Did the SEC just drop a big hint about pay-to-play prosecutions?

By David Sirota , written on May 27, 2014

From The News Desk

One of the major legal issues spotlighted by Pando's recent investigation of state government investments are the so-called anti-circumvention clauses embedded in state and federal pay-to-play rules. The SEC rule, for example, declares that when it comes to bans on state campaign contributions from investment advisers managing state pension money, it is “unlawful for an adviser or any of its covered associates to do anything indirectly which, if done directly, would result in a violation."

Translated into plain English from government-ese, the rule seems to be saying you cannot deliberately route campaign contributions through organizations that then direct that money to the state officials in question. So, as just one example, in the much-discussed case of New Jersey, that concept could raise serious legal questions about contributions from employees of investment firms to groups like the RNC and the RGA, which spend heavily on New Jersey state elections.

"Could" though, is the operative word because there remains a big question about enforcement: will the SEC actually enforce such anti-circumvention provisions?

Up until now, there's been little clue about any answer. But as of the last few days, it seems the SEC may be dropping some hints:

It is rare that the Securities and Exchange Commission announces a new approach to pursuing violations. Mary Jo White, the agency’s chairwoman, did just that last week when she pointed to a seldom-used provision of the federal securities laws that the S.E.C. will employ against people who use others to do their bidding.

In a speech at a white-collar crime conference sponsored by the New York City Bar Association, Ms. White said that “One new approach to charging individuals is to use Section 20(b) of the Exchange Act,” which she said can be “potentially a very powerful tool” for pursuing violations...

Section 20(b) provides that “It shall be unlawful for any person, directly or indirectly, to do any act or thing which it would be unlawful for such person to do under the provisions of this chapter or any rule or regulation thereunder through or by means of any other person.”

To be sure, White's speech was not specifically about her agency's pay to play rules. It was instead primarily about prosecutions of individuals for disseminating information about financial transactions. 

However, as the New York Times notes, White seems in general to be positioning the agency to "pursue conduct that skirts the edge of the securities laws by those who use intermediaries to do their bidding." If that ends up being the case, it certainly could have serious implications for the way the SEC treats campaign contributions.