A Preclearance Checklist to Avoid Violating the Pay to Play Rule

Private fund managers that have government entity investors, such as public pension funds, must be careful to ensure that employee political contributions do not run afoul of Rule 206(4)‑5 under the Investment Advisers Act of 1940 – the so-called “pay to play rule” (Rule). The Rule bars an investment adviser from collecting compensation for providing investment advice to government entities for two years after covered employees make more than a de minimis contribution to the campaign of officials who can influence the selection of investment advisers by those entities. The centerpiece of many pay to play compliance policies and procedures is a requirement that employees clear donations in advance. 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. For a look at the consequences of violating the Rule, see “SEC Continues to Target Pay to Play Violations” (Aug. 30, 2018); “Pay to Play, Revenue Sharing and Wrap Fees Remain on the SEC’s Radar” (Apr. 20, 2017); and “SEC Starts Year With Pay to Play Penalties” (Jan. 28, 2016).

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