Use a Preclearance Checklist to Avoid Violating the Pay to Play Rule

In any presidential or mid-term election year, a fund manager is likely to see an increase in employees’ contributions to various political campaigns. Given the current political climate – coupled with the pandemic, societal unrest and economic turmoil – that increase in donations may be even more dramatic. As a result, fund managers that have government-entity investors (e.g., public pension funds) must be particularly careful to ensure that employee political contributions do not run afoul of Rule 206(4)‑5 of the Investment Advisers Act of 1940 – the so-called “pay to play rule” (Rule). The centerpiece of many pay to play compliance policies and procedures is a requirement that employees preclear donations. This article reviews the Rule’s requirements and restrictions; discusses the importance of preclearance; and provides a checklist that CCOs can use to approve or deny employee contributions ahead of the upcoming mid-term elections. The article also contains a standalone version of the checklist that can be downloaded, adapted and used. For a look at the consequences of violating the Rule, see “With Midterm Elections Looming, Fund Managers Must Review the Pay to Play Rule” (Sep. 20, 2018); “SEC Continues to Target Pay to Play Violations” (Aug. 30, 2018); and “Pay to Play, Revenue Sharing and Wrap Fees Remain on the SEC’s Radar” (Apr. 20, 2017).

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