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Caleb Burns Comments on FEC Response to Proposal of Free Cybersecurity Services for Political Campaigns

Legaltech News, New York Law Journal
June 12, 2019

Caleb P. Burns, partner in Wiley Rein’s Election Law & Government Ethics Practice, was quoted by Legaltech news in a June 7 article about two draft advisory opinions issued by the Federal Elections Commission (FEC) last week in response to a cybersecurity firm proposing to offer free or reduced-cost phishing solutions to federal candidates and political committees. The article was also published in the New York Law Journal on June 11.

According to Legaltech news, the two opinions state that the cybersecurity firm’s proposal would violate the Federal Election Campaign Act, which prohibits corporations from making contributions to federal candidates, political parties or political committees.

In the article, Burns commented on another FEC advisory opinion from last August in which the Microsoft Corporation was approved to provide “enhanced online security services” to existing “election sensitive” customers at no additional charge. According to the advisory opinion, Microsoft framed the request on “commercial and not political considerations.”

"That was important to the FEC. Microsoft articulated commercial and business issues related to its brand and the integrity of its product. Those and other factors, in the FEC's estimation, were a sufficient commercial justification," said Mr. Burns.

Mr. Burns claimed that there are many factors that can influence an election and there is a long list of broad FEC advisory opinions interpreting the phrase 'influence an election' in the absolute sense, rather than when influence is exerted for one side over the other.

"At the end of the day, I think this advisory decision (from last week) demonstrates that the FEC's historic interpretation of whether activity will 'influence an election' is faulty and probably not what the statute intended," Mr. Burns said.

To read the article, click here (subscription required).