Chris DeLacy is a partner at Holland & Knight in Washington, DC, where he leads their Political Law Group and also serves as general counsel to the Holland & Knight Committee for Effective Government PAC. A graduate of William & Mary Law School, Mr. DeLacy has served as counsel and legal advisor to Senator John Warner, the Technology Subcommittee of the House Science Committee, and the Virginia General Assembly. As a political law attorney he advises clients on a number of political compliance issues, including campaign finance, Congressional gifts and travel, and lobbying. In November 2011 he visited William & Mary Law School, where he spoke to the W&M Election Law Society regarding his experience and expertise in political and election law.
When you spoke at the W&M Election Law Society’s luncheon event I was struck by the variety of issues you spoke of that related to the election law field. Could you discuss the array of cases that you see through your work that stem from your expertise in election and campaign finance law?
A political law practice touches on a wide-variety of legal issues including campaign finance, government ethics, lobbying compliance, pay-to-play, white collar, non-profit, and tax. It also involves a fair amount of non-legal advice related to politics and plain old common sense. I have handled cases that involve the Federal Election Commission, the Senate Ethics Committee, the Office of Congressional Ethics, Inspector General Investigations, Department of Justice investigations, the Maryland Board of Ethics, and the Texas Board of Ethics. However, the vast majority of my work involves advice related to political law compliance, which is intended to prevent issues from ever progressing to the investigation or enforcement stage.
When you are working for a candidate running for office, how much legal work is done in preparation for an election versus after?
Smart candidates will invest in a substantial amount of legal advice and compliance infrastructure on the front-end. In today’s political world, it is all but inevitable candidates will face some sort of legal challenge such as a recount, audit, or campaign finance complaint. Once candidates take office, it is more and more common for ethics complaints to be filed against them. However, not all candidates have the resources to make this type of investment. Almost all Presidential campaigns invest heavily in legal and compliance, most Senate campaigns make a moderate investment, and very few House campaigns make any investment at all. In my view, a very small investment in legal and compliance can pay big dividends down the road. I have seen many $1,000 problems turn into $100,000 problems and I have seen a few $100,000 problems turn into $1 million problems.
Are there particular issues that require legal counsel more often than others in elections or do the issues depend upon the campaign?
Recounts, audits, and enforcement actions almost always require legal counsel. Although not directly related to campaigns, redistricting usually requires legal counsel, and legal counsel is mandatory if the redistricting plan ends up being litigated. Smaller problems can be handled without counsel, but I would generally not recommend it.
How much partisanship is reflected in election/political law practice and how does an attorney specializing in the field balance their own political views with those of their clients?
The work is the same regardless of party. That said, politicians tend to favor working with lawyers from the same political party. This preference is not usually based on any legal or ethical requirement, but the result is that lawyers must usually pick one party or the other.
When you visited William & Mary Law School, you discussed the reactionary nature of election law. Could you elaborate on that and discuss what areas of election law and/or campaign finance you think will see reform in the future?
Most new laws in the area of political law are enacted in response to a scandal or major event. The Federal Election Campaign Act and Ethics in Government Act were passed in response to the Watergate scandal. The Help America Vote Act was passed in response to the 2000 Florida recount. The Honest Leadership and Open Government Act was passed in response to the Abramoff scandal. So the next major piece of legislation in this area will likely be dictated by the next scandal or major event. One current issue is the future of the public financing system. This year, neither major party candidate is expected to accept any public financing for the first time since the system was created in the 1970s. However, there appears to be zero appetite in Congress to address this issue.
Kevin Elliker is a first-year student at William and Mary Law