressure to speak out against the bill.

The floodgates have burst when it comes to denouncing Georgia’s new law, but it remains to be seen whether the outcry is a blip in corporate consciousness or the next stage of a full-on political awakening. As virtually every other state in the nation considers its own restrictive voting rights legislation—and as the U.S. Senate considers legislation that would preserve and protect the right to vote—business leaders are scrambling to understand these bills and determine what their companies can and should do about them.

Companies surely face competing factors as they decide whether to wade into turbulent political waters (although there is a growing body of qualitative and quantitative evidence to show that what is good for voting rights is good for the bottom line). What is clear, however, is that state and federal legal restrictions on corporate political activity are not a significant barrier to a company or its executives speaking out and taking a stand against voter suppression legislation.

In fact, political laws can provide a road map for companies to navigate exactly how they can speak out against voting laws that may harm their employees, customers, or investors.

Political Laws Offer Road Map for Speaking Out

As a starting point, the U.S. Supreme Court has largely given corporations a free reign to engage in (meaning states can do little to regulate) “issue ads” that take a stand on broad policy issues but don’t identify any particular candidate or advocate for or against any particular legislation or government rule.

This means that most corporate or CEO statements speaking out in favor of the right to vote in general and against suppressive voter laws in the abstract are low-hanging fruit for corporate political engagement (even if the ads are strongly worded or the ad campaigns are expensive).

Corporations can also more directly speak out against state-specific voter suppression legislation or in favor of federal voting rights bills. Doing so may simply lead to lobbying disclosure obligations under the applicable jurisdiction’s law.

For companies already registered to lobby at the federal level or in their home states (as most companies are), the burden here is minimal: the company simply has to account for its voting rights advocacy on the same reports it is already required to file that disclose its other lobbying activity.

FEC’s Full Menu of Permissible Activities

When it comes to encouraging and supporting voting, voting rights, and civic engagement outside the context of a particular legislative battle, Federal Election Commission (FEC) regulations provide companies with a full menu of permissible activities. Congress long ago banned companies from making direct or indirect contributions to federal candidates and political parties. However, when the FEC issued regulations applying this prohibition, it identified a range of activities that are not considered a “contribution” and therefore are allowed.

For example, the FEC regulations allow corporations to fund and conduct their own nonpartisan voter engagement efforts. Specifically, companies can promote voter registration and conduct voter registration and get-out-the-vote drives (including online voter registration drives in most states) for employees or for their customers and the general public as long as they do so on a nonpartisan basis.

The FEC also allows companies to distribute local voting instructions and to provide information on voter ID requirements and early voting dates to employees and the general public. Companies that want to go further and educate their employees and customers on where their members of Congress stand on federal voting rights legislation are allowed to distribute voter guides and voting records.

The FEC even makes it possible for companies to provide resources directly to underfunded state and local election officials to help cover election administration costs.

Companies Have a Choice

All this means that companies and their legal counsel have a choice. They can continue to view campaign finance, lobbying disclosure, and other political laws solely as a code of conduct to be followed to avoid ethics scandals and legal liability, with their political counsel acting as lifeguards hired to point out danger along the shore.

Alternatively, in the face of mounting pressure from stakeholders to take a stand against voter suppression legislation, companies can dive headlong into the political waters and leverage the law as a solution to business problems and reputational threats. Their political counsel can act as swim coaches training them on how the law can make them stronger and more competitive.

The right answer on when and how to take a stand against voter suppression legislation may be different for each company, but the right answer is never “we’re not legally allowed to say anything about it.”

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owner

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Tyler Hagenbuch is a political law attorney with Perkins Coie. He helps business, campaigns, and other clients understand how political and ethics laws can serve as strategic tools that both help them solve business problems and protect their reputational interests.

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