
[Federal Register Volume 80, Number 250 (Wednesday, December 30, 2015)]
[Notices]
[Pages 81709-81736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32822]



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Vol. 80

Wednesday,

No. 250

December 30, 2015

Part III





Securities and Exchange Commission





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Notice of Filing of a Proposed Rule Change Consisting of Proposed 
Amendments to Rule G-37, on Political Contributions and Prohibitions on 
Municipal Securities Business, Rule G-8, on Books and Records, Rule G-
9, on Preservation of Records, and Forms G-37 and G-37x; Notices

  Federal Register / Vol. 80 , No. 250 / Wednesday, December 30, 2015 / 
Notices  

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-76763; File No. SR-MSRB-2015-14]


Self-Regulatory Organizations; Municipal Securities Rulemaking 
Board; Notice of Filing of a Proposed Rule Change Consisting of 
Proposed Amendments to Rule G-37, on Political Contributions and 
Prohibitions on Municipal Securities Business, Rule G-8, on Books and 
Records, Rule G-9, on Preservation of Records, and Forms G-37 and G-37x

December 23, 2015.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on December 16, 2015, the Municipal Securities Rulemaking Board 
(the ``MSRB'' or ``Board'') filed with the Securities and Exchange 
Commission (the ``SEC'' or ``Commission'') the proposed rule change as 
described in Items I, II, and III below, which Items have been prepared 
by the MSRB. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The MSRB filed with the Commission a proposed rule change 
consisting of proposed amendments to Rule G-37, on political 
contributions and prohibitions on municipal securities business, Rule 
G-8, on books and records to be made by brokers, dealers, municipal 
securities dealers, and municipal advisors, Rule G-9, on preservation 
of records, and Forms G-37 and G-37x (the ``proposed rule change''). 
The MSRB requested that the proposed rule change be approved with an 
effective date to be announced by the MSRB in a regulatory notice 
published no later than two months following the Commission approval 
date, which effective date shall be no sooner than six months following 
publication of the regulatory notice and no later than one year 
following the Commission approval date; provided, however, that any 
prohibition under Rule G-37 already in effect before the effective date 
of the proposed rule change shall be of the scope, and continue for the 
length of time, provided under Rule G-37 as in effect at the time of 
the contribution that resulted in such prohibition.
    The text of the proposed rule change is available on the MSRB's Web 
site at www.msrb.org/Rules-and-Interpretations/SEC-Filings/2015-Filings.aspx, at the MSRB's principal office, and at the Commission's 
Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the MSRB included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The MSRB has prepared summaries, set forth in Sections 
A, B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Dodd-Frank Wall Street Reform and Consumer Protection Act of 
2010 (the ``Dodd-Frank Act'') amended Section 15B of the Exchange Act 
\3\ to provide for the regulation by the Commission and the MSRB of 
municipal advisors and to grant the MSRB certain authority to protect 
municipal entities and obligated persons.\4\ The Dodd-Frank Act 
establishes a federal regulatory regime that requires municipal 
advisors to register with the Commission \5\ and prohibits municipal 
advisors from engaging in any fraudulent, deceptive, or manipulative 
act or practice.\6\ The Dodd-Frank Act also grants the MSRB broad 
rulemaking authority over municipal advisors and municipal advisory 
activities.\7\
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    \3\ 15 U.S.C. 78o-4.
    \4\ Pub. L. 111-203, 124 Stat. 1376 (2010).
    \5\ See Section 15B(a)(1)(B) of the Exchange Act (15 U.S.C. 78o-
4(a)(1)(B)).
    \6\ See Section 15B(a)(5) of the Exchange Act (15 U.S.C. 78o-
4(a)(5)).
    \7\ See Section 15B(b)(2) of the Exchange Act (15 U.S.C. 78o-
4(b)(2)).
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    As charged by Congress, the MSRB is in the process of developing a 
comprehensive regulatory framework for municipal advisors and their 
associated persons, including the proposed amendments to Rule G-37.\8\ 
The proposed rule change would extend to municipal advisors through 
targeted amendments to Rule G-37 the regulatory policies in Rule G-37 
that address ``pay to play'' practices and the appearance thereof. 
``Pay to play'' practices typically involve a person or an entity 
making cash or in-kind political contributions (or soliciting or 
coordinating others to make such contributions) to help finance the 
election campaigns of state or local officials or bond ballot 
initiatives as a quid pro quo for the receipt of government contracts. 
The proposed rule change would further the purposes of the Exchange 
Act, as amended by the Dodd-Frank Act, by addressing an area of 
potential corruption, or appearance of corruption, in connection with 
the awarding of municipal advisory business, which impedes a free and 
open market in municipal securities and may harm investors, issuers, 
municipal entities and obligated persons.
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    \8\ In furtherance of this framework, the MSRB adopted Rule G-44 
regarding the supervisory and compliance obligations of municipal 
advisors. See Release No. 34-73415 (October 23, 2014), 79 FR 64423 
(October 29, 2014) (File No. SR-MSRB-2014-06) (SEC order approving 
Rule G-44). The MSRB also adopted amendments to Rule G-20, on gifts, 
gratuities and non-cash compensation, to extend provisions of the 
rule to municipal advisors and Rule G-3 to establish registration 
and professional qualification requirements for municipal advisors. 
See Release No. 34-76381 (November 6, 2015), 80 FR 70271 (November 
13, 2015) (File No. SR-MSRB-2015-09) (SEC order approving amendments 
to Rule G-20 on gifts, gratuities and non-cash compensation); and 
Release No. 34-74384 (February 26, 2015), 80 FR 11706 (March 4, 
2015) (File No. SR-MSRB-2014-08) (SEC order approving registration 
and professional qualification requirements for municipal advisor 
representatives and municipal advisor principals) (``Order Approving 
MA Qualification Requirements''). The MSRB also proposed Rule G-42, 
regarding duties of non-solicitor municipal advisors. See Release 
No. 34-74860 (May 4, 2015), 80 FR 26752 (May 8, 2015) (File No. SR-
MSRB-2015-03) (notice of filing and request for comment) (``Proposed 
Rule G-42 Filing''); Release No. 34-75737 (August 19, 2015), 80 FR 
51645 (August 25, 2015) (notice of filing of Amendment No. 1 and 
request for comment); and Release No. 34-76420 (November 10, 2015) 
80 FR 71858 (November 17, 2015) (File No. SR-MSRB-2015-03) (notice 
of filing of Amendment No. 2 and request for comment).
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    Such practices among municipal advisors create conflicts of 
interest and give rise to circumstances suggesting quid pro quo 
corruption involving public officials of municipal entities resulting 
from such conflicted interests and the receipt of political 
contributions. In the worst cases, such practices involve the actual 
corruption of public officials of municipal entities. Even if actual 
quid pro quo corruption does not occur, the appearance of quid pro quo 
corruption in the awarding of municipal advisory business (or municipal 
securities business or engagements to provide investment advisory 
services when a municipal advisor solicits on behalf of brokers, 
dealers or municipal securities dealers (``dealers'') or investment 
advisers) may be as damaging to the integrity of the

[[Page 81711]]

municipal securities market as actual quid pro quo corruption. Further, 
the appearance may breed actual quid pro quo corruption as municipal 
advisors may feel a need to make quid pro quo political contributions 
in order to be considered a candidate for the award of business that 
they believe will only be awarded to contributors.\9\ Similarly, public 
officials may feel the need to engage in quid pro quo corruption in 
order to avoid a financial disadvantage to their campaigns as compared 
to other officials they believe engage in such practices. Even in the 
absence of actual quid pro quo corruption, the mere appearance of such 
corruption stifles and creates artificial barriers to competition for 
municipal advisors that believe that ``pay to play'' practices are a 
prerequisite to being awarded municipal advisory business (or municipal 
securities business or engagements to provide investment advisory 
services for broker, dealer, municipal securities dealer or investment 
adviser clients of a municipal advisor soliciting such business on 
behalf of clients) but are unwilling or unable to engage in such 
practices.
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    \9\ Rule G-37 was first adopted in the wake of similar dealer 
concerns in the municipal securities market. See Blount v. SEC, 61 
F.3d 938, 945-946 (D.C. Cir. 1995), cert. denied, 517 U.S. 1119 
(1996) (``Blount'') citing Thomas T. Vogel Jr., Politicians Are 
Mobilizing to Derail Ban on Muni Underwriters, Wall St. J., December 
27, 1993, (reporting about some officials rallying support for a 
boycott of firms that vowed to halt municipal campaign giving); John 
M. Doyle, Muni Bond Market Faces Scrutiny Allegations Include 
Influence Peddling, Cincinnati Post, March 1, 1994 (``Of primary 
concern to most reformers is the practice of `pay to play,' the 
belief that political contributions by firms are necessary to 
compete for muni bond underwriting business''); John D. Cummins, 
Blount v. SEC: An End for Pay-to-Play, Bond Buyer, August 21, 1995 
(noting that support for ``pay to play'' reform ``grew out of a 
desire to end the perceived abuses'' as well as ``individual bankers 
who were simply tired of writing checks to politicians'').
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    ``Pay to play'' practices are rarely explicit: Participants 
typically do not let it be known that contributions or payments are 
made or accepted for the purpose of influencing the selection of a 
municipal advisor (or dealer, municipal advisor or investment adviser 
on behalf of which a municipal advisor acts as a solicitor).\10\ 
Nonetheless, as discussed infra,\11\ numerous developments in recent 
years have led the MSRB to conclude that, at least in some instances, 
the awarding of municipal advisory business (or municipal securities 
business or engagements to provide investment advisory services when a 
municipal advisor solicits on behalf of dealers or investment advisers) 
has been influenced, or has appeared to have been influenced, by ``pay 
to play'' practices.
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    \10\ See Blount, 61 F.3d at 945 (``While the risk of corruption 
is obvious and substantial, actors in this field are presumably 
shrewd enough to structure their relations rather indirectly. . . 
.''); id. (``[N]o smoking gun is needed where, as here, the conflict 
of interest is apparent, the likelihood of stealth great, and the 
legislative purpose prophylactic.'').
    \11\ See infra, nn. 99-102.
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    In the Board's view, continued ``pay to play'' practices by 
professionals seeking or engaging in municipal advisory business 
(including municipal advisors soliciting municipal entities on behalf 
of dealers, municipal advisors and investment advisers) and the 
awarding of business by conflicted officials erodes public trust and 
confidence in the fairness of the municipal securities market, impedes 
a free and open market in municipal securities, may damage the 
integrity of the market, and may increase costs borne by municipal 
entities, issuers, obligated persons and investors. The MSRB believes 
that extending the policies embodied in Rule G-37 to municipal advisors 
through targeted amendments to Rule G-37 will help ensure common 
standards for dealers and municipal advisors, who operate in the same 
market, and frequently with the same clients.
Rule G-37
    In the years preceding the MSRB's adoption of Rule G-37, widespread 
reports regarding the existence of ``pay to play'' practices had fueled 
industry, regulatory and public concerns, calling into question the 
integrity, fairness, and sound operation of the municipal securities 
market.\12\ When proposing Rule G-37 in 1994, the Board believed, based 
on the Board's review of comment letters and other information, that 
there were ``numerous instances in which dealers have been awarded 
municipal securities business based on their political contributions.'' 
\13\ Moreover, in the Board's view, even when impropriety had not 
occurred:
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    \12\ See Release No. 34-33868 (April 7, 1994), 59 FR 17621, 
17623 (April 13, 1994) (File No. SR-MSRB-94-02) (``Rule G-37 
Approval Order'').
    \13\ See Release No. 34-33482 (January 14, 1994), 59 FR 3389, 
3390 (January 21, 1994) (File No. SR-MSRB-94-02) (``Notice of 
Proposed Rule G-37'').

political contributions create a potential conflict of interest for 
issuers, or at the very least the appearance of a conflict, when 
dealers make contributions to officials responsible for, or capable 
of influencing the outcome of, the awarding of municipal securities 
business and then are awarded business by issuers associated with 
these officials.\14\
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    \14\ See id. at 3390.

    The problems associated with ``pay to play'' practices undermined 
investor confidence in the municipal securities market, which was 
essential to the liquidity and capital-raising ability of the 
market.\15\ Further, such practices stifled and created artificial 
barriers to competition, thereby harming investors and the public 
interest and increasing market costs associated with the municipal 
securities business.\16\ In light of these concerns, the Board 
determined that regulatory action was necessary to protect investors 
and maintain the integrity of the municipal securities market.\17\ In 
approving Rule G-37 in 1994, the Commission affirmed that the rule was 
adopted ``to address the real as well as perceived abuses resulting 
from `pay to play' practices in the municipal securities market.'' \18\ 
The Commission also noted that ``[Rule G-37] represents a balanced 
response to allegations of corruption in the municipal securities 
market.'' \19\
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    \15\ See id.
    \16\ See id.
    \17\ See id.
    \18\ See Rule G-37 Approval Order, at 17624.
    \19\ Id. at 17628.
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    Current Rule G-37 is a comprehensive regulatory regime composed of 
several separate and mutually reinforcing requirements for dealers. 
Chief among them are: Limitations on business activities that are 
triggered by the making of certain political contributions; limitations 
on solicitation and coordination of political contributions; and 
disclosure and recordkeeping regarding political contributions and 
municipal securities business.
    This regime is widely recognized as having significantly curbed 
``pay to play'' practices and the appearance of such practices in the 
municipal securities market.\20\ Rule G-37 also has been used as a 
model by various federal regulators to create ``pay to play'' 
regulations in other segments of the financial services industry. 
Pursuant to the Advisers Act,\21\ the SEC adopted Rule 206(4)-5 (the 
``IA Pay to Play Rule''), which applies to investment advisers and 
political contributions.\22\ The Commodity Futures Trading Commission 
subsequently adopted Rule 23.451, a rule regarding swap dealers

[[Page 81712]]

and political contributions, (the ``Swap Dealer Rule''),\23\ pursuant 
to the Commodity Exchange Act.\24\
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    \20\ See Release No. IA-3043 (July 1, 2010), 75 FR 41018, at 
41020, 41026-41027 (July 14, 2010) (File No. S7-18-09) (SEC order 
adopting a rule regarding political contributions made by investment 
advisers pursuant to the Investment Advisers Act of 1940 (``Advisers 
Act''), (``Order Adopting IA Pay to Play Rule'')); id., at n. 101 
and accompanying text; comment letter from Sanchez, infra, n. 113; 
comment letter from SIFMA, infra, n. 113.
    \21\ See 15 U.S.C. 80b-1 et seq.
    \22\ 17 CFR 275.206(4)-5.
    \23\ 17 CFR 23.451.
    \24\ See Commodity Exchange Act (``CEA''), 7 U.S.C. 1 et seq.
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    Rule G-37 currently applies to dealers in the following respects. 
Rule G-37(b) prohibits dealers from engaging in municipal securities 
business with an issuer within two years after a triggering 
contribution to an official of such issuer is made by: (i) The dealer; 
(ii) any person who is a municipal finance professional (``MFP'') of 
the dealer; or (iii) any political action committee (``PAC'') 
controlled by either the dealer or any MFP of the dealer (the ``ban on 
municipal securities business'').\25\ Under the principal exclusion to 
the ban on municipal securities business, provided in Rule G-37(b), a 
contribution will not trigger a ban on municipal securities business if 
made by an MFP to an official for whom the MFP is entitled to vote, if 
such contribution, together with any other contributions made by the 
MFP to the official, do not exceed $250 per election (a ``de minimis 
contribution''). There is no de minimis exclusion for a contribution to 
an official for whom an MFP is not entitled to vote.
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    \25\ Hereinafter, a contribution that triggers a ban on 
municipal securities business, or, as discussed infra, municipal 
advisory business, or both, is a ``triggering contribution.''
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    Current Rule G-37(c)(i) prohibits dealers and their MFPs from 
soliciting or coordinating contributions to an official of an issuer 
with which the dealer is engaging or seeking to engage in municipal 
securities business. Rule G-37(c)(ii) prohibits dealers and certain of 
their MFPs \26\ from soliciting or coordinating payments to a political 
party of a state or locality where the dealer is engaging or seeking to 
engage in municipal securities business. Rule G-37(d) is an anti-
circumvention provision prohibiting dealers and their MFPs from, 
directly or indirectly, through any person or means, doing any act that 
would result in a violation of section (b) or (c) of the rule. Rule G-
37(e) requires dealers to disclose to the MSRB, for public 
dissemination, certain information related to their contributions and 
their municipal securities business.\27\
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    \26\ MFPs as described in current paragraphs (A) through (C) of 
current Rule G-37(g)(iv) are subject to the prohibition in Rule G-
37(c)(ii). (Paragraph (A) refers to an associated person primarily 
engaged in municipal securities representative activities, paragraph 
(B), to an associated person who solicits municipal securities 
business, and paragraph (C), to an associated person who is both a 
municipal securities principal or sales principal and a supervisor 
of the personnel described in paragraph (A) or (B)).
    \27\ The MSRB makes the information that dealers are required to 
disclose under Rule G-37(e) available to the public for inspection 
on the MSRB's Electronic Municipal Market Access (EMMA[supreg]) Web 
site.
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    Currently, Rule G-37 also applies to certain activities of dealers 
that are now defined as municipal advisory activities under the 
Exchange Act and Exchange Act Rule 15Ba1-1(e).\28\ Specifically, Rule 
G-37 defines as a type of MFP a person ``primarily engaged in municipal 
securities representative activities'' other than sales with natural 
persons.\29\ Such municipal securities representative activities may 
include the provision of ``financial advisory or consultant services 
for issuers in connection with the issuance of municipal securities.'' 
\30\ Most, and perhaps all, of these financial advisory and consultant 
services are also municipal advisory activities under Section 15B(e)(4) 
of the Exchange Act \31\ and the SEC Final Rule. Moreover, currently, 
under Rule G-37, if a ban on municipal securities business is 
triggered, the ban encompasses the dealer's provision of those same 
financial advisory and consultant services. Current Rule G-37 applies 
equally to dealers that are also municipal advisors (``dealer-municipal 
advisors''). However, Rule G-37 does not currently apply in any respect 
to any municipal advisor that is not also a dealer (a ``non-dealer 
municipal advisor.'')
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    \28\ 17 CFR 240.15Ba1-1(e). See generally, 17 CFR 240.15Ba1-1 to 
17 CFR 240.15Ba1-8 and related rules (collectively, ``SEC Final 
Rule'') (providing for the registration of municipal advisors); 
Release No. 34-70462 (September 20, 2013), 78 FR 67467, at 67469 
(November 12, 2013) (File No. S7-45-10) (``Order Adopting SEC Final 
Rule'').
    \29\ See Rule G-37(g)(iv)(A).
    \30\ Rule G-3(a)(i)(A)(2); see Rule G-37(g)(iv) (providing that 
MFP means, under paragraph (A), ``any associated person primarily 
engaged in municipal securities representative activities, as 
defined in rule G-3(a)(i), provided, however, that sales activities 
with natural persons shall not be considered to be municipal 
securities representative activities for purposes of . . . 
subparagraph (A)'').
    \31\ See 15 U.S.C. 78o-4(e)(4).
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Proposed Amendments to Rule G-37
    In summary, the proposed amendments to Rule G-37 would extend the 
core standards under Rule G-37 to municipal advisors by:
     Subject to exceptions, prohibiting a municipal advisor 
from engaging in ``municipal advisory business'' \32\ with a municipal 
entity for two years following the making of a contribution to certain 
officials of the municipal entity by the municipal advisor, a 
``municipal advisor professional'' \33\ (or ``MAP'') of the municipal 
advisor, or a PAC controlled by the municipal advisor or an MAP (a 
``ban on municipal advisory business'');
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    \32\ The term ``municipal advisory business'' is defined in 
proposed Rule G-37(g)(ix) and discussed infra.
    \33\ The proposed definition of ``municipal advisor 
professional'' closely parallels the definition of municipal finance 
professional in current Rule G-37(g)(iv) and proposed Rule G-
37(g)(ii), and is discussed infra.
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     prohibiting municipal advisors and MAPs from soliciting 
contributions, or coordinating contributions, to certain officials of a 
municipal entity with which the municipal advisor is engaging or 
seeking to engage in municipal advisory business;
     requiring a ``nexus'' between a contribution and the 
ability of the official to influence the awarding of business to the 
municipal advisor (or the dealer, municipal advisor or investment 
adviser clients of a defined ``municipal advisor third-party 
solicitor''); \34\
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    \34\ See discussion in ``Municipal Advisor Third-Party 
Solicitors,'' infra. The new term ``municipal advisor third-party 
solicitor'' is defined in proposed Rule G-37(g)(x).
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     prohibiting municipal advisors and certain MAPs from 
soliciting payments, or coordinating payments, to political parties of 
states and localities with which the municipal advisor is engaging in, 
or seeking to engage in, municipal advisory business;
     prohibiting municipal advisors and MAPs from committing 
indirect violations of proposed amended Rule G-37;
     requiring quarterly disclosures to the MSRB of certain 
contributions and related information;
     providing for certain exemptions from a ban on municipal 
advisory business; and
     extending applicable interpretive guidance under Rule G-37 
to municipal advisors.
    In addition, subject to exceptions, the proposed amendments would 
prohibit a dealer or municipal advisor from engaging in municipal 
securities business or municipal advisory business, as applicable, with 
a municipal entity for two years following the making of a contribution 
to certain officials of the municipal entity by a municipal advisor 
third-party solicitor engaged by the dealer or municipal advisor, an 
MAP of such municipal advisor third-party solicitor, or a PAC 
controlled by the municipal advisor third-party solicitor or an MAP of 
the municipal advisor third-party solicitor. The proposed amendments 
would also subject a dealer-municipal advisor to a ``cross-ban'' on 
municipal securities business, municipal advisory business,

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or both municipal securities business and municipal advisory business, 
consistent with the type of business the award of which can be 
influenced by the official to whom the contribution was made.
    The discussion of the proposed rule change begins with the proposed 
amendments to expand the purpose and scope of Rule G-37 as set forth in 
proposed section (a). This is followed by a discussion of the defined 
terms ``municipal advisor third-party solicitor,'' ``municipal 
financial professional'' and ``municipal advisor professional'' \35\ as 
an understanding of these defined terms and the treatment under the 
proposed rule change of persons that fall within these definitions is 
fundamental to understanding the scope and operation of the subsequent 
sections of proposed amended Rule G-37. Thereafter, the proposed 
amendments are discussed in order of the sections of the rule, 
beginning with a discussion of the proposed amendments to section (b), 
regarding bans on business.
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    \35\ See discussion in ``Municipal Finance Professionals and 
Municipal Advisor Professionals,'' infra. The new term ``municipal 
advisor professional'' is defined in proposed Rule G-37(g)(iii).
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Purpose Section
    Currently, Rule G-37(a) describes the purpose and intent of Rule G-
37, which includes the protection of investors and the public interest. 
It further describes the key mechanisms through which the rule aims to 
achieve its purposes: (i) A ban on municipal securities business 
following the making of a triggering contribution to an official of an 
issuer; and (ii) the public disclosure of information regarding 
dealers' political contributions and municipal securities business.
    The proposed amendments would modify section (a) to include 
reference to municipal advisory business and reflect that a ban on 
business and the public disclosure requirements would apply to both 
dealers and municipal advisors. The proposed amendments also would 
expand the scope of the purpose to ensure that the high standards and 
integrity of the ``municipal securities market'' (instead of the 
``municipal securities industry'') are maintained. In addition, in 
section (a) and throughout the rule, the proposed defined term 
``municipal entity'' \36\ would be used in lieu of the term ``issuer,'' 
and, the term ``dealer'' would be defined to include collectively, for 
purposes of the rule, brokers, dealers and municipal securities 
dealers. With these proposed amendments to section (a), the proposed 
rule change makes clear that proposed amended Rule G-37 is intended to 
apply to all dealers and all municipal advisors (collectively 
``regulated entities'').
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    \36\ In proposed Rule G-37(g)(xi), ``municipal entity'' would 
have the meaning specified in Section 15B(e)(8) of the Act (15 
U.S.C. 78o-4(e)(8)), and the rules and regulations thereunder. The 
proposed rule change would use this term in lieu of the more 
narrowly defined term ``issuer'' in light of the Dodd-Frank Act's 
grant of authority to the MSRB to adopt rules with respect to 
municipal advisors and municipal advisory activities for the 
protection of municipal entities. See supra nn. 3-7 and accompanying 
text. Exchange Act Rule 15Ba1-1(g) (17 CFR 240.15Ba1-1(g)) defines 
``municipal entity'' to mean ``any State, political subdivision of a 
State, or municipal corporate instrumentality of a State or of a 
political subdivision of a State, including: (1) Any agency, 
authority, or instrumentality of the State, political subdivision, 
or municipal corporate instrumentality; (2) Any plan, program, or 
pool of assets sponsored or established by the State, political 
subdivision, or municipal corporate instrumentality or any agency, 
authority, or instrumentality thereof; and (3) Any other issuer of 
municipal securities.''
    ``Municipal entity'' includes college savings plans (``529 
plans'') that comply with Section 529 of the Internal Revenue Code 
(26 U.S.C. 529), and certain entities that do not issue municipal 
securities, including various types of state or local government-
sponsored or established plans or pools of assets, such as local 
government investment pools (``LGIPs''), public employee retirement 
systems, public employee benefit plans and public pension plans 
(including participant directed plans and 403(b) and 457 plans). See 
SEC Order Adopting Final Rule, at n. 191 (defining ``public employee 
retirement system,'' ``public employee benefit plan,'' ``403(b) 
plan'' and ``457 plan''); id., at 78 FR at 67480-83 (discussing 
these terms).
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    The proposed amendments to section (a) also would add ``municipal 
entities'' and ``obligated persons'' \37\ as parties that the rule 
would be intended to protect, which reflects the scope of the MSRB's 
broadened statutory charge under the Dodd-Frank Act.\38\ Although, by 
definition, obligated persons are not in that capacity issuers of 
municipal securities, at times officials who are the recipients of 
contributions may have influence in the selection of a dealer, 
municipal advisor or investment adviser in a matter in which an 
obligated person has financial obligations.
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    \37\ ``Obligated person'' is defined in Section 15B(e)(10) of 
the Exchange Act (15 U.S.C. 78o-4(e)(10)) and rules promulgated 
thereunder. See Exchange Act Rule 15Ba1-1(k) (17 CFR 240.15Ba1-
1(k)).
    \38\ See, e.g., 15 U.S.C. 78o-4(b)(2)(C).
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Municipal Advisor Third-Party Solicitors
    Municipal advisors that undertake a solicitation of a municipal 
entity on behalf of a third-party dealer, municipal advisor or 
investment adviser engage in a distinct type of municipal advisory 
business. To extend the policies contained in Rule G-37 to these 
municipal advisors, the proposed amendments to Rule G-37 would add a 
new defined term, ``municipal advisor third-party solicitor'' in 
proposed Rule G-37(g)(x). A municipal advisor third-party solicitor 
would be defined in proposed Rule G-37(g)(x) as a municipal advisor 
that:

Is currently soliciting a municipal entity, is engaged to solicit a 
municipal entity, or is seeking to be engaged to solicit a municipal 
entity for direct or indirect compensation, on behalf of a dealer, 
municipal advisor or investment adviser (as defined in Section 
202(a)(11) of the Investment Advisers Act of 1940) that does not 
control, is not controlled by, or is not under common control with 
the municipal advisor undertaking such solicitation.

The terms ``solicit'' and ``soliciting'' \39\ would be defined in 
proposed Rule G-37(g)(xix) to mean, except for purposes of Rule G-
37(c):
---------------------------------------------------------------------------

    \39\ The proposed definitions of ``solicit'' and ``soliciting'' 
would be consistent with the term ``solicitation of a municipal 
entity or obligated person'' as defined in Section 15B(e)(9) of the 
Exchange Act (15 U.S.C. 78o-4(e)(9)) and the rules and regulations 
thereunder. See, e.g., 17 CFR 240.15Ba1-1(n). In addition, the MSRB 
proposes to move the definition of ``solicit'' from current Rule G-
37(g)(ix) to proposed Rule G-37(g)(xix).

to make, or making, respectively, a direct or indirect communication 
with a municipal entity for the purposes of obtaining or retaining 
an engagement by the municipal entity of a dealer, municipal advisor 
or investment adviser (as defined in Section 202(a)(11) of the 
Investment Advisers Act of 1940) for municipal securities business, 
municipal advisory business or investment advisory services; 
provided, however, that it does not include advertising by a dealer, 
---------------------------------------------------------------------------
municipal advisor or investment adviser.

    The terms ``municipal advisor third-party solicitor,'' ``solicit'' 
and ``soliciting'' would be consistent with the terms ``municipal 
advisor'' \40\ and ``solicitation of a municipal entity or obligated 
person'' \41\ as defined in the Exchange Act and the rules and 
regulations thereunder.\42\ Under the Exchange Act and the SEC Final 
Rule, the terms ``municipal advisor'' and ``solicitation of a municipal 
entity or obligated person'' are to be broadly construed, and are 
reflective of a legislative determination that municipal advisors that 
act as solicitors on behalf of third-party dealers, municipals advisors 
or investment advisers should be regulated as such without regard to 
the extent to which they undertake such

[[Page 81714]]

solicitations.\43\ This includes regulation with regards to ``pay to 
play'' practices.\44\ Indeed, Congress determined to grant rulemaking 
authority over municipal advisors to the MSRB, in part, because it 
already ``has an existing, comprehensive set of rules on key issues 
such as pay-to-play. . . .'' \45\
---------------------------------------------------------------------------

    \40\ See Section 15B(e)(4) of the Exchange Act (15 U.S.C. 78o-
4(e)(4)).
    \41\ See Section 15B(e)(9) of the Exchange Act (15 U.S.C. 78o-
4(e)(9)).
    \42\ See Exchange Act Rules 15Ba1-1(d), (e) and (n) (17 CFR 
240.15Ba1-1(d), (e) and (n)) (defining the terms ``municipal 
advisor,'' ``municipal advisory activities'' and ``solicitation of a 
municipal entity or obligated person,'' respectively).
    \43\ See Order Adopting SEC Final Rule, 78 at 67477 (noting that 
``the statutory definition of municipal advisor is broad and 
includes persons that traditionally have not been considered to be 
municipal financial advisors'' and that the definition includes 
``solicitors'' that engage in municipal advisory activities). See 
also id. at n. 411 and accompanying text (``As discussed in the 
Proposal, a solicitation of a single investment of any amount from a 
municipal entity would require the person soliciting the municipal 
entity to register as a municipal advisor.'').
    \44\ As the Commission has recognized, the regulation of 
municipal advisors and their advisory activities is generally 
intended to address problems observed with the unregulated conduct 
of some municipal advisors, including ``pay to play'' practices. See 
Order Adopting SEC Final Rule, 78 FR at 67469.
    \45\ S. Report 111-176, at 149 (2010) (``Senate Report'').
---------------------------------------------------------------------------

    Thus, a municipal advisor that provides advice to or on behalf of a 
municipal entity or obligated person within the meaning of Section 
15B(e)(4) of the Exchange Act \46\ and the rules and regulations 
thereunder may, depending on its other conduct, also be a municipal 
advisor third-party solicitor within the meaning of proposed Rule G-
37(g)(x). Additionally, a municipal advisor may at one point in time 
also be a municipal advisor third-party solicitor and at another point 
in time may no longer fall within the proposed definition. For example, 
in one engagement, a municipal advisor's role may be limited to that of 
a municipal advisor third-party solicitor and the municipal advisor 
would solicit a municipal entity on behalf of a third-party dealer, 
municipal advisor or investment adviser. Contemporaneously, in a second 
engagement, the municipal advisor may be engaged to provide advice to a 
municipal entity regarding the issuance of municipal securities. 
Because, under the above example, the municipal advisor falls within 
the scope of the municipal advisor third-party solicitor definition in 
connection with at least one solicitation, engagement to solicit or 
attempt to seek an engagement to solicit, for purposes of the proposed 
rule change, the municipal advisor would fall within the definition of 
a municipal advisor third-party solicitor. Under the proposed rule 
change, the engagement of a municipal advisor third-party solicitor 
would have special implications for a dealer or municipal advisor 
(either a dealer or municipal advisor, a ``regulated entity'') that 
engages a municipal advisor third-party solicitor (``dealer client'' or 
``municipal advisor client,'' respectively) to solicit a municipal 
entity on its behalf.\47\
---------------------------------------------------------------------------

    \46\ 15 U.S.C. 78o-4(e)(4).
    \47\ Hereinafter, a ``dealer client'' or a ``municipal advisor 
client'' may also be referred to as a ``regulated entity client.''
---------------------------------------------------------------------------

Municipal Finance Professionals and Municipal Advisor Professionals
    Under current Rule G-37, a contribution by a person who is a 
municipal finance professional, or MFP, of a dealer may trigger a ban 
on municipal securities business as to the dealer in certain cases. The 
proposed amendments would incorporate minor non-substantive amendments 
to the term MFP, and define as a ``municipal advisor professional,'' or 
MAP, certain persons who are employed or otherwise affiliated with a 
municipal advisor. Similarly to an MFP, if an MAP makes a contribution, 
under the proposed amendments the action may trigger a ban on municipal 
advisory business as to the municipal advisor in certain cases.
    Municipal Finance Professional. An associated person of a dealer is 
a ``municipal finance professional'' if he or she engages in the 
functions described in paragraphs (A) through (E) of current Rule G-
37(g)(iv). In addition, if designated by a dealer as an MFP in the 
dealer's records, an associated person is deemed an MFP and retains the 
designation for one year after the last activity or position that gave 
rise to the designation.\48\
---------------------------------------------------------------------------

    \48\ See Rule G-8(a)(xvi) (Records Concerning Political 
Contributions and Prohibitions on Municipal Securities Business 
Pursuant to Rule G-37).
---------------------------------------------------------------------------

    The MSRB proposes to more specifically identify the persons engaged 
in the functions described in current paragraphs (A) through (E) of 
Rule G-37(g)(iv), and to relocate the defined term, municipal finance 
professional, from subsection (g)(iv) to proposed subsection (g)(ii) of 
the rule. A person described in current Rule G-37(g)(iv)(A) would be a 
``municipal finance representative'' in proposed Rule G-37(g)(ii)(A); a 
person described in current Rule G-37(g)(iv)(B) would be a ``dealer 
solicitor'' in proposed Rule G-37(g)(ii)(B); a person described in 
current Rule G-37(g)(iv)(C) would be a ``municipal finance principal'' 
in proposed Rule G-37(g)(ii)(C); a person described in current Rule G-
37(g)(iv)(D) would be a ``dealer supervisory chain person'' in proposed 
Rule G-37(g)(ii)(D); and a person described in current Rule G-
37(g)(iv)(E) would be a ``dealer executive officer'' in proposed Rule 
G-37(g)(ii)(E). Additionally, proposed Rule G-37(g)(ii)(B), describing 
``dealer solicitors'' (i.e., associated persons of dealers who solicit 
municipal securities business), would describe this category of MFP by 
cross-referencing an additional proposed defined term, ``municipal 
solicitor,'' \49\ and would delete as superfluous the parenthetical 
reference to Rule G-38, on solicitation of municipal securities 
business. The proposed rule change would use the proposed descriptive 
defined terms, in both the definition of ``municipal finance 
professional'' and throughout the rule text.
---------------------------------------------------------------------------

    \49\ In proposed Rule G-37(g)(xiii), ``municipal solicitor,'' 
would mean: (A) An associated person of a dealer who solicits a 
municipal entity for municipal securities business on behalf of the 
dealer; (B) an associated person of a municipal advisor who solicits 
a municipal entity for municipal advisory business on behalf of the 
municipal advisor; or (C) an associated person of a municipal 
advisor third-party solicitor who solicits a municipal entity on 
behalf of a dealer, municipal advisor or investment adviser (as 
defined in Section 202(a)(11) of the Investment Advisers Act of 
1940) that does not control, is not controlled by, or is not under 
common control with such municipal advisor third-party solicitor.
---------------------------------------------------------------------------

    The MSRB also proposes additional minor technical amendments to the 
definition of MFP to improve its readability. In paragraph (A), 
defining the term, ``municipal finance representative,'' the MSRB 
proposes to substitute the words ``other than'' in place of the more 
lengthy proviso in the current definition. In paragraph (E), defining 
the term ``dealer executive officer,'' the MSRB proposes to: (i) 
Relocate the parenthetical pertaining to bank dealers within the 
definition; and (ii) reorganize the clause that provides that a dealer 
shall be deemed to have no MFPs if the only associated persons meeting 
the MFP definition are those described in paragraph (E) (of current 
Rule G-37(g)(iv) or proposed Rule G-37(g)(ii)). Also, the MSRB proposes 
minor, non-substantive amendments to shorten the final paragraph of the 
definition of municipal finance professional, which provides that a 
person designated by the dealer as an MFP in the dealer's records under 
Rule G-8(a)(xvi) would be deemed to be an MFP and would retain the 
designation for one year after the last activity or position which gave 
rise to the designation. The amendments to the defined term are not 
intended to, and would not be interpreted to, substantively modify the 
scope of the current definition of municipal finance professional, 
except to the extent the defined term ``municipal solicitor'' used 
within the ``dealer solicitor'' definition applies to the solicitation 
of a

[[Page 81715]]

``municipal entity,'' rather than an ``issuer.''
    Municipal Advisor Professionals. The associated persons of a 
municipal advisor that would be subject to the rule would be defined as 
``municipal advisor professionals'' in proposed Rule G-37(g)(iii). 
``Municipal advisor professional'' would be analogous to the amended 
defined term, ``municipal finance professional.'' As in the definition 
of ``municipal finance professional,'' proposed Rule G-37(g)(iii) 
identifies five types of MAPs, in proposed paragraphs (A) through (E), 
respectively, as: ``municipal advisor representative,'' ``municipal 
advisor solicitor,'' ``municipal advisor principal,'' ``municipal 
advisor supervisory chain person,'' and ``municipal advisor executive 
officer.''
    Under proposed Rule G-37(g)(iii), an MAP would be any associated 
person of a municipal advisor engaged in the following activities:
    (A) Any ``municipal advisor representative''--any associated person 
engaged in municipal advisor representative activities, as defined in 
Rule G-3(d)(i)(A); \50\
---------------------------------------------------------------------------

    \50\ Rule G-3(d)(i)(A), defines a ``municipal advisor 
representative'' as ``a natural person associated with a municipal 
advisor who engages in municipal advisory activities on the 
municipal advisor's behalf, other than a person performing only 
clerical, administrative, support or similar functions.''
---------------------------------------------------------------------------

    (B) any ``municipal advisor solicitor''--any associated person who 
is a municipal solicitor (as defined in paragraph (g)(xiii)(B) of this 
rule) (or in the case of an associated person of a municipal advisor 
third-party solicitor, paragraph (g)(xiii)(C) of this rule);
    (C) any ``municipal advisor principal''--any associated person who 
is both: (1) A municipal advisor principal (as defined in Rule G-
3(e)(i)); \51\ and (2) a supervisor of any municipal advisor 
representative (as defined in paragraph (g)(iii)(A) of this rule) or 
municipal advisor solicitor (as defined in paragraph (g)(iii)(B) of 
this rule);
---------------------------------------------------------------------------

    \51\ Rule G-3(e)(i) defines the term ``municipal advisor 
principal'' to mean ``a natural person associated with a municipal 
advisor who is qualified as a municipal advisor representative and 
is directly engaged in the management, direction or supervision of 
the municipal advisory activities of the municipal advisor and its 
associated persons.'' See Order Approving MA Qualification 
Requirements. The term ``municipal advisory activities'' (which is 
used within the ``municipal advisor principal'' definition) is 
defined in Rule D-13 to mean, except as otherwise specifically 
provided by rule of the Board, ``the activities described in Section 
15B(e)(4)(A)(i) and (ii) of the Act and the rules and regulations 
promulgated thereunder.''
---------------------------------------------------------------------------

    (D) any ``municipal advisor supervisory chain person''--any 
associated person who is a supervisor of any municipal advisor 
principal up through and including, in the case of a municipal advisor 
other than a bank municipal advisor, the Chief Executive Officer or 
similarly situated official, and, in the case of a bank municipal 
advisor, the officer or officers designated by the board of directors 
of the bank as responsible for the day-to-day conduct of the bank's 
municipal advisory activities, as required by 17 CFR 240.15Ba1-
1(d)(4)(i); or
    (E) any ``municipal advisor executive officer''--any associated 
person who is a member of the executive or management committee (or 
similarly situated official) of a municipal advisor (or, in the case of 
a bank municipal advisor, the separately identifiable department or 
division of the bank as defined in Section 15B(e)(4) of the Act and 17 
CFR 240.15Ba1-1(d)(4)(i) thereunder); provided, however, that if the 
persons described in this paragraph are the only associated persons of 
the municipal advisor meeting the definition of municipal advisor 
professional, the municipal advisor shall be deemed to have no 
municipal advisor professionals.
    As in the definition of MFP, proposed Rule G-37(g)(iii) defining 
MAP would provide that a person designated by a municipal advisor as an 
MAP in the municipal advisor's records would be deemed an MAP and would 
retain the designation for one year after the last activity or position 
which gave rise to the designation.
    The chart below illustrates the similarities between the defined 
term, ``municipal finance professional,'' as revised by the proposed 
amendments, and the new proposed defined term, ``municipal advisor 
professional.''

------------------------------------------------------------------------
                                            Types of municipal advisor
Types of municipal finance professional            professional
------------------------------------------------------------------------
``municipal finance representative''...  ``municipal advisor
                                          representative.''
``dealer solicitor''...................  ``municipal advisor
                                          solicitor.''
``municipal finance principal''........  ``municipal advisor
                                          principal.''
``dealer supervisory chain person''....  ``municipal advisor supervisory
                                          chain person.''
``dealer executive officer''...........  ``municipal advisor executive
                                          officer.''
------------------------------------------------------------------------

Ban on Business
    Currently, Rule G-37(b) sets forth a ban on municipal securities 
business that might have otherwise been awarded as a quid pro quo for a 
contribution, or at least as to which the appearance of a quid pro quo 
might have arisen. It prohibits a dealer from engaging in municipal 
securities business with an issuer within two years after a triggering 
contribution is made to an issuer official by the dealer, an MFP of the 
dealer or a PAC controlled by either the dealer or an MFP of the 
dealer. Proposed Rule G-37(b)(i)(A) would retain this ban on municipal 
securities business for dealers. Proposed Rule G-37(b)(i)(B) would 
create an analogous two-year ban on municipal advisory business 
applicable to municipal advisors that are not, at the time of the 
triggering contribution, municipal advisor third-party solicitors. 
Proposed Rule G-37(b)(i)(C)(1) would create, for municipal advisor 
third-party solicitors, a two-year ban on municipal advisory business 
analogous to the ban in proposed Rule G-37(b)(i)(B).
    Under the proposed amendments, as discussed infra,\52\ whether a 
contribution would trigger a ban on municipal securities business, a 
ban on municipal advisory business, or a ban on both types of business 
(any such ban, a ``ban on applicable business'') for a dealer, 
municipal advisor or dealer-municipal advisor generally would depend on 
the identity of the person who made the contribution, the type of 
influence that can be exercised by the official to whom the 
contribution was made and whether an exclusion from the ban would 
apply.
---------------------------------------------------------------------------

    \52\ See discussion in ``Persons from Whom Contributions Could 
Trigger a Ban on Business,'' ``Official of a Municipal Entity,'' 
``Ban on Business for Dealers; Ban on Business for Municipal 
Advisors,'' ``Ban on Business for Dealer-Municipal Advisors'' and 
``Excluded Contributions,'' infra.
---------------------------------------------------------------------------

Persons From Whom Contributions Could Trigger a Ban on Business
    Dealers. Under current Rule G-37(b)(i), contributions by three 
types of contributors--a dealer,\53\ an MFP of the dealer \54\ or a PAC 
controlled by either the dealer or an MFP of the dealer \55\--

[[Page 81716]]

may trigger a ban on municipal securities business for the dealer. The 
proposed amendments to Rule G-37 would provide that this same set of 
persons may trigger a ban on business for the dealer, and would 
renumber this provision as proposed subsection (b)(i)(A).
---------------------------------------------------------------------------

    \53\ See Rule G-37(b)(i)(A).
    \54\ See Rule G-37(b)(i)(B).
    \55\ See Rule G-37(b)(i)(C).
---------------------------------------------------------------------------

    Municipal Advisors that are not Municipal Advisor Third-Party 
Solicitors. Proposed Rule G-37(b)(i)(B) would set forth, for municipal 
advisors that are not municipal advisor third-party solicitors at the 
time of a contribution, a provision that parallels proposed Rule G-
37(b)(i)(A) for dealers. Under proposed Rule G-37(b)(i)(B), 
contributions by three types of contributors--a municipal advisor, an 
MAP of the municipal advisor or a PAC controlled by either the 
municipal advisor or an MAP of the municipal advisor--may trigger a ban 
on municipal advisory business for the municipal advisor.
    Municipal Advisor Third-Party Solicitors. Proposed Rule G-
37(b)(i)(C)(1) would set forth, for municipal advisor third-party 
solicitors, a provision that parallels proposed Rule G-37(b)(i)(A) for 
dealers and proposed Rule G-37(b)(i)(B) for municipal advisors that are 
not municipal advisor third-party solicitors. Under proposed Rule G-
37(b)(i)(C)(1), contributions by three types of contributors--the 
municipal advisor third-party solicitor, an MAP of the municipal 
advisor third-party solicitor or a PAC controlled by either the 
municipal advisor third-party solicitor or an MAP of the municipal 
advisor third-party solicitor--may trigger a ban on municipal advisory 
business for the municipal advisor third-party solicitor.
    Clients of a Municipal Advisor Third-Party Solicitor that are 
Dealers or Municipal Advisors. Under proposed Rule G-37(b)(i)(C)(2), 
the engagement of a municipal advisor third-party solicitor would have 
special implications for a dealer client or municipal advisor client. 
If a dealer or municipal advisor engages a municipal advisor third-
party solicitor to solicit a municipal entity on its behalf, three 
additional types of contributors may trigger a ban on municipal 
securities business as to a dealer client, or a ban on municipal 
advisory business as to a municipal advisor client. Clause 
(b)(i)(C)(2)(a) would apply to dealer clients of a municipal advisor 
third-party solicitor \56\ and clause (b)(i)(C)(2)(b) would apply to 
municipal advisor clients (including municipal advisor third-party 
solicitor clients) of a municipal advisor third-party solicitor.\57\ 
Under each of the proposed provisions, the additional types of 
contributors that may trigger a ban for the regulated entity are the 
same. They are: The engaged municipal advisor third-party solicitor; an 
MAP of the engaged municipal advisor third-party solicitor; and a PAC 
controlled by either the engaged municipal advisor third-party 
solicitor or an MAP of the engaged municipal advisor third-party 
solicitor. The MSRB believes the risk of actual or apparent quid pro 
quo corruption is obvious and substantial when a municipal advisor 
third-party solicitor who is engaged to solicit a municipal entity for 
business on behalf of a regulated entity client makes a triggering 
contribution to an official of that municipal entity with the ability 
to influence the awarding of business to the municipal advisor third-
party solicitor's client. For such instances, clauses (b)(i)(C)(2)(a) 
and (b) are designed to curb actual and apparent quid pro quo 
corruption involving the regulated entity client and the official to 
whom the contribution is made and to prevent such a regulated entity 
client from obtaining the benefit of any actual quid pro quo 
corruption.
---------------------------------------------------------------------------

    \56\ Currently, a dealer is generally prohibited under Rule G-38 
from making payments to a third-party solicitor to solicit municipal 
securities business on behalf of the dealer. However, proposed Rule 
G-37(b)(i)(C)(2)(a) would apply in the limited cases where payments 
to a third-party solicitor are permitted under Rule G-38 as well as 
in cases where a dealer engaged a municipal advisor third-party 
solicitor in violation of Rule G-38.
    \57\ Although municipal advisors that are not dealers are not 
subject to Rule G-38, municipal advisors that are not municipal 
advisor third-party solicitors would be subject to proposed Rule G-
42, if approved by the Commission. In relevant part, proposed Rule 
G-42 provides that non-solicitor municipal advisors are prohibited 
from making payments for the purpose of obtaining or retaining an 
engagement to perform municipal advisory activities subject to 
limited exceptions, which include reasonable fees paid to another 
municipal advisor registered as such with the Commission and the 
Board for making such a direct or indirect communication with a 
municipal entity or obligated person on behalf of the municipal 
advisor where such communication is made for the purpose of 
obtaining or retaining an engagement to perform municipal advisory 
activities. See Proposed Rule G-42 Filing.
---------------------------------------------------------------------------

    The determination of whether a municipal advisor was engaged as a 
municipal advisor third-party solicitor by a regulated entity client 
would be determined based on the facts and circumstances.\58\ The MSRB 
would not consider the absence of a writing evidencing the 
relationship, or the absence of particular terms in a writing 
evidencing the relationship, to preclude a finding that a municipal 
advisor third-party solicitor was engaged by a regulated entity to 
solicit a municipal entity on its behalf within the meaning of proposed 
Rule G-37(b)(i).\59\
---------------------------------------------------------------------------

    \58\ For example, if the facts and circumstances suggest that 
On-Site MA, a municipal advisor third-party solicitor, and Best 
Dealer, a dealer, orally agreed that On-Site MA would solicit 
Municipal Entity to retain Best Dealer to underwrite municipal 
securities for Municipal Entity, On-Site MA would be deemed to have 
been engaged as a municipal advisor third-party solicitor on behalf 
of Best Dealer with respect to Municipal Entity, even in the absence 
of a written engagement letter. Similarly, if there was a written 
engagement letter between On-Site MA and Best Dealer that was 
limited to soliciting municipal securities business in a major 
metropolitan city located in a tri-state area, but the facts and 
circumstances show that Best Dealer actually agreed to engage On-
Site MA to solicit municipal securities business from any and all 
municipal entities in the metropolitan tri-state area, On-Site MA 
would be deemed to have been engaged as a municipal advisor third-
party solicitor on behalf of Best Dealer with respect to the entire 
metropolitan tri-state area.
    \59\ But see discussion in ``Persons from Whom Contributions 
Could Trigger a Ban on Business--Municipal Advisor Third-Party 
Solicitors,'' supra, and ``Municipal Securities Business and 
Municipal Advisory Business,'' infra. Under proposed Rule G-
37(b)(i)(C)(1), to impose a ban on municipal advisory business for a 
municipal advisor third-party solicitor, the municipal advisor 
third-party solicitor does not need to be specifically engaged, at 
the time of the contribution, to solicit the type of work over which 
the official to whom the contribution is made has selection 
influence. Because a municipal advisor third-party solicitor, by 
definition, may solicit for several different types of business 
(i.e., municipal securities business, municipal advisory business 
and investment advisory services), a contribution to any official 
with the ability to influence the awarding of business to the 
solicitor's current or prospective dealer, municipal advisor or 
investment adviser clients could trigger a ban for the municipal 
advisor third-party solicitor since there is at least an appearance 
of quid pro quo corruption when it makes a contribution to such an 
official. See infra, n. 62.
---------------------------------------------------------------------------

    Investment Adviser Clients of a Municipal Advisor Third-Party 
Solicitor. Because Rule G-37 does not apply to investment advisers in 
their capacity as such, if an investment adviser engages a municipal 
advisor third-party solicitor to solicit on its behalf for an 
engagement to provide investment advisory services, the actions of the 
municipal advisor third-party solicitor would not trigger a ban on 
business for the investment adviser.\60\
---------------------------------------------------------------------------

    \60\ However, investment advisers are subject to the 
requirements and prohibitions provided in the IA Pay to Play Rule. 
17 CFR 275.206(4)-5; see generally, Order Adopting IA Pay to Play 
Rule.
---------------------------------------------------------------------------

Official of a Municipal Entity
    Under current Rule G-37, for any contribution to trigger a ban on 
applicable business, an additional element--selection influence--must 
be present. A contribution by a dealer, MFP or PAC controlled by either 
the dealer or an MFP of the dealer can only trigger a ban on municipal 
securities business for the dealer if the official to whom the 
contribution was made is an ``official of an issuer.'' As discussed

[[Page 81717]]

infra, an ``official of an issuer'' must, in relevant part, have the 
ability to influence ``the hiring of a broker, dealer or municipal 
securities dealer for municipal securities business by an issuer.'' 
\61\ Proposed amended Rule G-37 would, as explained below, extend this 
selection influence element to municipal advisors (and the dealer, 
municipal advisor and investment adviser clients of municipal advisor 
third-party solicitors), requiring a nexus between the influence that 
can be exercised by the ``official of a municipal entity'' (``ME 
official'') who receives a potentially ban-triggering contribution and 
the type of business in which the regulated entity is engaged or is 
seeking to engage.\62\
---------------------------------------------------------------------------

    \61\ See Rule G-37(g)(vi).
    \62\ Dealers and municipal advisors that are not municipal 
advisor third-party solicitors are typically compensated by the 
municipal entity or obligated person to whom they are providing 
advice or municipal securities business. Thus, when a quid pro quo 
contribution is made by a dealer or such a municipal advisor, the 
quid is the contribution and the quo is the awarding of business to 
the dealer or municipal advisor in exchange for the contribution. 
However, municipal advisor third-party solicitors (in their capacity 
as such) are typically compensated not by the municipal entity or 
obligated person they solicit, but by a third-party dealer, 
municipal advisor or investment adviser for whom they are attempting 
to secure municipal securities business, municipal advisory business 
or engagements to provide investment advisory services. When a quid 
pro quo contribution is made by a municipal advisor third-party 
solicitor, the quid is the contribution and the quo is typically the 
awarding of business to the current or prospective clients of the 
municipal advisor third-party solicitor. Of course, the quo for a 
municipal advisor third-party solicitor (a type of municipal 
advisor) could also be the awarding of municipal advisory business 
to the municipal advisor itself, as a municipal advisor third-party 
solicitor may simultaneously undertake a solicitation of a municipal 
entity or obligated person and provide, or seek to provide, to 
another municipal entity or obligated person certain advice. Thus, 
for municipal advisor third-party solicitors, the appearance of quid 
pro quo corruption may arise with respect to a wider range of 
contributions, as compared to dealers and municipal advisors that 
are not municipal advisor third-party solicitors. Because municipal 
advisor third-party solicitors are in the business of attempting to 
secure business for third-party dealers, municipal advisors and 
investment advisers, the fact that a municipal advisor third-party 
solicitor is not, at the time of a contribution, actually engaged to 
solicit a municipal entity for a particular type of business does 
not avoid the appearance of quid pro quo corruption. As discussed 
supra, a municipal advisor third-party solicitor is a municipal 
advisor that, in relevant part, is currently soliciting, is engaged 
to solicit, or is seeking to be engaged to solicit a municipal 
entity for business on behalf of a third-party dealer, municipal 
advisor or investment adviser. Thus, a municipal advisor third-party 
solicitor will always stand to gain from a quid pro quo contribution 
as such a contribution may assist the municipal advisor third-party 
solicitor in obtaining new business from a prospective dealer, 
municipal advisor or investment adviser client seeking to curry 
favor with the ME official to whom the municipal advisor third-party 
solicitor made the contribution.
---------------------------------------------------------------------------

    The term ``official of a municipal entity'' would be substituted 
for the current term ``official of an issuer'' in Rule G-37. The 
definition of ``official of an issuer'' (or ``official of such 
issuer'') in current Rule G-37(g)(vi) includes any person who, at the 
time of the contribution, was an incumbent, candidate or successful 
candidate: (A) For elective office of the issuer which office is 
directly or indirectly responsible for, or can influence the outcome 
of, the hiring of a dealer for municipal securities business by the 
issuer; or (B) for any elective office of a state or of any political 
subdivision, which office has authority to appoint any person who is 
directly or indirectly responsible for, or can influence the outcome 
of, the hiring of a dealer for municipal securities business by an 
issuer.
    The proposed amendments would delete the term ``official of an 
issuer'' from Rule G-37(g)(vi) and substitute the term ``official of a 
municipal entity'' as set forth in proposed Rule G-37(g)(xvi). To take 
into account the possibility that an ME official may have the ability 
to influence the hiring of a dealer, municipal advisor or investment 
adviser, or the hiring of two or more of such professionals, three 
categories of ME officials would be identified in proposed Rule G-
37(g)(xvi): An official of a municipal entity with dealer selection 
influence, as described in proposed paragraph (A), an official of a 
municipal entity with municipal advisor selection influence, as 
described in proposed paragraph (B), and an official of a municipal 
entity with investment adviser selection influence, as described in 
proposed paragraph (C).
    The term ``official of a municipal entity with dealer selection 
influence'' would be substantively similar to the ``official of an 
issuer'' definition in current Rule G-37(g)(vi), with the exception of 
the substitution of the term ``municipal entity'' in place of the term 
``issuer.'' \63\ However, because the term ``municipal entity'' used in 
the ``official of a municipal entity with dealer selection influence'' 
definition includes entities beyond those defined as ``issuers,'' the 
official of a municipal entity with dealer selection influence 
definition is more expansive than the ``official of an issuer'' 
definition it replaces.\64\ The term ``official of a municipal entity 
with municipal advisor selection influence'' would be analogous to the 
``official of a municipal entity with dealer selection influence'' 
definition. In connection with municipal advisor third-party solicitors 
that solicit on behalf of an investment adviser, the term ``official of 
a municipal entity with investment adviser selection influence'' would 
be analogous to the ``official of a municipal entity with dealer 
selection influence'' definition for dealers (and municipal advisor 
third-party solicitors on behalf of a dealer) and the ``official of a 
municipal entity with municipal advisor selection influence'' 
definition for all municipal advisors. The proposed definition's 
structure, which includes the three categories of ME officials, 
provides the flexibility to establish, in the case of a contribution to 
an ME official, whether there is the required nexus between the ME 
official who received the contribution (based upon his or her scope of 
influence) and the awarding of business that gives rise to a sufficient 
risk of quid pro quo corruption or the appearance of such corruption to 
warrant a two-year ban.
---------------------------------------------------------------------------

    \63\ In addition, the proposed definition of ``official of a 
municipal entity with dealer selection influence'' would include 
minor technical amendments to the current definition of ``official 
of an issuer'' to improve its readability.
    \64\ For example, the term ``municipal entity'' includes certain 
entities that do not issue municipal securities, including various 
types of state or local government-sponsored or established plans or 
pools of assets, such as LGIPs, public employee retirement systems, 
public employee benefit plans and public pension plans (including 
participant directed plans and 403(b) and 457 plans). See supra, n. 
36.
---------------------------------------------------------------------------

Municipal Securities Business and Municipal Advisory Business
    Currently, under Rule G-37, a dealer subject to a ban is generally 
prohibited from engaging in ``municipal securities business'' with the 
relevant issuer. ``Municipal securities business'' is currently defined 
in Rule G-37(g)(vii) as the purchase of a primary offering on other 
than a competitive bid basis, the offer or sale of a primary offering 
of municipal securities, providing financial advisory or consultant 
services to or on behalf of an issuer with respect to a primary 
offering on other than a competitive bid basis, and providing 
remarketing agent services with respect to a primary offering on other 
than a competitive bid basis. Under interpretive guidance issued in 
1997 (the ``1997 Guidance''), the municipal securities business from 
which a dealer subject to a ban is prohibited from engaging in is 
``new'' municipal securities business. The MSRB has interpreted ``new'' 
municipal securities business as contractual obligations with an issuer 
entered into after the date of the triggering contribution to an 
official of the issuer and contractual obligations that were entered 
into prior to the date of the triggering contribution but which

[[Page 81718]]

are not specific to a particular issue of a security.\65\ The latter 
category that is subject to the ban is referred to as ``pre-existing 
but non-issue specific contractual undertakings.'' \66\ In contrast, 
pre-existing issue-specific contractual undertakings are generally not 
deemed ``new'' municipal securities business, and are not subject to 
the ban.\67\ Interpretive guidance issued in 2002 (the ``2002 
Guidance'') modified the 1997 Guidance in a limited respect to expand 
the scope of municipal securities business that is not ``new'' for 
dealers that serve as primary distributors of municipal fund 
securities, in light of the unique aspects of municipal fund securities 
programs and the role that primary distributors play with respect to 
such programs.
---------------------------------------------------------------------------

    \65\ See 1997 Guidance.
    \66\ See id. Pre-existing but non-issue-specific contractual 
undertakings are subject to the ban on municipal securities 
business, subject to an orderly transition to another entity that is 
not subject to a ban to perform such business. Id.
    \67\ See id. For example, if a bond purchase agreement was 
signed prior to the date of a contribution triggering a ban on 
municipal securities business, a dealer may continue to perform its 
services as an underwriter on the issue. Significantly, however, new 
or different services provided under provisions in existing issue-
specific contracts that allow for changes in the services provided 
by the dealer or the compensation paid by the issuer are deemed new 
municipal securities business. Id. Thus, Rule G-37 precludes a 
dealer subject to a ban from performing such additional functions or 
receiving additional compensation.
---------------------------------------------------------------------------

    Under the proposed rule change, the definition of municipal 
securities business would not be amended, except to renumber the 
definition as proposed subsection (g)(xii) and incorporate conforming 
changes. Additionally, the 1997 Guidance and the 2002 Guidance would 
remain unchanged for dealers.
    Under proposed Rule G-37(b)(i)(B) and proposed Rule G-
37(b)(i)(C)(1), a municipal advisor (including a municipal advisor 
third-party solicitor) subject to a ban would generally be prohibited 
from engaging in ``municipal advisory business'' with the relevant 
municipal entity. Proposed Rule G-37(g)(ix) would define ``municipal 
advisory business'' to mean those activities that would cause a person 
to be a municipal advisor as defined in Section 15B(e)(4) of the Act, 
17 CFR 240.15Ba1-1(d)(1)-(4) and other rules and regulations 
thereunder.\68\
---------------------------------------------------------------------------

    \68\ See proposed Rule G-37(g)(ix).
---------------------------------------------------------------------------

    Notably, if a municipal advisor third-party solicitor is subject to 
a ban under proposed Rule G-37(b)(i)(C), it would be prohibited from 
engaging in all types of municipal advisory business with the relevant 
municipal entity, including providing certain advice to the municipal 
entity and soliciting the municipal entity on behalf of any third-party 
dealer, municipal advisor or investment adviser.
    For municipal advisors, the MSRB intends that all existing 
interpretive guidance regarding the municipal securities business of 
dealers under Rule G-37 would apply to the analogous interpretive 
issues regarding the municipal advisory business of municipal advisors. 
However, because the ``new'' versus non-``new'' business distinction in 
the 1997 Guidance only applies to pre-existing issue-specific 
contractual obligations with an issuer, such guidance would not apply 
to municipal advisor third-party solicitors as their contractual 
obligations are not owed to an issuer but to third parties that are 
regulated entity clients or investment adviser clients. Further, the 
2002 Guidance would not be extended to any municipal advisors to 
municipal fund securities programs because the 2002 Guidance addressed 
a non-analogous interpretive issue for dealers.\69\ Multiple factors 
supported the 2002 Guidance regarding primary distributors of municipal 
fund securities, but the essential factor was the magnitude of the 
possible repercussions to an issuer of municipal fund securities or 
investors in municipal fund securities resulting from a sudden change 
in the primary distributor. For example, issuers would typically not be 
faced with redesigning existing programs in light of the exit of a 
municipal advisor to such a plan. Further, the MSRB believes that the 
exit of a municipal advisor would typically have little or no direct 
impact on investors, and would not force investors to restructure or 
establish new relationships with different dealers in order to maintain 
their investments. The Board does not believe that the disruption of 
services provided by a municipal advisor to a municipal fund securities 
plan would result in repercussions of comparable scope or severity to 
issuers and investors.
---------------------------------------------------------------------------

    \69\ Because the 1997 Guidance would not apply to municipal 
advisor third-party solicitors, the 2002 Guidance (which modifies 
the 1997 Guidance) would also have no application to municipal 
advisor third-party solicitors. Thus, municipal advisor third-party 
solicitors on behalf of third-party dealers, municipal advisors and 
investment advisers would be prohibited, based on a triggering 
contribution, from continuing to perform under any pre-existing 
contract to solicit the relevant municipal entity (whether an issuer 
of municipal fund securities or any other type of municipal entity).
---------------------------------------------------------------------------

Ban on Business for Dealers; Ban on Business for Municipal Advisors
    Under the proposed rule change, a dealer or municipal advisor that 
is not a municipal advisor third-party solicitor could be subject to a 
ban on applicable business only when a triggering contribution is made 
to an ME official who can influence the awarding of the type of 
business in which that regulated entity engages.
    A dealer that engages in municipal securities business, but not 
municipal advisory business, would be subject to a ban on municipal 
securities business only when a triggering contribution is made by any 
of the persons described in proposed Rule G-37(b)(i)(A) or proposed 
Rule G-37(b)(i)(C)(2) to an official of a municipal entity with dealer 
selection influence, as described in proposed Rule G-37(g)(xvi)(A). 
(Although the ME official may also have influence as described in 
proposed Rule G-37(g)(xvi)(B) and (C), regarding the selection of 
municipal advisors and investment advisers, the broader scope of 
influence would be irrelevant in determining whether a dealer would be 
subject to a ban on municipal securities business.) \70\ Conversely, a 
contribution made by any of the persons described in proposed Rule G-
37(b)(i)(A) or proposed Rule G-37(b)(i)(C)(2) to an ME official that 
does not have dealer selection influence (such as an official with only 
municipal advisor selection influence, or only municipal advisor and 
investment adviser selection influence) would not trigger a ban for the 
dealer.
---------------------------------------------------------------------------

    \70\ The following example illustrates the impact of a 
triggering contribution made by an MAP of a municipal advisor third-
party solicitor when the municipal advisor third-party solicitor was 
engaged by a dealer client as set forth in proposed Rule G-
37(b)(i)(C)(2).
    Best Dealer is a dealer located in a Midwestern state. On-Site 
MA is a municipal advisor third-party solicitor located in a western 
coastal state, State A. Best Dealer engages On-Site MA to solicit 
three major municipal entities in State A to hire Best Dealer to 
underwrite municipal bonds, including North City and South City of 
State A. Dan is an employee and an MAP of On-Site MA. Dan resides in 
North City. Dan makes a contribution of $240 to an ME official of 
South City, for whom Dan is not entitled to vote. The ME official 
exercises influence in the selection of dealers, municipal advisors 
and investment advisers for South City matters. As a result of Dan's 
$240 contribution to the ME official, Best Dealer, the dealer client 
of On-Site MA, becomes subject to a ban on engaging in municipal 
securities business with South City, because Dan's contribution is a 
triggering contribution and Best Dealer engaged On-Site MA to 
solicit South City on behalf of Best Dealer. In addition, as 
discussed infra, On-Site MA would also become subject to a ban on 
engaging in municipal advisory business with South City.
    Although the ME official exercises influence in the selection of 
municipal advisors and investment advisers, because Best Dealer does 
not engage in municipal advisory business, a ban on applicable 
business would subject Best Dealer only to a ban on municipal 
securities business.
---------------------------------------------------------------------------

    Similarly, a non-dealer municipal advisor that is not a municipal 
advisor

[[Page 81719]]

third-party solicitor would be subject to a ban on municipal advisory 
business only when a triggering contribution is made by any of the 
persons described in proposed Rule G-37(b)(i)(B) or proposed Rule G-
37(b)(i)(C)(2) to an ME official that is at least an official of a 
municipal entity with municipal advisor selection influence.\71\
---------------------------------------------------------------------------

    \71\ The following example illustrates the impact of a 
triggering contribution made by an MAP of a municipal advisor third-
party solicitor when engaged by a municipal advisor client that is 
not a municipal advisor third-party solicitor as set forth in 
proposed Rule G-37(b)(i)(C)(2).
    Best MA is a municipal advisor located in a Midwestern state, 
and is not a municipal advisor third-party solicitor. On-Site MA is 
a municipal advisor third-party solicitor located in a western 
coastal state, State A. Best MA engages On-Site MA to solicit the 
city school districts of three major municipalities in State A to 
hire Best MA to provide municipal advisory services for such school 
districts, including North City School District and South City 
School District. Dan is an employee and an MAP of On-Site MA. Dan 
resides in North City. Dan makes a contribution of $240 to an 
official running for re-election to the school board of South City 
School District. Dan is not entitled to vote for the candidate. The 
ME official exercises influence in the selection of dealers, 
municipal advisors and investment advisers for South City School 
District matters. As a result of Dan's $240 contribution to the ME 
official, Best MA, the client of On-Site MA, becomes subject to a 
ban on engaging in municipal advisory business with South City 
School District, because Dan's contribution is a triggering 
contribution and Best MA engaged On-Site MA to solicit South City 
School District on behalf of Best MA. Because Best MA does not 
engage in municipal securities business, a ban on applicable 
business would subject Best MA only to a ban on municipal advisory 
business.
    In addition, as discussed infra, On-Site MA would also become 
subject to a ban on engaging in municipal advisory business with 
South City.
---------------------------------------------------------------------------

    A non-dealer municipal advisor third-party solicitor would be 
subject to a ban on municipal advisory business, including advising and 
soliciting, when a triggering contribution is made by any of the 
persons described in proposed Rule G-37(b)(i)(C)(1) to any ME 
official,\72\ if investment adviser selection influence.\73\
---------------------------------------------------------------------------

    \72\ The impact of a triggering contribution made by a municipal 
advisor third-party solicitor (or one of its MAPs, or a PAC 
controlled by the municipal advisor third-party solicitor or an MAP 
thereof) to an ME official is illustrated as follows:
    Best Dealer is a dealer located in a Midwestern state. Best MA 
is a municipal advisor located in a Midwestern state, and is not a 
municipal advisor third-party solicitor. Best IA third-party 
solicitor located in a western coastal state, State A. Best Dealer 
engages On-Site MA to solicit three major municipal entities in 
State A, including North City and South City, to hire Best Dealer to 
underwrite municipal bonds. Best MA engages On-Site MA to solicit 
the five largest municipal entities in State A, including North City 
and South City, to hire Best MA to provide municipal advisory 
services for such entities. Best IA engages On-Site MA to solicit, 
in State A, all municipalities with populations over 150,000 people, 
to retain Best IA for investment advice. Dan is an employee and an 
MAP of On-Site MA, and resides in North City. Dan makes a 
contribution of $240 to an ME official of South City, for whom Dan 
is not entitled to vote. The ME official exercises influence in the 
selection of dealers, municipal advisors and investment advisers, 
for South City matters.
    The consequences for On-Site MA would be as follows: On-Site MA 
would be banned from the following business with South City: 
engaging in any form of municipal advisory business with South City 
(because municipal advisory business is defined to include 
solicitation on behalf of dealers, municipal advisors and investment 
advisers AND other municipal advisory functions), including 
soliciting South City on behalf of any dealer, including Best 
Dealer, any third-party municipal advisor, including Best MA, and 
any investment adviser.
    The additional consequences of such contribution would be as 
follows: The dealer client, Best Dealer, would become subject to a 
ban on engaging in municipal securities business with South City, 
because Best Dealer engaged On-Site MA to solicit South City on 
behalf of Best Dealer (and the ME official receiving the 
contribution had dealer selection influence); and the municipal 
advisor client, Best MA, would become subject to a ban on engaging 
in municipal advisory business (of any type) with South City, 
because Best MA engaged On-Site MA to solicit South City on behalf 
of Best MA (and the ME official receiving the contribution had 
municipal advisor selection influence). However, Best IA, who also 
engaged On-Site MA to solicit South City (a municipality with a 
population of over 150,000 people), would not be subject to a ban 
under proposed amended Rule G-37, because although the ME official 
receiving the contribution had investment adviser selection 
influence, the proposed rule change does not extend to investment 
advisers that are not also dealers or municipal advisors. However, 
as noted supra, Best IA would be subject to the requirements and 
prohibitions provided in the IA Pay to Play Rule. See discussion in 
``Investment Adviser Clients of a Municipal Advisor Third-Party 
Solicitor'' and n. 60, supra.
    \73\ Additionally, a contribution made by any of the persons 
described in proposed Rule G-37(b)(i)(C)(2) to an official of a 
municipal entity with municipal advisor selection influence could 
also trigger a ban for the engaging municipal advisor third-party 
solicitor if the engaging municipal advisor third-party solicitor 
engaged another municipal advisor third-party solicitor under 
proposed Rule G-37(b)(i)(C)(2)(b).
---------------------------------------------------------------------------

    If a municipal advisor does not also engage in municipal securities 
business, a ban on applicable business under the proposed rule change 
would subject the municipal advisor only to a ban on municipal advisory 
business.
Ban on Business for Dealer-Municipal Advisors
    The proposed rule change would treat dealer-municipal advisors as a 
single economic unit and would subject such firms to an appropriately 
scoped ban on business. The scope of the ban on business would not be 
dependent on the particular line of business within the dealer-
municipal advisor with which the person or PAC that is the contributor 
may be associated. Instead, the scope of the ban on business would 
depend on the type of influence that can be exercised by the ME 
official to whom the triggering contribution is made. As a result, a 
dealer-municipal advisor could be subject, based on a single 
contribution, to a ban on municipal securities business, a ban on 
municipal advisory business, or both. Further, any of the following 
entities or persons might trigger a ban on business for a dealer-
municipal advisor if the entity or person makes a contribution that is 
a triggering contribution in the particular facts and circumstances: 
The dealer-municipal advisor; an MFP or MAP of the dealer-municipal 
advisor; a PAC controlled by the dealer-municipal advisor or an MFP or 
an MAP of the dealer-municipal advisor; a municipal advisor third-party 
solicitor engaged on behalf of the dealer-municipal advisor; an MAP of 
such municipal advisor third-party solicitor; or a PAC controlled by 
either such municipal advisor third-party solicitor or an MAP of such 
municipal advisor third-party solicitor.
    Ban on Applicable Business for Dealer-Municipal Advisors. A dealer-
municipal advisor could be subject to a ban on municipal securities 
business, in its capacity as a dealer, under proposed Rule G-
37(b)(i)(A) or proposed Rule G-37(b)(i)(C)(2)(a), under the same terms 
that apply to other dealers. Similarly, a dealer-municipal advisor that 
is not a municipal advisor third-party solicitor could, under proposed 
Rule G-37(b)(i)(B) or proposed Rule G-37(b)(i)(C)(2)(b), be subject to 
a ban on municipal advisory business under the same terms that apply to 
non-dealer municipal advisors that are not municipal advisor third-
party solicitors. In addition, if a dealer-municipal advisor is a 
municipal advisor third-party solicitor, under proposed Rule G-
37(b)(i)(C), the dealer-municipal advisor could be subject to a ban on 
municipal advisory business under the same terms that apply to other 
municipal advisor third-party solicitors.
    Cross-Ban. In addition to paragraphs (b)(i)(A), (b)(i)(B) and 
(b)(i)(C) potentially having application to dealer-municipal advisors, 
proposed Rule G-37(b)(i)(D) would provide for the imposition of a 
``cross-ban'' for dealer-municipal advisors to address quid pro quo 
corruption, or the appearance thereof, in two scenarios that arise only 
for dealer-municipal advisors. The proposed cross-ban would be a ban on 
business applicable to a line of business within a dealer-municipal 
advisor as a result of a triggering contribution that emanated from a 
person or entity associated with the other line of business within the 
same dealer-municipal advisor. With the provision for a cross-ban, the 
scope of a ban on business for a dealer-municipal advisor would not be 
dependent on the particular line of business within the dealer-
municipal advisor with which the person or PAC that is the contributor 
may be associated. Instead, the scope of

[[Page 81720]]

the ban on business will depend on the type of influence that can be 
exercised by the ME official to whom the triggering contribution is 
made.
    In the first scenario, a contribution is made to an ME official 
with both dealer and municipal advisor selection influence by a person 
or entity associated with only one line of business within the dealer-
municipal advisor. For example, assume an MFP of the dealer-municipal 
advisor who is not also an MAP makes a triggering contribution to an ME 
official with both dealer and municipal advisor selection influence. 
Proposed paragraph (b)(i)(D) would subject the dealer-municipal advisor 
to a ban not only on municipal securities business but also to a cross-
ban on municipal advisory business because the contribution is to an ME 
official who can exercise influence as to the selection of the dealer-
municipal advisor in both a dealer and municipal advisor capacity.
    In the second scenario, a contribution is made to an ME official 
with only one type of influence (either dealer selection influence or 
municipal advisor selection influence, but not both) from a person or 
entity associated only with the line of business as to which the ME 
official does not have influence. For example, assume a triggering 
contribution is made to an official of a municipal entity with only 
dealer selection influence by an MAP of the dealer-municipal advisor 
who is not also an MFP. Proposed paragraph (b)(i)(D) would subject the 
dealer-municipal advisor to a cross-ban on municipal securities 
business, but not to a ban on municipal advisory business because the 
ME official is not an official with municipal advisor selection 
influence.\74\ Similarly, if a triggering contribution were made to an 
official of a municipal entity with only municipal advisor selection 
influence by an MFP of the dealer-municipal advisor who is not an MAP, 
the dealer-municipal advisor would be subject to only a ban on 
municipal advisory business.
---------------------------------------------------------------------------

    \74\ Consistently, if a contribution is made by an MAP of a 
dealer-municipal advisor that is also a municipal advisor third-
party solicitor to an ME official with only investment adviser 
selection influence, the dealer-municipal advisor would be subject 
to a ban on municipal advisory business, but it would not be subject 
to a cross-ban on municipal securities business.
---------------------------------------------------------------------------

    The table below shows the most common persons from whom a 
contribution could trigger a ban on municipal securities business, a 
ban on municipal advisory business, or both under proposed amended Rule 
G-37.

            Persons From Whom a Contribution Could Trigger a Ban on Municipal Securities Business, Municipal Advisory Business, or Both \75\
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulated Entity Subject to a Ban    I. Dealer.............  II. Municipal Advisor   III. Municipal          IV. Dealer-Municipal Advisor (for purposes
                                                              That Is Not a.          Advisor Third-Party            of this table, ``the firm'')
                                                             Municipal Advisor        Solicitor (for
                                                              Third-Party Solicitor.  purposes of this
                                                                                      table, ``MATP
                                                                                      solicitor'').
--------------------------------------------------------------------------------------------------------------------------------------------------------
Contributor........................  the dealer............  the municipal advisor.  the MATP solicitor...                    the firm.
                                    --------------------------------------------------------------------------------------------------------------------
                                     an MFP of the dealer..  an MAP of the           an MAP of the MATP     an MFP of the firm...  an MAP of the firm.
                                                              municipal advisor.      solicitor.
                                    --------------------------------------------------------------------------------------------------------------------
                                     a PAC controlled by     a PAC controlled by     a PAC controlled by            a PAC controlled by the firm.
                                      the dealer.             the municipal advisor.  the MATP solicitor.
                                    --------------------------------------------------------------------------------------------------------------------
                                     a PAC controlled by an  a PAC controlled by an  a PAC controlled by    a PAC controlled by    a PAC controlled by
                                      MFP of the dealer.      MAP of the municipal    an MAP of the MATP     an MFP of the firm.    an MAP of the firm.
                                                              advisor.                solicitor.
                                    --------------------------------------------------------------------------------------------------------------------
                                     If an MATP solicitor    If an MATP solicitor    If an MATP solicitor   If an MATP solicitor is engaged to solicit a
                                      is engaged to solicit   is engaged to solicit   is engaged to          municipal entity on behalf of the firm, the
                                      a municipal entity on   a municipal entity on   solicit a municipal        entities and persons in column III.
                                      behalf of the dealer,   behalf of the           entity on behalf of
                                      the entities and        municipal advisor,      the MATP solicitor,
                                      persons in column III.  the entities and        the entities and
                                                              persons in column III.  persons in this
                                                                                      column above.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Orderly Transition Period
---------------------------------------------------------------------------

    \75\ This table is for illustrative purposes only. Reference 
should be made to the proposed amended rule text for complete 
details.
---------------------------------------------------------------------------

    As discussed above, under the 1997 Guidance, a dealer that is 
subject to a ban on municipal securities business with an issuer is 
prohibited from engaging in new municipal securities business with that 
issuer, which includes pre-existing but non-issue-specific contractual 
undertakings. In such cases, to give the issuer the opportunity to 
receive the benefit of the work already provided and to find a 
replacement to complete the work performed by the dealer, as needed, 
the dealer may--notwithstanding the ban on business--continue to 
perform its pre-existing but non-issue-specific contractual 
undertakings subject to an orderly transition to another entity to 
perform such business.\76\ The interpretive guidance provides that this 
transition period should be as short a period of time as possible.\77\
---------------------------------------------------------------------------

    \76\ See 1997 Guidance.
    \77\ Id.
---------------------------------------------------------------------------

    Proposed Rule G-37(b)(i)(E) would essentially codify this guidance 
for dealers and extend it to municipal advisors that are not soliciting 
the municipal entity with which they become subject to a ban on 
applicable business. Under this provision, a dealer or municipal 
advisor that is engaging in municipal securities business or municipal 
advisory business with a municipal entity and, during the period of the 
engagement, becomes subject to a ban on applicable business, may 
continue to engage in the otherwise prohibited municipal securities 
business and/or municipal advisory business solely to allow for an 
orderly transition to another entity and, where

[[Page 81721]]

applicable, to allow a municipal advisor to act consistently with its 
fiduciary duty to its client. This provision, however, would not permit 
a municipal advisor third-party solicitor to continue soliciting a 
municipal entity with which it becomes prohibited from engaging in 
municipal advisory business.\78\ Consistent with the 1997 Guidance, the 
proposed rule change would specifically provide that the transition 
period must be as short a period of time as possible. In addition, in 
the event that a dealer or municipal advisor avails itself of the 
orderly transition period, proposed Rule G-37(b)(i)(E) would extend the 
ban on business with the municipal entity for which the dealer or 
municipal advisor utilized the orderly transition period by the 
duration of the orderly transition period.
---------------------------------------------------------------------------

    \78\ Because any relevant contractual obligations of a municipal 
advisor third-party solicitor in its capacity as such are owed not 
to a municipal entity but to third-party regulated entities or 
investment advisers, the rationale for the orderly transition period 
would not apply.
---------------------------------------------------------------------------

    For municipal advisors, consistent with the existing interpretive 
guidance applicable to dealers, the orderly transition period would 
apply only with respect to pre-existing but non-issue-specific 
contractual undertakings owed to municipal entities, which, as 
discussed above, are included in ``new'' municipal advisory business 
and are subject to a ban. For example, if a municipal advisor enters 
into a long-term contract with a municipal entity for municipal 
advisory business (e.g., a five-year agreement in which the municipal 
advisor agrees to provide to the municipal entity advice on a range of 
matters, including with respect to its reserve policy and the issuance 
of municipal securities) and a contribution that results in a ban on 
municipal advisory business is given after such a non-issue-specific 
contract is entered into, the municipal advisor would be permitted to 
continue to perform under the contract for as short a period of time as 
possible to allow for an orderly transition to another municipal 
advisor. Also, in this example, the ban on municipal advisory business 
with the municipal entity would be extended by the length of the 
orderly transition period.
    After carefully considering whether to extend the orderly 
transition period under the interpretive guidance to municipal 
advisors, the MSRB determined that it is a necessary and appropriate 
aspect of the regulatory framework governing the municipal market. 
Significantly, the MSRB believes that certain aspects of proposed 
amended Rule G-37 would serve as important bulwarks against potential 
abuse of the orderly transition period. Public disclosure is a critical 
aspect of Rule G-37 and under the proposed rule change, municipal 
advisors would be required to disclose (comparable to the current 
requirements for dealers) to the MSRB information about their political 
contributions and the municipal advisory business in which they have 
engaged.\79\ The MSRB then would make such disclosures available to the 
public as well as fellow regulators charged with examining for 
compliance with and enforcing Rule G-37. In addition, under proposed 
Rule G-37(d), municipal advisors and their MAPs would (comparable to 
the current requirements for dealers) be prohibited from doing, 
directly or indirectly, through or by any other person or means, any 
act which would result in a violation of a ban on business. This anti-
circumvention provision, together with the required disclosures, would 
act to deter and promote detection of potential abuses of the orderly 
transition period. The MSRB believes that this overall approach strikes 
the appropriate balance between accommodating the need for municipal 
advisors to act consistently with their fiduciary duties and the need 
to address the appearance of, or actual, quid pro quo corruption 
involving municipal advisors.
---------------------------------------------------------------------------

    \79\ See discussion in ``Public Disclosure of Contributions and 
Other Information,'' infra.
---------------------------------------------------------------------------

Excluded Contributions
    Proposed amendments to Rule G-37(b)(ii) would consolidate in one 
provision the types of contributions that do not currently subject a 
dealer to a ban on applicable business, and would extend the same 
exclusions to municipal advisors. The first exclusion is for de minimis 
contributions, and the second and third exclusions are modifications of 
the two-year look-back provision that would otherwise apply, as 
explained below.
    De Minimis Contributions. Under current Rule G-37(b)(i), 
contributions made by an MFP to an issuer official for whom the MFP is 
entitled to vote will not trigger a ban on municipal securities 
business if such contributions do not, in total, exceed $250 per 
election.\80\ The proposed amendments to Rule G-37 would retain this 
exclusion for MFPs of dealers in proposed Rule G-37(b)(ii)(A). Proposed 
Rule G-37(b)(ii)(A) also would extend this exclusion to the MAPs of all 
municipal advisors, including the MAPs of municipal advisor third-party 
solicitors. If a contribution by an MAP of a municipal advisor third-
party solicitor would meet the de minimis exclusion, neither the 
municipal advisor third-party solicitor nor the dealer client or 
municipal advisor client for which it was engaged to solicit business 
would be subject to a ban. In addition, proposed Rule G-37(b)(ii)(A) 
would incorporate non-substantive changes to the de minimis exclusion 
in current Rule G-37 to improve the readability of the provision.
---------------------------------------------------------------------------

    \80\ For purposes of the de minimis exclusion, primary elections 
and general elections are separate elections. Therefore if an 
official is involved in a primary election prior to the general 
election, an MFP who is entitled to vote for such official may, 
within the scope of the de minimis exclusion, contribute up to $250 
to the official in a primary election and again contribute a 
separate $250 to the same official in a general election. See MSRB 
Rule G-37 Interpretive Notice--Application of Rule G-37 to 
Presidential Campaigns of Issuer Officials (March 23, 1999).
---------------------------------------------------------------------------

    Other Excluded Contributions. Currently, under Rule G-37, according 
to what is known as the ``two-year look-back,'' a dealer is generally 
subject to a ban on municipal securities business for a period of two 
years from the making of a triggering contribution, even if such 
contributions were made by a person, who, although now an MFP of a 
dealer, was not an MFP of the dealer at the time he or she made the 
contribution. The proposed rule change would retain the two-year look-
back for MFPs \81\ and would extend it to the MAPs of municipal 
advisors that are not municipal advisor third-party solicitors \82\ as 
well as municipal advisors that are municipal advisor third-party 
solicitors.\83\
---------------------------------------------------------------------------

    \81\ See proposed Rule G-37(b)(i)(A).
    \82\ See proposed Rule G-37(b)(i)(B).
    \83\ See proposed Rule G-37(b)(i)(C). The ban on business for 
the dealer or municipal advisor, like the current treatment under 
Rule G-37, would only begin when such individual becomes an MFP or 
MAP of the dealer or municipal advisor, as applicable.
---------------------------------------------------------------------------

    Currently, the two-year look-back is modified under Rule G-37 in 
two situations. Under Rule G-37(b)(ii), contributions to an issuer 
official by an individual that is an MFP solely based on his or her 
solicitation activities for the dealer are excluded and do not trigger 
a ban on municipal securities business for the dealer, unless such MFP 
(who is so characterized solely based on his or her solicitation 
activities for the dealer) subsequently solicits municipal securities 
business from the same issuer. The proposed amendments to Rule G-37 
would relocate to proposed paragraph (b)(ii)(B) this exclusion 
applicable to such MFPs (``dealer solicitors'' as defined in proposed 
Rule G-37(g)(ii)(B)) and would extend it to MAPs that perform a similar 
solicitation function within a municipal advisory firm (``municipal 
advisor solicitors'' as

[[Page 81722]]

defined in proposed Rule G-37(g)(iii)(B)). To improve the readability 
of this provision, Rule G-37(b)(ii), as proposed to be amended, would 
refer to the relevant MFPs and MAPs by the proposed descriptive terms 
(discussed above) rather than by cross-reference to the relevant 
definitions. Lastly, a technical amendment would be incorporated in 
proposed Rule G-37(b)(ii)(B) to clarify that the non-solicitation 
condition would not be required to be met for the contribution to be 
excluded after two years have elapsed since the making of the 
contribution.
    Currently, under Rule G-37(b)(iii), contributions by MFPs who have 
that status solely by virtue of their supervisory or management-level 
activities, including persons serving on an executive or management 
committee (i.e., those persons described in paragraphs (C), (D) and (E) 
of current Rule G-37(g)(iv), the definition of municipal finance 
professional) are excluded and do not trigger a ban on municipal 
securities business if such contributions were made more than six 
months before the contributor obtained (including by designation) his 
or her MFP status. The proposed amendments to Rule G-37 would relocate 
to paragraph (b)(ii)(C) this exclusion applicable to such MFPs (i.e., 
``municipal finance principals,'' ``dealer supervisory chain persons,'' 
and ``dealer executive officers'' as defined in proposed Rule G-
37(g)(ii)(C), (D) and (E)) and, similarly, would treat contributions 
made, under the same circumstances, by the analogous categories of MAPs 
as excluded contributions. The analogous categories of MAPs would be 
those MAPs that have MAP status solely by virtue of their supervisory 
or management-level activities, including persons serving on an 
executive or management committee (i.e., ``municipal advisor 
principals,'' ``municipal advisor supervisory chain persons,'' and 
``municipal advisor executive officers'' as defined in proposed Rule G-
37(g)(iii)(C), (D) and (E)). To improve the readability of this 
provision, proposed Rule G-37(b)(ii), as proposed to be amended, would 
refer to the relevant MFPs and MAPs by the proposed descriptive terms 
rather than by cross-references to the relevant definitions.
Prohibition on Soliciting and Coordinating Contributions
    Currently, Rule G-37(c)(i) prohibits a dealer and an MFP of the 
dealer from soliciting any person or PAC to make any contribution or 
coordinating any contributions to an issuer official with which the 
dealer is engaging or is seeking to engage in municipal securities 
business. The proposed amendments to this subsection would retain this 
prohibition with respect to dealers and their MFPs and would extend the 
prohibition to municipal advisors and their MAPs. Further, to ensure a 
relevant nexus exists between the type of business in which a regulated 
entity engages or seeks to engage and its solicitation or coordination 
of any contributions to an ME official with the influence to award such 
business, proposed subsection (c)(i) would be amended to distinguish 
contributions based on the type of influence held by the ME official.
    Thus, under proposed subsection (c)(i), a dealer and an MFP of the 
dealer would be prohibited from soliciting any person or PAC to make 
any contribution, or from coordinating any contributions, to an 
official of a municipal entity with dealer selection influence with 
which municipal entity the dealer is engaging, or is seeking to engage, 
in municipal securities business. Similarly, a municipal advisor and an 
MAP of the municipal advisor would be prohibited from soliciting any 
person or PAC to make any contribution, or from coordinating any 
contributions, to an official of a municipal entity with municipal 
advisor selection influence with which municipal entity the municipal 
advisor is engaging, or is seeking to engage, in municipal advisory 
business. In addition, in light of the nexus that exists between a 
municipal advisor third-party solicitor's business (to solicit business 
on behalf of dealers, municipal advisors and investment advisers) and 
ME officials of every type, the prohibition on soliciting and 
coordinating contributions would apply, for municipal advisor third-
party solicitors, to the solicitation or coordination of contributions 
to any ME official, if the ME official has municipal advisor selection 
influence, dealer selection influence or investment adviser selection 
influence.
    Because dealer-municipal advisors engage in both municipal 
securities business and municipal advisory business, and consistent 
with the principle that dealer-municipal advisors should be treated as 
a single economic unit, proposed subsection (c)(i) would not, for 
dealer-municipal advisors, distinguish a contribution given to an 
official of a municipal entity with dealer selection influence from one 
given to an official of a municipal entity with municipal advisor 
selection influence. Thus, a dealer-municipal advisor, its MFPs, and 
its MAPs would be prohibited from soliciting any person or PAC to make 
any contribution or coordinating any contributions to an official of a 
municipal entity with dealer selection influence or municipal advisor 
selection influence with which municipal entity the dealer-municipal 
advisor is engaging or is seeking to engage in municipal securities 
business or municipal advisory business. If the dealer-municipal 
advisor is a municipal advisor third-party solicitor, the dealer-
municipal advisor and its MAPs would also be prohibited from soliciting 
or coordinating contributions to an official with investment adviser 
selection influence.
    Currently, Rule G-37(c)(ii) prohibits a dealer and three of the 
five categories of MFPs as defined, respectively, in current Rule G-
37(g)(iv)(A), (B) and (C), from soliciting any person or PAC to make 
any payment or coordinate any payments to a political party of a state 
or locality where the dealer is engaging or seeking to engage in 
municipal securities business. Proposed amendments to this subsection 
would retain this prohibition with respect to dealers and these 
categories of MFPs and would extend the prohibitions to municipal 
advisors and the three analogous categories of MAPs (``municipal 
advisor representatives,'' ``municipal advisor solicitors,'' and 
``municipal advisor principals,'' as defined, respectively, in proposed 
Rule G-37(g)(iii)(A), (B) and (C)). To improve the readability of this 
provision, Rule G-37(c)(ii), as proposed to be amended, would refer to 
the relevant MFPs and MAPs by their proposed descriptive terms, rather 
than by cross-references to the relevant definitions.
Prohibition on Circumvention of Rule
    Rule G-37(d) currently prohibits a dealer and any MFP of the dealer 
from doing, directly or indirectly, through or by any other person or 
means, any act which would result in a violation of the ban on 
municipal securities business or the prohibition on soliciting or 
coordinating contributions. Proposed amendments to this section would 
retain this prohibition with respect to dealers and their MFPs and 
would extend it to municipal advisors and their MAPs.
Public Disclosure of Contributions and Other Information
    Currently, Rule G-37(e) contains broad public disclosure 
requirements to facilitate enforcement of Rule G-37 and to promote 
public scrutiny of dealers' political contributions and municipal 
securities business. Under the provision, dealers are required to

[[Page 81723]]

disclose publicly on Form G-37 information about certain: (i) 
Contributions to issuer officials; (ii) payments to political parties 
of states or political subdivisions; (iii) contributions to bond ballot 
campaigns; and (iv) information regarding municipal securities business 
with issuers. Currently, Form G-37 may be provided to the Board in 
paper or electronic form.
    The proposed amendments to Rule G-37(e) would retain these 
disclosure requirements for dealers, except such requirements would 
apply to contributions to ``officials of municipal entities,'' which is 
a potentially broader group of recipients than ``officials of an 
issuer.'' \84\ The disclosure requirements would also apply to 
municipal securities business with ``municipal entities'' rather than 
``issuers.'' Proposed amendments to Rule G-37(e)(iv), however, would 
remove the option of making paper, rather than electronic, submissions 
to the Board.
---------------------------------------------------------------------------

    \84\ The MSRB does not propose to amend the existing disclosure 
requirements to limit the disclosure of contributions based on the 
relevant ME official's type of influence. Rather, to further the 
purposes of the proposed rule change, including permitting the 
public to scrutinize the political contributions of regulated 
entities and to address the appearance of quid pro quo corruption, 
the applicable disclosures would be required for contributions to 
any type of ME official.
---------------------------------------------------------------------------

    For municipal advisors, the disclosure requirements of proposed 
amended Rule G-37(e), would be substantially similar to those for 
dealers, with one exception for municipal advisor third-party 
solicitors. The proposed amendments to Rule G-37(e)(i)(C) would require 
municipal advisor third-party solicitors to list on Form G-37 the names 
of the third parties on behalf of which they solicited business as well 
as the nature of the business solicited. The proposed amendments to 
Rule G-37(e)(iv) would require municipal advisors, like dealers, to 
submit the required disclosures to the Board in electronic form. The 
MSRB also proposes to incorporate minor, non-substantive changes to 
section (e) to improve the readability of the section.
    Currently, Rule G-37(f) permits dealers to submit additional 
voluntary disclosures to the Board. The proposed amendments to Rule G-
37(f) would make no change in this respect for dealers and would permit 
municipal advisors also to make voluntary disclosures.
Definitions
    Current Rule G-37(g) sets forth definitions for several terms used 
in Rule G-37. Proposed amendments to this section (which are not 
addressed in detail elsewhere in this filing) would add to Rule G-37 
new defined terms and would modify existing defined terms in large part 
to make the appropriate provisions of Rule G-37 applicable to municipal 
advisors and their associated persons. The first new defined term, 
``regulated entity,'' in proposed Rule G-37(g)(i), would mean ``a 
dealer or municipal advisor,'' and the terms ``regulated entity,'' 
``dealer'' and ``municipal advisor'' would exclude the entity's 
associated persons. With the addition of the defined term ``regulated 
entity'' current Rule G-37(g)(iii), which distinguishes dealers from 
their associated persons, would be deleted as unnecessary. The 
definition of ``reportable date of selection'' would be amended to 
apply it to municipal advisors, to slightly reorganize the definition 
and to relocate it from Rule G-37(g)(xi) to proposed Rule G-
37(g)(xviii).
    Several of the proposed new defined terms for municipal advisors 
would be analogous to the defined terms applicable to dealers in 
current Rule G-37. Proposed Rule G-37(g)(xiv) would define the new term 
``non-MAP executive officer'' regarding the executive officers of a 
municipal advisor in a manner analogous to the term ``non-MFP executive 
officer'' applicable to executive officers of dealers under proposed 
Rule G-37(g)(xv).\85\ Also, proposed Rule G-37(g)(iv) would define the 
new term ``bank municipal advisor'' in a manner analogous to the 
current definition of the term ``bank dealer'' under Rule D-8.\86\ The 
term ``municipal advisor'' would be defined based on the definition of 
the term in the Exchange Act and Commission rules.\87\
---------------------------------------------------------------------------

    \85\ The current definition of ``Non-MFP executive officer'' 
would be relocated from Rule G-37(g)(v) to proposed Rule G-37(g)(xv) 
and incorporate minor, technical changes to the term (e.g., to 
update a cross-reference and to replace the phrase ``broker, dealer 
or municipal securities dealer,'' with ``dealer'').
    \86\ ``Bank municipal advisor'' is defined in proposed Rule G-
37(g)(iv) to mean: ``a municipal advisor that is a bank or a 
separately identifiable department or division of the bank as 
defined in Section 15B(e)(4) of the Act and 17 CFR 240.15Ba1-
1(d)(4)(i) thereunder.''
    Rule D-8 defines the term ``bank dealer'' to mean ``a municipal 
securities dealer which is a bank or a separately identifiable 
department or division of a bank as defined in rule G-1 of the 
Board.''
    \87\ ``Municipal advisor'' is defined in proposed Rule G-
37(g)(viii) to mean: ``a municipal advisor that is registered or 
required to be registered under Section 15B of the Act and the rules 
and regulations thereunder.''
---------------------------------------------------------------------------

    The proposed amendments would renumber and relocate a number of 
definitions in Rule G-37(g) as follows: ``bond ballot campaign'' would 
be relocated from subsection (g)(x) to proposed subsection (g)(v); 
``issuer'' would be relocated from subsection (g)(ii) to proposed 
subsection (g)(vii); ``payment'' would be relocated from subsection 
(g)(viii) to proposed subsection (g)(xvii); ``municipal securities 
business'' would be relocated from subsection (g)(vii) to proposed 
subsection (g)(xii); and ``contribution'' would be relocated from 
subsection (g)(i) to proposed subsection (g)(vi). With the exception of 
substituting the term ``municipal entity'' in place of ``issuer'' in 
the definition of the terms ``contribution'' and ``municipal securities 
business,'' the proposed amendments to Rule G-37(g) would not 
substantively amend the definitions of these terms.
Operative Date
    Current Rule G-37(h) provides that a ban on business under the rule 
arises only from contributions made on or after April 25, 1994 (the 
original effective date of Rule G-37). Proposed amendments to section 
(h) would provide that a ban on applicable business under the rule 
would arise only from contributions made on or after an effective date 
to be announced by the MSRB in a regulatory notice published no later 
than two months following SEC approval, which effective date shall be 
no sooner than six months following publication of the regulatory 
notice and no later than one year following SEC approval. However, with 
respect to dealers and dealer-municipal advisors that are currently 
subject to the requirements of Rule G-37, any ban on municipal 
securities business that was already triggered before the effective 
date of the proposed rule change would remain in effect and end 
according to the provisions of Rule G-37 as in effect at the time of 
the contribution that triggered the ban.
Exemptions
    Rule G-37 currently provides two mechanisms through which a dealer 
may be exempted from a ban on municipal securities business. First, 
under current Rule G-37(i), a registered securities association of 
which a dealer is a member, or another appropriate regulatory agency 
\88\ (collectively, ``agency'') may, upon application, exempt a dealer 
from a ban on municipal securities business. In determining whether to 
grant the exemption, the agency must consider, among other factors:
---------------------------------------------------------------------------

    \88\ Under MSRB Rule D-14, ``[w]ith respect to a broker, dealer, 
or municipal securities dealer, `appropriate regulatory agency' has 
the meaning set forth in Section 3(a)(34) of the Act.''
---------------------------------------------------------------------------

     Whether the exemption is consistent with the public 
interest, the protection of investors and the purposes of the rule;

[[Page 81724]]

     whether, prior to the time a triggering contribution was 
made, the dealer had developed and instituted procedures reasonably 
designed to ensure compliance with the rule, and had no actual 
knowledge of the triggering contribution;
     whether the dealer has taken all available steps to cause 
the contributor to obtain a return of the triggering contribution(s), 
and has taken other remedial or preventive measures as appropriate 
under the circumstances, and the nature of such other remedial or 
preventive measures directed specifically toward the contributor who 
made the triggering contribution and all employees of the dealer;
     whether, at the time of the triggering contribution, the 
contributor was an MFP or otherwise an employee of the dealer, or was 
seeking such employment;
     the timing and amount of the triggering contribution;
     the nature of the election (e.g., federal, state or 
local); and
     the contributor's apparent intent or motive in making the 
triggering contribution, as evidenced by the facts and circumstances 
surrounding the triggering contribution.\89\
---------------------------------------------------------------------------

    \89\ See Rule G-37(i).
---------------------------------------------------------------------------

    The proposed amendments to section (i) would extend its provisions 
to municipal advisors, including municipal advisor third-party 
solicitors, and bans on municipal advisory business, on generally 
analogous terms. The proposed amendments would provide a process for 
municipal advisors subject to a ban on municipal advisory business to 
request exemptive relief from such ban on business from a registered 
securities association of which is it a member or the Commission, or 
its designee, for all other municipal advisors. Dealer-municipal 
advisors seeking exemptive relief from a ban on municipal securities 
business and a ban on municipal advisory business must, for each type 
of ban, seek relief from the applicable agency or agencies. With 
respect to dealers, the proposed amendments to section (i) would also 
make minor, non-substantive changes to improve its readability.
    Under the proposed amendments, in determining whether to grant the 
requested exemptive relief from a ban on municipal advisory business, 
the relevant agency would be required to consider the factors, with 
limited modifications, that currently apply when a request for 
exemptive relief is made by a dealer. The proposed modifications to the 
factors are limited to those necessary to reflect their application to 
both dealers and municipal advisors \90\ and to make them otherwise 
consistent with previously discussed proposed amendments to Rule G-37. 
Specifically, subsection (i)(i), which currently requires an agency to 
consider whether the requested exemptive relief would be ``consistent 
with the public interest, the protection of investors and the purposes 
of'' Rule G-37, would be amended to require consideration also of 
whether such exemptive relief would be consistent with the protection 
of municipal entities and obligated persons. In addition, as 
incorporated throughout the proposed amended rule, the term ``regulated 
entity'' would be substituted for the deleted phrase, ``broker, dealer 
or municipal securities dealer.''
---------------------------------------------------------------------------

    \90\ For example, in the case of a municipal advisor, the 
proposed amendments to Rule G-37(i)(iii) would require an agency to 
consider whether, at the time of the triggering contribution, the 
contributor was an MAP, otherwise an employee of the municipal 
advisor, or was seeking such employment, or was an MAP or otherwise 
an employee of a municipal advisor third-party solicitor engaged by 
the municipal advisor, or was seeking such employment.
---------------------------------------------------------------------------

    As previously discussed, under the proposed amendments to Rule G-
37(b), a contribution made by an MAP of a municipal advisor third-party 
solicitor soliciting business for a dealer client or a municipal 
advisor client would subject both the municipal advisor third-party 
solicitor and the regulated entity client to a ban on applicable 
business. Under the proposed amendments to section (i), if either the 
municipal advisor third-party solicitor or the regulated entity client 
desired exemptive relief from the applicable ban on business, the 
entity that desired relief would be required to separately apply for 
the exemptive relief and independently satisfy the relevant agency that 
the application should be granted.
    Second, under Rule G-37(j)(i), a dealer currently may avail itself 
of an automatic exemption (i.e., without the need to apply to an 
agency) from a ban triggered by its MFP if the dealer: Discovered the 
contribution within four months of the date of contribution; the 
contribution did not exceed $250; and the MFP obtained a return of the 
contribution within sixty days of the dealer's discovery of the 
contribution. Rule G-37(j)(ii) currently limits the number of automatic 
exemptions available to a dealer to no more than two automatic 
exemptions per twelve-month period. Rule G-37(j)(iii) currently further 
limits the use of the automatic exemption, providing that a dealer may 
not execute more than one automatic exemption relating to contributions 
made by the same person (i.e., an individual MFP) regardless of the 
time period.
    The proposed amendments to section (j) would extend its provisions 
to all municipal advisors and bans on municipal advisory business. A 
municipal advisor could avail itself of an automatic exemption from a 
ban triggered by an MAP of the municipal advisor upon satisfaction of 
conditions that are the same or analogous \91\ to those currently 
applicable to dealers. Similarly, a dealer-municipal advisor subject to 
a cross-ban could avail itself of an automatic exemption from a ban on 
applicable business upon satisfaction of the applicable conditions.\92\ 
In addition, when a contribution made by an MAP of the municipal 
advisor third-party solicitor soliciting business for a regulated 
entity client would subject both the municipal advisor third-party 
solicitor and the regulated entity client to a ban on applicable 
business, each would be allowed to avail itself of an automatic 
exemption if it separately met the specified conditions. The use of an 
automatic exemption would count against a regulated entity's allotment 
(of no more than two automatic exemptions) per twelve-month period, 
regardless of whether the contribution that triggered the ban was made 
by an MFP or an MAP of that regulated entity or by an MAP of an engaged 
municipal advisor third-party solicitor.
---------------------------------------------------------------------------

    \91\ For example, in the case of a municipal advisor pursuing an 
automatic exemption, the proposed amendments to Rule G-37(j)(i)(C) 
would require the MAP-contributor to obtain the return of the 
triggering contribution.
    \92\ A cross-ban would be considered one ban on business. Thus, 
under section (j)(ii), as proposed to be amended, the execution by a 
dealer-municipal advisor of the automatic exemptive relief provision 
to address a cross-ban would be the execution of one exemption.
---------------------------------------------------------------------------

Proposed Amendments to Rules G-8 and G-9 and Forms G-37 and G-37x
    The proposed amendments to Rule G-8 (books and records) and Rule G-
9 (preservation of records) would make related changes to those rules 
based on the proposed amendments to Rule G-37. The proposed amendments 
to Rule G-8 would add a new paragraph (h)(iii) to impose the same 
recordkeeping requirements related to political contributions by 
municipal advisors and their associated persons as currently exist for 
dealers and their associated persons. With respect to dealers, minor 
conforming proposed amendments to Rule G-8(a)(xvi) would be 
incorporated to conform the recordkeeping requirements of the rule to 
the proposed

[[Page 81725]]

amendments to Rule G-37 regarding dealers. For example, the proposed 
rule change would incorporate in Rule G-8(a)(xvi) certain terms added 
to the definition of municipal finance professional, and the obligation 
to submit Forms G-37 and G-37x to the Board in electronic form.
    The proposed amendments to Rule G-9(h) would generally require 
municipal advisors to preserve for six years the records required to be 
made in proposed amended Rule G-8(h)(iii), consistent with the 
analogous retention requirement in Rule G-9(a) for dealers.
    The proposed amendments to Forms G-37 and G-37x would permit the 
forms to be used by both dealers and municipal advisors to make the 
disclosures that would be required by proposed amended Rule G-37(e). 
Dealer-municipal advisors could make all required disclosures on a 
single Form G-37.
2. Statutory Basis
    Section 15B(b)(2) of the Exchange Act \93\ provides that
---------------------------------------------------------------------------

    \93\ 15 U.S.C. 78o-4(b)(2).

[t]he Board shall propose and adopt rules to effect the purposes of 
this title with respect to transactions in municipal securities 
effected by brokers, dealers, and municipal securities dealers and 
advice provided to or on behalf of municipal entities or obligated 
persons by brokers, dealers, municipal securities dealers, and 
municipal advisors with respect to municipal financial products, the 
issuance of municipal securities, and solicitations of municipal 
entities or obligated persons undertaken by brokers, dealers, 
---------------------------------------------------------------------------
municipal securities dealers, and municipal advisors.

    Section 15B(b)(2)(C) of the Exchange Act \94\ provides that the 
MSRB's rules shall
---------------------------------------------------------------------------

    \94\ 15 U.S.C. 78o-4(b)(2)(C).

be designed to prevent fraudulent and manipulative acts and 
practices, to promote just and equitable principles of trade, to 
foster cooperation and coordination with persons engaged in 
regulating, clearing, settling, processing information with respect 
to, and facilitating transactions in municipal securities and 
municipal financial products, to remove impediments to and perfect 
the mechanism of a free and open market in municipal securities and 
municipal financial products, and, in general, to protect investors, 
---------------------------------------------------------------------------
municipal entities, obligated persons, and the public interest.

    The MSRB believes that the proposed rule change is consistent with 
the Act. It would address potential ``pay to play'' practices by 
municipal advisors involving corruption or the appearance of 
corruption. Doing so is consistent with the intent of Congress in 
granting rulemaking jurisdiction over municipal advisors to the MSRB. 
As the Commission has recognized, the regulation of municipal advisors 
and their advisory activities is generally intended to address problems 
observed with the unregulated conduct of some municipal advisors, 
including ``pay to play'' practices.\95\ Indeed, the relevant 
legislative history indicates that Congress determined to grant 
rulemaking authority over municipal advisors to the MSRB, in part, 
because it already ``has an existing, comprehensive set of rules on key 
issues such as pay-to-play and . . . that consistency would be 
important to ensure common standards.'' \96\
---------------------------------------------------------------------------

    \95\ See Order Adopting SEC Final Rule, 78 FR at 67469, 67475 
nn.104-6 and accompanying text (discussing relevant enforcement 
actions); Senate Report, at 38.
    \96\ Senate Report, at 149.
---------------------------------------------------------------------------

    The proposed amendments to Rule G-37 would subject all municipal 
advisors, including municipal advisor third-party solicitors, to ``pay 
to play'' regulation that is consistent with the MSRB's regulation of 
dealers.\97\ Like dealers, municipal advisors that seek to influence 
the award of business by government officials by making, soliciting or 
coordinating political contributions to officials can distort and 
undermine the fairness of the process by which government business is 
awarded, creating artificial impediments to a free and open market in 
municipal securities and municipal financial products. These practices 
can harm obligated persons, municipal entities and their citizens by 
resulting in inferior services and higher fees, as well as contributing 
to the violation of the public trust of elected officials who might 
allow political contributions to influence their decisions regarding 
public contracting. ``Pay to play'' practices are rarely explicit: 
Participants do not typically let it be known that contributions or 
payments are made or accepted for the purpose of influencing the 
selection of a municipal advisor (or dealer, municipal advisor or 
investment adviser on behalf of which a municipal advisor acts as a 
solicitor).\98\ Nonetheless, numerous developments in recent years have 
led the MSRB to conclude that the selection of market participants that 
may now be defined as municipal advisors has been influenced by ``pay 
to play'' practices and that political contributions as the quid pro 
quo for the award of valuable financial services contracts have been 
funneled through third parties that may now be municipal advisor third-
party solicitors as defined in the proposed rule change. These include 
public reports of ``pay to play'' practices involving the use of 
persons that may now be defined as municipal advisors,\99\ legislative 
and regulatory statements regarding the activity engaged in by some 
persons that may now be defined as municipal advisors,\100\ market 
participant

[[Page 81726]]

comments submitted to the MSRB regarding ``pay to play'' 
regulation,\101\ and a number of enforcement actions involving 
potential ``pay to play'' practices and financial advisors or third-
party intermediaries that may now be defined as municipal 
advisors.\102\
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    \97\ Some financial advisory firms that may now be defined as 
municipal advisory firms are registered as dealers and therefore 
subject to current Rule G-37. With respect to municipal advisors 
that are not dealers, as of 2009, approximately fifteen states had 
some form of ``pay to play'' prohibition, some of which were broad 
enough to apply to financial advisory services. Some municipalities 
also have such rules. In many cases, the limited and patchwork 
nature of these state and local laws has not been effective in 
addressing in a comprehensive way the possibility and appearance of 
``pay to play'' practices in the municipal securities market. See 
Statement of Ronald A. Stack, Chair, MSRB, Before the Senate 
Committee on Banking, Housing and Urban Affairs (Mar. 26, 2009).
    \98\ See Blount, 61 F.3d at 945 (``While the risk of corruption 
is obvious and substantial, actors in this field are presumably 
shrewd enough to structure their relations rather indirectly. . . 
.''); id. (``[N]o smoking gun is needed where, as here, the conflict 
of interest is apparent, the likelihood of stealth great, and the 
legislative purpose prophylactic.'').
    \99\ See, e.g., Randall Jensen, Some California FAs Use Pay-to-
Play Tactics, Critics Say, Bond Buyer, May 24, 2012 (suggesting that 
some financial advisors may engage in ``pay to play'' practices in 
the municipal market and noting that they are not currently subject 
to ``pay to play'' regulation); Randall Jensen, Brokers' Gifts That 
Keep Giving, Bond Buyer, January 13, 2012 (suggesting that the 
selection of dealers, financial advisors and other professionals in 
connection with bond ballot initiatives is motivated by ``pay to 
play'' practices and noting that financial advisors generally donate 
more than dealers but are not required to disclose contributions to 
the MSRB); Mary Williams Walsh, Nationwide Inquiry on Bids for 
Municipal Bonds, N.Y. Times, January 8, 2009, at A1 (reporting that 
``pay to play'' in the municipal bond market was widespread, and 
specifically referencing ``independent specialists who are supposed 
to help local governments''); Sarah McBride and Leslie Eaton, Legal 
Run-Ins Dog the Firm in New Mexico Probe, Wall St. J., January 7, 
2009 and Mary Williams Walsh, Bond Advice Leaves Pain in Its Wake, 
N.Y. Times, February 16, 2009 (both describing potential ``pay to 
play'' activity in the municipal securities market engaged in by an 
``unregulated'' adviser); Brad Bumsted, Firm in ``Pay to Play'' 
Probe Got $770,000 From State, Pittsburgh Trib. Rev., January 6, 
2009 (reporting on the political contributions made by the head of a 
financial advisory firm and the awarding of a financial advisory 
contract to that firm in the context of a nationwide inquiry into 
``pay to play'' practices in the municipal bond market); and Lynn 
Hume, SEC Doing Pay-to-Play Examinations, Bond Buyer, July 1, 2004 
(reporting SEC plans to examine a number of financial advisors and 
broker-dealers to determine if they have engaged in ``pay to play'' 
activities in the municipal market).
    \100\ See nn. 95 and 97 and accompanying text. See also Bond 
Regulators Eye Campaign Contribution Abuses, Reuters, April 10, 
2003, available at Westlaw, 4/10/03 Reuters News 20:14:27 (citing 
Commission, MSRB, and NASD (now FINRA) concerns of continued ``pay 
to play'' activity in the market, based on reports involving 
suspicious conduct engaged in by some market participants, including 
financial advisors); and SEC Report, at 102 (``[O]ther forms of 
potentially problematic pay-to-play activities involving commodity 
trading advisors, municipal advisors, or other municipal securities 
market participants are not yet directly regulated but raise 
disclosure issues for investors and the market.'').
    \101\ Notice of Filing of Proposed Rule Change Relating to 
Solicitation of Municipal Securities Business Under MSRB Rule G-38, 
Release No. 34-51561 (April 15, 2005), 70 FR 20782, at 20785-20786 
(April 21, 2005) (File No. SR-MSRB-2005-04) (citing comment letters 
from Jerry L. Chapman, First Southwest Company, Kirkpatrick, Pettis, 
Smith, Polian Inc., Merrill Lynch and Morgan Keegan & Company, Inc. 
and stating ``[m]any commentators are concerned that, although the 
problems associated with pay-to-play in the municipal securities 
industry are not limited to dealers, only dealers are subject to 
regulation in this area . . . They urge the MSRB to coordinate 
efforts with the Commission, NASD and others to apply pay-to-play 
limits to financial advisors, derivatives advisors, bond lawyers and 
other market participants'') (internal citations omitted); Notice of 
Filing of a Proposed Rule Change Relating to Amendments to MSRB 
Rules G-37 and G-8 and Form G-37, Release No. 34-68872 (February 8, 
2013), 78 FR 10656, 10663 (February 14, 2013) (File No. SR-MSRB-
2013-01) (summarizing comments from market participants that 
recommend extending the proposed amendments to Rule G-37 regarding 
increased disclosure of bond ballot contribution information to 
municipal advisors); Notice of Filing of Proposed New Rule G-42, on 
Political Contributions and Prohibitions on Municipal Advisory 
Activities; Proposed Amendments to Rules G-8, on Books and Records, 
G-9, on Preservation of Records, and G-37, on Political 
Contributions and Prohibitions on Municipal Securities Business; 
Proposed Form G-37/G-42 and Form G-37x/G-42x; and a Proposed 
Restatement of a Rule G-37 Interpretive Notice, Release No. 34-65255 
(September 2, 2011), 76 FR 55976 at 55983 (September 9, 2011) (File 
No. SR-MSRB-2011-12) (withdrawn) (quoting commenter NAIPFA) (``All 
too often, we see funds and/or campaign services being contributed 
to bond campaigns by underwriters [and] financial advisors . . . who 
end up providing services for the bond transaction work once the 
election is successful.''). From the time that the MSRB first 
proposed ``pay to play'' regulation for the municipal securities 
market, it has received comments from market participants requesting 
the extension of such regulation to persons that may now be deemed 
municipal advisors. See Notice of Filing of Proposed Rule Change by 
the Municipal Securities Rulemaking Board Relating to Political 
Contributions and Prohibitions on Municipal Securities Business, 
Release No. 34-33482 (January 14, 1994), 59 FR 3389, 3402-03 
(January 21, 1994) (File No. SR-MSRB-94-02) (summarizing concerns 
from several commenters that Rule G-37, as initially proposed in 
1994, did not apply to certain market participants including third-
party solicitors and independent financial advisors).
    \102\ Financial regulators have brought enforcement actions 
charging financial advisors with violations of various MSRB fair 
practice rules in connection with alleged activities that follow or 
include ``pay to play'' practices and quid pro quo exchanges. Other 
enforcement actions are in response to a specific violation of Rule 
G-37. See, e.g., In re Wheat, First Securities, Inc., SEC Initial 
Dec. Rel. No. 155 (December 17, 1999) (finding violation of Rule G-
17 and Florida fiduciary duty law for financial advisor's false 
disclosures to municipal entity regarding the use of a third party--
who had ``[o]ver the years, . . . made hundreds, if not thousands, 
of political contributions'' that ``secure[d]'' his access to 
officials--to secure its advisory contract with the county); In re 
RBC Capital Markets Corp., SEC Release No. 59439 (February 24, 2009) 
(finding that a financial advisor made advances in violation of Rule 
G-20 on behalf of a municipal entity client to pay for travel and 
entertainment expenses unrelated to the bond offering); FINRA Letter 
of Acceptance, Waiver and Consent No. 2009016275601 (February 8, 
2011) (finding that dealer that also engaged in financial advisory 
activities violated a number of MSRB rules, including engaging in 
municipal securities business notwithstanding a triggering 
contribution under Rule G-37, and making payments to unaffiliated 
individuals for the solicitation of municipal securities business 
under Rule G-38). Criminal authorities have also brought actions 
against a former Philadelphia treasurer, municipal securities 
professionals and a third-party intermediary seeking business on 
behalf of such municipal securities professionals for their 
participation in a complex scheme involving ``pay to play'' 
practices. See, e.g., Indictment U.S. v. White, et al., No. 04-370 
(E.D. Pa. June 29, 2004). In addition, the Commission brought and 
settled charges against the former treasurer of the State of 
Connecticut and other parties alleging that engagements to provide 
investment advisory services were awarded as the quid pro quo for 
payments made to officials that were funneled through third-party 
intermediaries. See, e.g., SEC v. Paul J. Silvester, et al., 
Litigation Release No. 16759 (October 10, 2000); Litigation Release 
No. 20027 (March 2, 2007); Litigation Release No. 19583 (March 1, 
2006); Litigation Release No. 16834 (December 19, 2000). Similar 
activity in connection with investment advisers seeking to manage 
the assets of the New York State Common Retirement Fund resulted in 
guilty pleas to criminal charges and remedial sanctions in parallel 
administrative orders. See, e.g., SEC v. Henry Morris, et al., 
Litigation Release No. 22938 (March 10, 2014). For further instances 
of ``pay to play'' activity involving third-party intermediaries and 
solicitors that may now be defined as municipal advisors, see Order 
Adopting IA Pay to Play Rule, 75 FR at 41019-20.
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    The proposed rule change is expected to aid municipal entities that 
choose to engage municipal advisors in connection with their issuance 
of municipal securities as well as transactions in municipal financial 
products by promoting higher ethical and professional standards of such 
advisors and helping to ensure that the selection of such municipal 
advisors is based on merit and not tainted by quid pro quo corruption 
or the appearance thereof. The MSRB also believes that, by applying the 
proposed rule change to municipal advisor third-party solicitors, the 
proposed rule change will level the playing field upon which dealers 
and municipal advisors (and the third-party dealer, municipal advisor 
and investment adviser clients of such solicitors) compete because all 
such persons would be subject to the same or similar requirements.
    These parties play a valuable role in the municipal securities 
market, in the course of providing financial and related advice or in 
underwriting the securities. The mere perception of quid pro quo 
corruption among such professionals may breed actual quid pro quo 
corruption as municipal advisors, dealers, investment advisers and ME 
officials alike may feel compelled to take part in ``pay to play'' 
practices in order to avoid a competitive disadvantage as compared to 
similarly situated parties they believe do engage in such practices. 
The appearance of quid pro quo corruption in the selection of municipal 
securities professionals also diminishes investor confidence in the 
ability or willingness of a dealer, municipal advisor or investment 
adviser to faithfully fulfill its obligations to municipal entities and 
the investing public. Such apparent quid pro quo corruption also 
creates artificial impediments to a free and open market as 
professionals that believe that ``pay to play'' practices are a 
prerequisite to the receipt of government business but are unwilling or 
unable to engage in such practices may be reluctant to enter the market 
and provide to issuers and investors their honest, and potentially more 
qualified, services. The proposed rule change is expected to curb such 
quid pro quo corruption and the appearance thereof.
    Further, the disclosure requirements contained in the proposed rule 
change will serve to give regulators and the market, including 
investors, transparency regarding the political contributions of 
municipal advisors and thereby promote market integrity. The combined 
effect of the ban on business provisions and the disclosure provisions 
will serve to reduce the appearance of quid pro quo corruption in the 
municipal market and enhance the ability of the MSRB and other 
regulators to detect and deter fraudulent or manipulative acts and 
practices in connection with the awarding of municipal securities 
business and municipal advisory business (and engagements to provide 
investment advisory services to the extent a municipal advisor third-
party solicitor is used to obtain or retain such business).
    Additionally, upon a finding by the Commission that the proposed 
rule change imposes at least substantially equivalent restrictions on 
municipal advisors as the IA Pay to Play Rule imposes on investment 
advisers and that the proposed rule change is consistent with the 
objectives of the IA Pay to Play Rule, the proposed rule change would 
serve as a means to permit investment advisers to continue to pay 
municipal advisors for the solicitation of investment advisory

[[Page 81727]]

services on behalf of the investment adviser.\103\
---------------------------------------------------------------------------

    \103\ The IA Pay to Play Rule prohibits an investment adviser 
and its covered associates from providing or agreeing to provide 
payment to any person to solicit a government entity for investment 
advisory services unless the person is, in relevant part, a 
``regulated person.'' See 17 CFR 275.206(4)-5(a)(2)(i)(A). A 
``regulated person'' includes a municipal advisor, provided that 
MSRB rules prohibit such municipal advisors from engaging in 
distribution or solicitation activities if certain political 
contributions have been made; and the Commission finds that such 
rules impose substantially equivalent or more stringent restrictions 
on municipal advisors as the IA Pay to Play Rule imposes on 
investment advisers and that such rules are consistent with the 
objectives of the IA Pay to Play Rule (the ``SEC finding of 
substantial equivalence''). See 17 CFR 275.206(4)-5(f)(9)(iii). The 
compliance date for the IA Pay to Play Rule's ban on third-party 
solicitation is July 31, 2015. See Investment Advisers Act Release 
No. 4129 (June 25, 2015), 80 FR 37538 (July 1, 2015). However, the 
staff of the SEC's Division of Investment Management has indicated 
that until the later of (i) the effective date of a FINRA ``pay to 
play'' rule that obtains the SEC finding of substantial equivalence 
or (ii) the effective date of an MSRB ``pay to play'' rule that 
obtains the SEC finding of substantial equivalence, it would not 
recommend enforcement action to the Commission against an investment 
adviser or its covered associates for violation of the IA Pay to 
Play Rule's ban on third-party solicitation. See SEC, Staff 
Responses to Questions About the Pay to Play Rule, at Question I.4, 
available at https://www.sec.gov/divisions/investment/pay-to-play-faq.htm. The proposed rule change is intended to impose at least 
substantially equivalent standards on municipal advisors to the 
standards imposed on investment advisers under the IA Pay to Play 
Rule for purposes of the SEC finding of substantial equivalence, 
however, such a finding may be made only by the Commission.
---------------------------------------------------------------------------

    Section 15B(b)(2)(L)(iv) of the Act \104\ requires that rules 
adopted by the Board
---------------------------------------------------------------------------

    \104\ 15 U.S.C. 78o-4(b)(2)(L)(iv).

not impose a regulatory burden on small municipal advisors that is 
not necessary or appropriate in the public interest and for the 
protection of investors, municipal entities, and obligated persons, 
---------------------------------------------------------------------------
provided that there is robust protection of investors against fraud.

    The MSRB believes that the proposed rule change is consistent with 
Section 15B(b)(2)(L)(iv) of the Exchange Act. While the proposed rule 
change would affect all municipal advisors, including small municipal 
advisors, the MSRB believes it is necessary and appropriate to address 
``pay to play'' practices in the municipal market. The MSRB believes 
that the approach taken under the proposed rule change (which has for 
more than two decades applied to dealers of diverse sizes) would 
appropriately accommodate the diversity of the municipal advisor 
population, including small municipal advisors and sole 
proprietorships.
    The MSRB recognizes that municipal advisors would incur costs to 
meet the requirements set forth in the proposed rule change. These 
costs may include additional compliance and recordkeeping costs 
associated with initially establishing compliance regimes and ongoing 
compliance, as well as separate legal and compliance fees associated 
with the triggering of a ban on applicable business or an application 
for relief from such a ban. Small municipal advisors, however, will 
necessarily have fewer personnel whose contributions may trigger 
disclosure obligations or subject the municipal advisory firm to a ban 
on applicable business under the proposed rule change. Small municipal 
advisors can also reasonably be expected to have relatively fewer 
municipal advisory engagements than larger firms and fewer municipal 
entities with whom they engage in municipal advisory business. Thus, 
their compliance costs are likely to be significantly lower than 
relatively larger municipal advisors.
    The MSRB also believes that the proposed amendments to Rule G-37(i) 
regarding application for an exemption from a ban on applicable 
business and proposed amendments to Rule G-37(j) regarding the 
automatic exemption from a ban on applicable business provide 
significant relief to all municipal advisors, including small municipal 
advisors, from the consequences of an inadvertent triggering 
contribution. In particular, the automatic exemption provision would 
provide a regulated entity relief from a ban on applicable business 
without the need to resort to a formal application for an exemption, 
which may involve the use of outside legal counsel or compliance 
professionals.
    Additionally, because small municipal advisors can be reasonably 
expected to employ fewer personnel and/or have fewer engagements, they 
are likely to have less information to report to the MSRB under the 
proposed rule change. Further, municipal advisors that meet the 
standards to file a Form G-37x in lieu of a Form G-37 may avail 
themselves of relief from all other reporting obligations as long as 
they continue to meet those standards. Thus, the MSRB believes that the 
proposed rule change is consistent with the Dodd-Frank Act's provision 
with respect to burdens that may be imposed on small municipal 
advisors.
    Finally, the MSRB believes that the proposed rule change will allow 
small municipal advisors to compete based on merit rather than their 
ability or willingness to make political contributions, which may be a 
significant benefit relative to the status quo.

    The MSRB also believes that the proposed rule change is 
consistent with Section 15B(b)(2)(G) of the Exchange Act,\105\ which 
provides that the MSRB's rules shall prescribe records to be made 
and kept by municipal securities brokers, municipal securities 
dealers, and municipal advisors and the periods for which such 
records shall be preserved.
---------------------------------------------------------------------------

    \105\ 15 U.S.C. 78o-4(b)(2)(G).

    The proposed rule change would require, under proposed amendments 
to Rule G-8, that a municipal advisor make and keep certain records 
concerning political contributions and the municipal advisory business 
in which the municipal advisor engages. Proposed amendments to Rule G-9 
would require that these records be preserved for a period of at least 
six years. The MSRB believes that the proposed amendments to Rules G-8 
and G-9 related to recordkeeping and records preservation will promote 
compliance and facilitate enforcement of the proposed amendments to 
Rule G-37.

B. Self-Regulatory Organization's Statement on Burden on Competition

    Section 15B(b)(2)(C) of the Exchange Act \106\ requires that MSRB 
rules not be designed to impose any burden on competition not necessary 
or appropriate in furtherance of the purposes of the Act. In addition, 
Section 15B(b)(2)(L)(iv) of the Exchange Act provides that MSRB rules 
may
---------------------------------------------------------------------------

    \106\ 15 U.S.C. 78o-4(b)(2)(C).

not impose a regulatory burden on small municipal advisors that is 
not necessary or appropriate in the public interest and for the 
protection of investors, municipal entities, and obligated persons, 
provided that there is robust protection of investors against 
fraud.\107\
---------------------------------------------------------------------------

    \107\ 15 U.S.C. 78o-4(b)(2)(L)(iv).
---------------------------------------------------------------------------

    The Board's Policy on the Use of Economic Analysis in Rulemaking, 
according to its transitional terms, does not apply to the Board's 
consideration of the proposed rule change, as the rulemaking process 
for the proposed rule change began prior to the adoption of the policy. 
However, the policy can still be used to guide the consideration of the 
proposed rule change's burden on competition. The MSRB also considered 
other economic impacts of the proposed rule change and has addressed 
any comments relevant to these impacts in other sections of this 
filing.
    The Board has evaluated the potential impacts of the proposed rule 
change, including in comparison to reasonable alternative regulatory 
approaches, relative to the baseline. The MSRB does not believe that 
the proposed rule change will impose any additional burdens, relative 
to the baseline, that are not necessary or appropriate in

[[Page 81728]]

furtherance of the purposes of the Act. To the contrary, the MSRB 
believes that the proposed rule change is likely to increase fair 
competition.
    ``Pay to play'' practices may interfere with the process by which 
municipal advisors or the third-party clients of a municipal advisor 
third-party solicitor are chosen since the receipt of contributions 
made by such persons might influence an ME official to award business 
based, not on merit, but on the contributions received. ``Pay to play'' 
practices may also raise artificial barriers to entry and detract from 
fair competition among municipal advisors and the third-party clients 
of municipal advisor third-party solicitors.\108\
---------------------------------------------------------------------------

    \108\ Because of the illicit nature of the activity, quantifying 
the extent of quid pro quo corruption is difficult. In its order 
providing for the registration of municipal advisors, however, the 
Commission noted that the new municipal advisor registration and 
regulatory regime is intended to mitigate some of the problems 
observed with the conduct of some municipal advisors, including 
``pay to play'' practices. See Order Adopting SEC Final Rule, 78 FR 
at 67469.
---------------------------------------------------------------------------

    The MSRB believes that the proposed rule change will make it more 
likely that municipal advisors (and the third-party clients of a 
municipal advisor third-party solicitor) will be selected based on 
merit and cost, rather than on contributions to political officials. By 
serving to level the playing field upon which municipal advisors 
compete for business and solicit business for others, the proposed rule 
change will help curb manipulation of the market for municipal advisory 
services (and municipal securities business and investment advisory 
services, to the extent a municipal advisor third-party solicitor is 
used to obtain or retain such business). Municipal entities are, in 
turn, more likely to receive higher-quality advice and lower costs in 
procuring such business and services.
    As noted by the SEC in the IA Pay to Play Approval Order, the 
efficient allocation of advisory business may be enhanced when it is 
awarded to investment advisers that compete on the basis of price, 
quality of performance and service and not on the influence of 
political contributions.\109\ It is a similar case with the awarding of 
municipal advisory business to municipal advisors and municipal 
securities business to dealers. The SEC also noted in the same approval 
order that investment advisory firms, and particularly smaller 
investment advisory firms, will be able to compete based on merit 
rather than their ability or willingness to make political 
contributions.\110\ The SEC's reasoning is equally applicable to the 
potential impact on municipal advisors and dealers of the proposed rule 
change. A merit-based process is likely to result in a more efficient 
allocation of professional engagements, compared to the baseline state.
---------------------------------------------------------------------------

    \109\ See Order Adopting IA Pay to Play Rule, at 41053.
    \110\ See id.
---------------------------------------------------------------------------

    In addition, the proposed rule change subjects municipal advisory 
activities to a regulatory regime comparable to the regulatory regimes 
for other entities and persons in the financial services industry, in 
particular those such as dealers or investment advisers who provide 
services to municipal entities and are subject to existing ``pay to 
play'' rules including Rule G-37 and the IA Pay to Play Rule, 
respectively.
    The MSRB considered whether costs associated with the proposed rule 
change, relative to the baseline, could affect the competitive 
landscape. The MSRB recognizes that the compliance, supervisory and 
recordkeeping requirements associated with the proposed rule change may 
impose costs and that those costs may disproportionately affect 
municipal advisors that are not also broker-dealers or that have not 
otherwise previously been regulated in this area. During the comment 
period, the MSRB sought information that would support quantitative 
estimates of these costs, but did not receive any relevant data.
    The MSRB believes that the SEC estimates of the costs associated 
with implementing the IA Pay to Play Rule may provide a guide to the 
initial, one-time costs that previously unregulated municipal advisors 
might incur under the proposed rule change. Because even the largest 
municipal advisory firms are generally smaller than large investment 
advisory firms, however, the MSRB believes the costs of compliance 
associated with the proposed rule change will be lower than those 
associated with the IA Pay to Play Rule.
    The MSRB also recognizes that the proposed rule change may cause 
some firms--either because they have engaged in competition primarily 
on the basis of political contributions or because of the costs of 
compliance--to exit the market. Some municipal advisors may consolidate 
with other municipal advisors in order to benefit from economies of 
scale (e.g., by leveraging existing compliance resources of a larger 
firm) rather than to incur separately the costs associated with the 
proposed rule change. While this might reduce the number of firms 
competing for business, consolidated firms might compete more 
effectively on price, which would offer benefits to municipal entities. 
Some firms wishing to enter the market may find the costs of compliance 
create barriers to entry. Finally, some dealer-municipal advisors may 
separate and form dealer-only and municipal advisor-only firms to avoid 
the ``cross-ban.'' If separations result in lost efficiencies of scope, 
such firms may compete less effectively on price--potentially raising 
issuance costs, but the presence of such firms also may potentially 
foster greater competition, particularly among smaller firms.
    The MSRB recognizes that small municipal advisors and sole 
proprietors may not employ full-time compliance staff and that the cost 
of ensuring compliance with the requirements of the proposed rule 
change may be proportionally higher for these smaller firms, 
potentially leading to exit from the industry or consolidation. 
However, as the SEC recognized in its Order Adopting SEC Final Rule, 
the market for municipal advisory services is likely to remain 
competitive despite the potential exit of some municipal advisors 
(including small entity municipal advisors) or the consolidation of 
municipal advisors.\111\
---------------------------------------------------------------------------

    \111\ See Order Adopting SEC Final Rule, at 67608.
---------------------------------------------------------------------------

    The MSRB also believes that the proposed amendments to Rule G-37(i) 
regarding application for an exemption from a ban on applicable 
business and proposed amendments to Rule G-37(j) regarding the 
automatic exemption from a ban on applicable business provide 
significant relief to all municipal advisors, including small municipal 
advisors, from the consequences of an inadvertent triggering 
contribution. In particular, the automatic exemption provision would 
provide a regulated entity relief from a ban on applicable business 
without the need to resort to a formal application for an exemption, 
which may involve the use of outside legal counsel or compliance 
professionals.
    Overall, the MSRB believes that the proposed rule will not, on its 
own, significantly change the number or concentration of firms offering 
municipal advisory services and that the increased focus on merit and 
cost will result in a more competitive market.
    The MSRB solicited comment on the potential burdens of the draft 
amendments to Rules G-37, G-8 and G-9 in a notice requesting comment, 
which notice incorporated the MSRB's preliminary economic 
analysis.\112\ The specific comments and the MSRB's responses thereto 
are discussed in Section C.
---------------------------------------------------------------------------

    \112\ MSRB Notice 2014-15, Request for Comment on Draft 
Amendments to MSRB Rule G-37 to Extend its Provisions to Municipal 
Advisors (August 18, 2014) (``Request for Comment'').

---------------------------------------------------------------------------

[[Page 81729]]

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    The MSRB received thirteen comment letters in response to the 
Request for Comment.\113\ The comment letters are summarized below by 
topic and the MSRB's responses are provided.
---------------------------------------------------------------------------

    \113\ Comments were received from American Council of 
Engineering Companies: Letter from David A. Raymond, President & 
CEO, dated October 1, 2014 (``ACEC''); Anonymous Attorney: Email 
from Anonymous, dated October 1, 2014 (``Anonymous''); Bond Dealers 
of America: Letters from Michael Nicholas, Chief Executive Officer, 
dated October 1, 2014 (``First BDA'') and October 8, 2014 (``Second 
BDA'') (together, ``BDA''); Caplin & Drysdale, Chtd.: Letter from 
Trevor Potter and Matthew T. Sanderson, dated September 30, 2014 
(``C&D''); Castle Advisory Company LLC: Email from Stephen Schulz, 
dated August 18, 2014 (``Castle''); Center for Competitive Politics: 
Letter from Allen Dickerson, Legal Director, dated October 1, 2014 
(``CCP''); Dave A. Sanchez: Letter from Dave A. Sanchez, dated 
November 5, 2014 (``Sanchez''); Hardy Callcott: Email from Hardy 
Callcott, dated September 9, 2014 (``Callcott''); National 
Association of Independent Public Finance Advisors: Letter from 
Jeanine Rodgers Caruso, President, dated October 1, 2014 
(``NAIPFA''); Public Citizen, et al.: Letter from Bartlett Naylor, 
Financial Policy Advocate, et al., dated October 1, 2014 (``The 
Public Interest Groups''); Securities Industry and Financial Markets 
Association: Letter from Leslie M. Norwood, Managing Director and 
Associate General Counsel, dated September 30, 2014 (``SIFMA''); and 
WM Financial Strategies: Letter from Joy A. Howard, Principal, dated 
October 1, 2014 (``WMFS'').
---------------------------------------------------------------------------

Support for the Proposed Rule Change
    Most commenters supported to some degree the initiative to extend 
the policies contained in Rule G-37 to municipal advisors. The Public 
Interest Groups stated that, by recognizing that municipal advisors may 
play a key role in underwriting and other municipal funding decisions, 
the MSRB's expansion of the scope of the rule will help promote the 
integrity of the contracting process. BDA supported the objective of 
the draft amendments on the grounds that it would create a level 
playing field between dealers and municipal advisors. SIFMA maintained 
that it is important that all market participants are subject to the 
same rules applicable to political activity, and that the draft 
amendments significantly advance that interest. NAIPFA supported the 
draft amendments without qualification. Sanchez noted the draft 
amendments would address practices that create artificial barriers to 
competition.
    Several commenters expressed support for specific provisions in the 
draft amendments. The Public Interest Groups and CCP supported 
replacing the term ``official of an issuer'' with the new defined term 
``official of a municipal entity.'' CCP further supported the draft 
amendments' creation of different categories of ``officials of a 
municipal entity.'' SIFMA and CCP both expressed support for the 
purpose for which these categories were created--namely, to ensure that 
there is a nexus between a contribution and the awarding of business 
that gives rise to a sufficient risk of corruption, or the appearance 
thereof, to warrant a ban on applicable business.
De Minimis Contributions
    Under draft amended Rule G-37(b)(ii)(A), contributions made by an 
MFP or MAP to an ME official for whom the MFP or MAP is entitled to 
vote would be de minimis and would not trigger a ban on municipal 
securities business or municipal advisory business if such 
contributions made by such MFP or MAP do not, in total, exceed $250 per 
election. Five commenters said that the MSRB should harmonize this de 
minimis exclusion with those set forth for investment advisers under 
the IA Pay to Play Rule,\114\ and two of these five commenters said 
that the de minimis exclusion should be harmonized with those set forth 
for swap dealers under the Swap Dealer Rule.\115\ As described below, 
however, the comments differed with regard to the extent of 
harmonization suggested and the offered rationale for harmonization. 
Two additional commenters opposed any modification to the de minimis 
exclusion.\116\
---------------------------------------------------------------------------

    \114\ See 17 CFR 275.206(4)-5.
    \115\ See 17 CFR 23.451. BDA, C&D, CCP, Callcott and SIFMA 
proposed harmonization with the IA Pay to Play Rule. BDA and SIFMA 
also proposed harmonization with the Swap Dealer Rule.
    \116\ NAIPFA and Sanchez opposed modification to the de minimis 
exclusion.
---------------------------------------------------------------------------

Raising the Threshold for the Existing De Minimis Exclusion
    The five commenters that supported greater harmonization agreed 
that Rule G-37 should be modified to raise the threshold from $250 to 
$350 for the existing de minimis exclusion under draft amended Rule G-
37(b)(ii).
    SIFMA, BDA and C&D supported a $350 de minimis threshold 
principally on the basis of promoting more efficient administration of 
federal ``pay to play'' programs and reducing the compliance burdens on 
those regulated entities that are also subject to the IA Pay to Play 
Rule and the Swap Dealer Rule \117\--both of which have a de minimis 
threshold of $350 for a contribution to an official for whom the 
contributor is entitled to vote.\118\ SIFMA expressed the view that 
both the $250 de minimis threshold in Rule G-37 as well as the $350 de 
minimis threshold utilized in the IA Pay to Play Rule \119\ appear to 
be somewhat arbitrary. However, it argued, to the extent a de minimis 
amount is exempted, it should be uniform across the federal ``pay to 
play'' regimes. In contrast, NAIPFA expressed unqualified support for 
the draft amendments and specifically opposed any increase in the de 
minimis threshold of $250. Sanchez also opposed any change to the de 
minimis threshold, commenting that Rule G-37 has been an important tool 
in enhancing free and fair competition and that a change in the de 
minimis threshold would provide a distinct and unfair advantage to 
large financial services firms over smaller firms.
---------------------------------------------------------------------------

    \117\ C&D also noted that a $350 threshold would partly account 
for the effects of inflation since the Board first established $250 
as the threshold in 1994.
    \118\ See 17 CFR 275.206(4)-5(b)(1); see also 17 CFR 
23.451(b)(2)(i)(A).
    \119\ See id.
---------------------------------------------------------------------------

    CCP and Callcott framed their arguments for a $350 de minimis 
threshold based on First Amendment concerns. Because the IA Pay to Play 
Rule \120\ appeared to embody a determination that a de minimis 
threshold of $350 was sufficient to prevent quid pro quo corruption, or 
the appearance thereof, they suggested the MSRB's proposed $250 de 
minimis threshold could not be ``narrowly tailored to achieve a 
compelling government interest.'' While CCP was skeptical as to whether 
the de minimis thresholds under the IA Pay to Play Rule are consistent 
with constitutional requirements, it expressed concern that the MSRB 
did not articulate why these thresholds are not sufficient for purposes 
of Rule G-37. Callcott argued that, although Rule G-37's $250 de 
minimis threshold was upheld by the DC Circuit in Blount \121\ in 1995, 
the rule cannot continue to withstand constitutional scrutiny in the 
wake of the IA Pay to Play Rule \122\ and Supreme Court cases decided 
since Blount, including McCutcheon v. FEC. \123\ In contrast, Sanchez 
stated that unlike some of the recent Supreme Court rulings on 
political contributions, Rule G-37 is narrowly tailored to only affect 
persons who seek specific types of business with municipal entities and 
not citizens at large.
---------------------------------------------------------------------------

    \120\ Id.
    \121\ Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995), cert. denied, 
517 U.S. 1119 (1996).
    \122\ See 17 CFR 275.206(4)-5.
    \123\ McCutcheon v. FEC, 572 U.S. __, 134 S. Ct. 1434 (2014) 
(``McCutcheon'').
---------------------------------------------------------------------------

    The MSRB is sensitive to the effect of differing ``pay to play'' de 
minimis thresholds for dealers and municipal advisors that also operate 
in the

[[Page 81730]]

investment advisory market or the swap market. However, the Board 
believes that, to the extent possible and appropriate, consistency 
between the regulatory treatment of dealers and municipal advisors, who 
operate in the same market and typically with the same clients, is 
vital to curb quid pro quo corruption or the appearance thereof in the 
municipal market. Dealers have been subject to the requirements of Rule 
G-37 for more than two decades, and as commenters have noted, its 
terms, including its de minimis threshold, have been effective in 
combating corruption or the appearance of corruption in connection with 
the awarding of municipal securities business to dealers.\124\
---------------------------------------------------------------------------

    \124\ See comment letter from Sanchez; comment letter from 
SIFMA.
---------------------------------------------------------------------------

    Moreover, as acknowledged by several of the commenters, in Blount, 
the D.C. Circuit previously determined that Rule G-37 was 
constitutional on the ground that the rule was narrowly tailored to 
serve a compelling government interest.\125\ The court found the 
interest in protecting investors from fraud and protecting underwriters 
from unfair, corrupt practices to be compelling.\126\ The MSRB does not 
believe that differing de minimis threshold determinations for other 
markets precludes a determination that the MSRB's de minimis threshold 
for the municipal market is narrowly tailored. The MSRB also believes 
that commenter references to recent Supreme Court decisions are 
misplaced. Those cases, for example, did not address regulations aimed 
at preventing quid pro quo corruption or the appearance thereof with 
respect to individuals engaged in securities-related business with 
municipal entities, or even regulations regarding individuals engaged 
in business with a governmental entity more generally. Additionally, 
recent jurisprudence relating to political contributions and government 
contractors implicitly contradicts the notion that Blount does not 
survive McCutcheon. Wagner, et al., v. FEC,\127\ decided en banc by the 
U.S. Court of Appeals for the District of Columbia Circuit after 
McCutcheon, unanimously upheld a provision in the Federal Election 
Campaign Act that prohibits contributions made in connection with 
federal elections by federal government contractors. In upholding the 
provision, the Wagner court repeatedly cited Blount with approval, 
noting that it upheld Rule G-37 against First Amendment challenge \128\ 
and that it found Rule G-37 to be `` `closely drawn,' in part because 
it `restrict[ed] a narrow range of . . . activities for a relatively 
short period of time,' and those subject to the rule were `not in any 
way restricted from engaging in the vast majority of political 
activities.' '' \129\ Accordingly, the MSRB has determined to extend 
the current de minimis threshold applicable to dealers in Rule G-37 to 
municipal advisors through the proposed rule change.
---------------------------------------------------------------------------

    \125\ See Blount, 61 F.3d at 944, 947-48.
    \126\ See id. at 944.
    \127\ 793 F.3d 1 (D.C. Cir. 2015) (en banc) (``Wagner'').
    \128\ Id. at n. 19.
    \129\ Id. at 26 (quoting Blount, 61 F.3d at 947-48).
---------------------------------------------------------------------------

Adding an Additional De Minimis Exclusion
    Three of the five commenters that supported greater harmonization 
also urged the MSRB to add an additional de minimis exclusion for 
contributions made by an MFP or MAP to an ME official for whom the MFP 
or MAP is not entitled to vote if such contributions do not, in total, 
exceed $150 per election.\130\ These commenters based their arguments 
on First Amendment concerns. C&D cited statements by the Commission 
when it adopted the IA Pay to Play Rule,\131\ noting that the 
Commission acknowledged that the $150 limit for contributions to 
officials for whom the investment adviser could not vote was justified 
because non-residents might have legitimate interests in those 
elections, such as the interest of a resident of a metropolitan area in 
the city in which the person works. C&D suggested that a similar 
rationale would apply with respect to personnel of dealers and 
municipal advisors. Similarly, CCP argued that the Supreme Court's 
ruling in McCutcheon, reiterating the importance of associational 
rights, would make little sense if bans on out-of-district 
contributions were constitutional. Callcott noted that the ``narrow 
tailoring'' conclusion of Blount cannot continue to survive and noted 
that the lack of a de minimis threshold for contributions to ME 
officials for whom an MAP is not entitled to vote is particularly 
vulnerable to First Amendment challenge.
---------------------------------------------------------------------------

    \130\ C&D, CCP and Callcott proposed this approach.
    \131\ See comment letter from C&D, citing Order Adopting IA Pay 
to Play Rule, at 41035.
---------------------------------------------------------------------------

    In contrast, BDA, SIFMA and Sanchez did not advocate establishing a 
second de minimis contribution exclusion. BDA expressed concern that 
such an extension would create considerable chaos in the municipal 
securities market, and BDA and Sanchez both noted that the current 
approach in Rule G-37 is accepted and appears to be working well. 
Specifically speaking to recent Supreme Court jurisprudence, Sanchez 
expressed the view that Rule G-37 is narrowly tailored to only affect 
persons who seek specific types of business with municipal entities and 
not citizens at large.
    As discussed above, the MSRB has determined to extend the current 
de minimis threshold applicable to dealers in Rule G-37 to municipal 
advisors through the proposed rule change. Current Rule G-37 and the 
proposed amendments are intended to address quid pro quo corruption and 
the appearance thereof in connection with the awarding of municipal 
securities business, municipal advisory business, and engagements to 
provide investment advisory services. Even in the absence of actual 
quid pro quo corruption, contributions to officials for whom an MFP or 
MAP is not entitled to vote are at heightened risk of the appearance of 
quid pro quo corruption, as the MFP or MAP's non-quid pro quo interest 
in that election is less likely to be immediately apparent to the 
public. Rule G-37 has previously withstood constitutional scrutiny and 
the proposed rule change would not amend the current de minimis 
thresholds in Rule G-37. The MSRB agrees with Sanchez that the proposed 
amendments to Rule G-37 are narrowly tailored. The MSRB notes again 
that comments based upon, or referring to, recent Supreme Court 
decisions are misplaced. Those cases presented different facts and 
circumstances and, for example, did not address regulations aimed at 
preventing quid pro quo corruption or the appearance thereof with 
respect to individuals engaged in securities-related business with 
municipal entities, or even regulations regarding individuals engaged 
in business with a governmental entity as a general matter. Further, as 
described above, Wagner, decided since McCutcheon, upheld a complete 
ban with no de minimis exclusion on contributions to federal campaigns 
by federal contractors. This suggests that Rule G-37's more tailored 
temporary limitation on business activities resulting from non-de 
minimis contributions to ME officials with the ability to influence the 
awarding of business to the regulated entity (and in the case of a 
municipal advisor third-party solicitor, the regulated entity clients 
or investment adviser clients of the municipal advisor third-party 
solicitor) would also survive constitutional scrutiny.

[[Page 81731]]

Look-Back
    SIFMA requested that the MSRB revise the ``look-back'' for MFPs and 
MAPs, which would provide that a regulated entity would be subject to a 
ban on applicable business for a period of two years from the making of 
a triggering contribution, even if such contributions were made by a 
person before he or she became a ``municipal finance representative'' 
or ``municipal advisor representative'' of the regulated entity. Under 
SIFMA's proposed revision, a new exclusion would be added to the 
``look-back'' for a contribution made by an individual that, at the 
time of the contribution, was subject to either the IA Pay to Play Rule 
or the Swap Dealer Rule if the contribution was made within the de 
minimis exceptions under those rules.
    The MSRB has determined not to adopt SIFMA's proposed exclusion. 
The goal of Rule G-37, and the proposed amendments, is to address quid 
pro quo corruption or the appearance thereof when a contribution is 
made to an ME official and business of that municipal entity is awarded 
to the contributor. The MSRB believes that the risk of such corruption 
or the appearance of such corruption in the municipal securities market 
is not diminished simply because a contribution does not trigger a ban 
in a different market under a different regulatory scheme. The 
exclusion proposed by SIFMA would, in effect, create a bifurcated de 
minimis threshold: One for MFPs and MAPs that were formerly investment 
advisers or swap professionals and another for all other MFPs and MAPs. 
As stated above, the MSRB believes that it is important to have a 
consistent de minimis threshold applicable to all regulated entities in 
the municipal market, as they operate in the same market and typically 
with the same clients.
Official of a Municipal Entity
    WMFS suggested that the MSRB remove the concept of the different 
types of ME officials from the draft definition of ``official of a 
municipal entity.'' \132\ WMFS stated that it was not aware of any 
elected official that would be able to influence the selection of a 
municipal advisor without also having the ability to influence the 
selection of an underwriter. Thus, in its view, the draft amendments to 
this definition would unnecessarily complicate the rule and could 
create an enforcement loophole.
---------------------------------------------------------------------------

    \132\ The draft amendments included two categories of ME 
officials: an ``official with dealer selection influence'' and an 
``official with municipal advisor selection influence.'' As 
described above, the proposed rule change retains these categories 
and adds an additional category of ME official, an ``official of a 
municipal entity with investment adviser selection influence.'' See 
proposed Rule G-37(g)(xvi)(C).
---------------------------------------------------------------------------

    CCP, by contrast, welcomed the constitutional ``tailoring'' of the 
definition of ``official of a municipal entity'' through the creation 
of different categories of ME officials, although it suggested the 
definition was otherwise overbroad and vague. CCP noted that the 
definition of the term ``official of a municipal entity'' would extend 
to losing candidates who ultimately do not play a role in the selection 
of any dealer or municipal advisor, and, thus pose ``little to no 
danger of pay-to-play corruption.''
    The MSRB recognizes that it may be uncommon for an ME official to 
have the ability to influence the selection of only one type of 
professional. However, the MSRB has not received any comments that 
categorically state, much less demonstrate, that there are no such 
officials. Further, as CCP and other commenters acknowledged, the 
categories of ME officials are designed to narrowly tailor the rule to 
ensure that there is a nexus between a contribution made to an ME 
official and the ability of that ME official to influence the awarding 
of business to the contributor's firm (or in the case of a municipal 
advisor third-party solicitor, a regulated entity client or investment 
adviser client). With regard to CCP's remaining arguments, apart from 
the creation of the separate categories and the renaming of the 
``official of an issuer'' term to ``official of a municipal entity,'' 
all other elements of the longstanding ``official of an issuer'' 
definition are unchanged from that found in current Rule G-37. The fact 
that losing candidates ultimately have no influence in the selection of 
professionals does not avoid the potential appearance of quid pro quo 
corruption in the case of contributions to candidates. Thus, the MSRB 
has determined not to revise the definition of ``official of a 
municipal entity'' in response to the comments received.
Cross-Bans
    SIFMA stated that the cross-ban provision in draft amended Rule G-
37(b)(i)(C) (proposed paragraph (b)(i)(D)) should be eliminated. SIFMA 
argued that the cross-ban provision is overly broad and does not 
comport with the MSRB's stated goal of requiring a link between a 
triggering contribution and the business banned by that contribution.
    In contrast, The Public Interest Groups supported the cross-ban 
provision, noting that otherwise permitting contributions from one line 
of business of a dealer-municipal advisory firm to an ME official that 
has influence over awarding business to the other line of business 
within the same firm would invite firms to ``create legal fictions for 
[contributions] between its dealer and advisory services.'' Sanchez 
stated that the cross-ban would be appropriate for dealer-municipal 
advisors because many individuals within such firms engage in both 
dealer and municipal advisory activity, and to the extent that they do 
not, the business lines can be very closely related. Thus, Sanchez 
concluded, a contribution from persons or entities associated with one 
line of business of a dealer-municipal advisory firm and the awarding 
of business to the other line of business within the same firm will 
usually constitute quid pro quo corruption or give rise to the 
appearance thereof.
    The MSRB does not believe that the cross-ban provision is 
inconsistent with the MSRB's goal of requiring a link between a ban on 
applicable business and a contribution made to an ME official with the 
ability to influence the awarding of that type of business. On the 
contrary, the cross-ban is a special provision narrowly tailored to 
ensure that the only business a dealer-municipal advisor will be 
prohibited from engaging in during the two-year period is the business 
that the ME official to whom the contribution was made had the ability 
to influence. While the cross-ban would subject a dealer-municipal 
advisor to a ban of a scope consistent with the type of influence held 
by the ME official to whom the contribution was made, the scope of the 
ban would not be dependent on the particular line of business with 
which the contributor is associated. The MSRB believes that this is the 
appropriate result given that, even though a dealer-municipal advisor 
may have two lines of business, the entity should be considered a 
single economic unit.
    Moreover, the goal of the cross-ban is to address actual quid pro 
quo corruption or its appearance. The comments submitted by Sanchez and 
The Public Interest Groups support the view that there is a public 
perception of quid pro quo corruption when business is awarded to a 
dealer-municipal advisor following the making of a contribution to an 
ME official with the ability to influence the selection of that firm 
for such business. These comments further support the MSRB's view that 
this appearance of quid pro quo corruption is not dependent on the 
particular line of business with which the contributor is associated.

[[Page 81732]]

Municipal Advisor Third-Party Solicitors
    Under draft amended Rule G-37(b)(i)(A)(2) and (b)(i)(B)(2) 
(proposed paragraph (b)(i)(C)(2)), the triggering contributions made to 
an ME official by a municipal advisor third-party solicitor could 
trigger a ban on municipal securities business for a dealer that 
engaged the solicitor, or a ban on municipal advisory business for a 
municipal advisor that engaged the solicitor. SIFMA opposed these 
provisions, arguing that they would ``turn back a well-established 
precept that market participants do not control third parties.'' If not 
removed, SIFMA suggested, alternatively, that these provisions impose a 
ban only when the contribution is made to an ME official with selection 
influence over the type of business the solicitor was engaged to 
solicit.
    The MSRB does not believe that the imposition of a two-year ban on 
a dealer client or municipal advisor client under these provisions as a 
result of political contributions made by an engaged municipal advisor 
third-party solicitor (or its MAP or a PAC controlled by either the 
municipal advisor third-party solicitor or an MAP of the municipal 
advisor third-party solicitor) is inappropriate or onerous. In order to 
achieve the purposes of the rule, the MSRB believes the two-year ban 
must be extended to apply to such contributions and has determined not 
to substantively amend the provision as suggested by SIFMA.
    These provisions are narrowly tailored in that they would subject 
the regulated entity client to a ban on business with a municipal 
entity only when the regulated entity client engages a municipal 
advisor third-party solicitor to solicit a municipal entity for 
business on behalf of the regulated entity. A regulated entity may have 
a number of means available to help prevent its municipal advisor 
third-party solicitor from making triggering contributions, including 
as SIFMA identified, contractual provisions and the training of 
solicitor personnel. While such actions may not guarantee compliance 
with the proposed rule change, in such situations, regulated entity 
clients could possibly avail themselves of an automatic exemption from 
a ban on business under section (j), as amended by the proposed 
amendments to Rule G-37. Moreover, if a regulated entity becomes 
subject to a ban on business in such circumstances, and requests 
exemptive relief from the relevant agency under proposed Rule G-37(i), 
the extent to which, prior to the triggering contribution, the 
regulated entity developed and instituted procedures reasonably 
designed to ensure compliance with the rule, including procedures 
designed to ensure the compliance of any engaged municipal advisor 
third-party solicitor, would be among the factors that would be 
considered by the agency in determining whether to grant such exemptive 
relief.
    The MSRB understands SIFMA's suggestion that a ban for a regulated 
entity client should apply only when the municipal advisor third-party 
solicitor's triggering contribution is made to an ME official with 
selection influence over the type of business the solicitor was engaged 
to solicit. However, as with the cross-ban provision, the goal of the 
municipal advisor third-party solicitor provisions is to address actual 
quid pro quo corruption or its appearance. Just as non-de minimis 
contributions from a person associated with a different line of 
business of a dealer-municipal advisory firm can present an appearance 
of quid pro quo corruption, so too do the contributions of a party 
specifically hired to solicit the municipal entity for business on 
behalf of the dealer-municipal advisor. Similar to the cross-ban, the 
arising of an appearance of quid pro quo corruption is not dependent on 
the particular line of business the solicitor was engaged to solicit.
Municipal Advisor Representative
    SIFMA suggested that the MSRB narrow the scope of persons that 
could be a ``municipal advisor representative'' under draft amended 
Rule G-37(g)(iii) and thus could trigger a ban on applicable business 
or disclosure obligations for a municipal advisor. In SIFMA's view, 
only an associated person of a municipal advisor that is ``primarily 
engaged'' in municipal advisory activities should be a municipal 
advisor representative. By revising the term ``municipal advisor 
representative'' in this manner, SIFMA commented, the term would align 
with the relevant term for dealers and would move closer to the more 
narrowly defined group of persons subject to ``pay to play'' regulation 
under the IA Pay to Play Rule and the Swap Dealer Rule. SIFMA also 
commented that there is little risk that the political contributions of 
persons not ``primarily engaged in'' municipal advisory activities 
would create an appearance of quid pro quo corruption.
    The MSRB has determined not to narrow the ``municipal advisor 
representative'' definition as suggested by SIFMA. Under the proposed 
rule change, the term ``municipal advisor representative'' would cross-
reference the MSRB's ``municipal advisor representative'' definition 
under its municipal advisor professional qualification rules,\133\ 
which itself is based on the scope of the definition of ``municipal 
advisor'' in the Dodd-Frank Act \134\ and relevant rules and 
regulations thereunder. Under the SEC Final Rule, ``municipal advisor'' 
is to be broadly construed, and is not limited by the standard that a 
person must be ``primarily engaged in'' certain activities to be a 
municipal advisor.\135\ Further, in granting authority to the Board to 
regulate municipal advisors, including regulation with respect to ``pay 
to play'' practices, Congress appears to have contemplated that all 
municipal advisors would be subject to ``pay to play'' regulation by 
the Board, regardless of the degree to which they engage in such 
municipal advisory activities.\136\ Moreover, the MSRB's approach under 
the proposed rule change would create more consistency between defined 
terms in MSRB rules.
---------------------------------------------------------------------------

    \133\ See Rule G-3(d)(i).
    \134\ See 15 U.S.C. 78o-4(e)(4).
    \135\ See generally SEC Final Rule; Order Adopting SEC Final 
Rule.
    \136\ As explained in the Request for Comment, the regulation of 
municipal advisors is, as the SEC has recognized, generally intended 
to address problems observed with the unregulated conduct of some 
municipal advisors, including ``pay to play'' practices. See Order 
Adopting SEC Final Rule, at 67469. ``Indeed, Congress determined to 
grant rulemaking authority over municipal advisors to the MSRB, in 
part, because it already `has an existing, comprehensive set of 
rules on key issues such as pay-to-play . . . and that consistency 
would be important to ensure common standards.''' Request for 
Comment, at 2 (quoting Senate Report, at 149 (2010)).
---------------------------------------------------------------------------

Other Constitutional Issues
    Because they relate to an area of First Amendment protection, many 
commenters on the draft amendments framed their comments in light of 
their reading of the applicable constitutional standards. In addition 
to the policy matters discussed above, commenters expressed concerns as 
to the application of Rule G-37, as amended by the proposed amendments, 
to ``independent expenditures.'' They also urged the consideration of 
alternatives to the draft amendments and made various other comments, 
discussed below.
Independent Expenditures
    Callcott and CCP stated that the Board should clarify that 
``independent expenditures'' in support of ME officials are permitted 
under the proposed

[[Page 81733]]

amendments to conform to Supreme Court case law.\137\
---------------------------------------------------------------------------

    \137\ The Federal Election Commission defines an ``independent 
expenditure'' generally as an expenditure ``for a communication 
expressly advocating the election or defeat of a clearly identified 
candidate that is not made in cooperation, consultation, or concert 
with, or at the request or suggestion of, a candidate, a candidate's 
authorized committee, or their agents, or a political party 
committee or its agents.'' 11 CFR 100.16(a).
---------------------------------------------------------------------------

    The MSRB has previously stated in interpretive guidance under Rule 
G-37 that MFPs are free to, among other things, solicit votes or other 
assistance for an issuer official so long as the solicitation does not 
constitute a solicitation of or coordination of contributions for the 
issuer official.\138\ In addition, in upholding the constitutionality 
of Rule G-37, the Blount court observed that ``municipal finance 
professionals are not in any way restricted from engaging in the vast 
majority of political activities, including making direct expenditures 
for the expression of their views, giving speeches, soliciting votes, 
writing books, or appearing at fundraising events.'' \139\ In addition, 
the proposed amendments, like current Rule G-37, would generally not 
prohibit contributions to so-called ``super PACs'' or independent 
expenditure-only committees.\140\ Like current Rule G-37, the proposed 
rule change would not impose any restriction on ``independent 
expenditures'' in support of ME officials.
---------------------------------------------------------------------------

    \138\ See Solicitation of Contributions, reprinted in MSRB Rule 
Book (May 21, 1999).
    \139\ Blount, 61 F.3d at 948; see Reminder of Obligations Under 
Rule G-37 on Political Contributions and Rule G-27 on Supervision 
When Sponsoring Meetings and Conferences Involving Issuer Officials, 
reprinted in MSRB Rule Book (March 26, 2007) at n. 1, quoting 
Blount, 61 F.3d at 948.
    \140\ However, consistent with current Rule G-37 and related 
interpretive guidance, regulated entities and their MFPs and MAPs 
would be prohibited from soliciting others (including affiliates of 
the regulated entity or any PACs) to make contributions to certain 
ME officials. Additionally, regulated entities and certain 
categories of MFPs and MAPs would be prohibited from soliciting 
others (including affiliates of the regulated entity or any PACs) to 
make contributions to certain ME officials. Further, contributions 
by a PAC controlled by the regulated entity or an MFP or MAP of the 
regulated entity to certain ME officials may result in a ban on 
municipal securities business or municipal advisory business with 
that municipal entity. Furthermore, regulated entities and their 
MFPs and MAPs would be prohibited from circumventing Rule G-37 by 
direct or indirect actions through any other persons or means, 
including, for example, using an affiliated PAC as a conduit for 
making a contribution to an ME official. See MSRB Guidance on 
Dealer-Affiliated Political Action Committees Under Rule G-37 
(December 12, 2010).
---------------------------------------------------------------------------

Alternatives to the Draft Amendments
    CCP stated that the MSRB should consider alternatives to the draft 
amendments, including tougher penalties, stronger investigative tools, 
whistleblower protections and providing exemptions for municipal 
advisory contracts that are put out for bid in a transparent way.
    The MSRB has determined not to amend the proposed rule change in 
response to these comments. As part of its normal rulemaking process 
and consistent with its policy on economic analysis, the MSRB has 
considered alternatives to the proposed rule change; however, in each 
case, it determined that these alternatives would likely fail to 
achieve the same benefits as the proposed rule change or would achieve 
the same or substantially similar benefits at likely higher cost.\141\ 
The MSRB is sensitive to the constitutional implications of Rule G-37 
and believes that the proposed rule change strikes the appropriate 
balance between protecting constitutional freedoms and addressing quid 
pro quo corruption and the appearance thereof in the municipal 
securities market. For example, the MSRB has continued to improve its 
investigative tools to audit suspected ``pay to play'' activities 
involving dealers in the municipal market. However such tools alone 
would not be sufficient to meet the objectives of the proposed rule 
change because municipal advisors, in their capacity as such, are 
currently not subject to any ``pay to play'' rules. Improved tools to 
uncover quid pro quo corruption are meaningless without legal 
obligations designed to prohibit such practices. A similar rationale 
applies with respect to tougher penalties and whistleblower 
protections. Additionally, while the definition of ``municipal 
securities business'' set forth in current Rule G-37(g)(vii) and in 
proposed Rule G-37(g)(xii) effectively provides the exemptions CCP 
describes for certain municipal securities business conducted on a 
competitive bid basis, the MSRB understands that the nature of 
municipal advisory business does not currently lend itself to a 
competitive bid process in a manner comparable to which it is conducted 
for municipal securities business.
---------------------------------------------------------------------------

    \141\ For example, the MSRB considered not requiring a nexus 
between the influence that may be exercised by an ME official who 
receives a contribution and the business in which the regulated 
entity is engaged or is seeking to engage. A broader set of 
potential ban-triggering events would likely increase costs and may 
negatively impact competition without significantly improving market 
integrity or merit-based competition. The MSRB also considered not 
allowing an orderly transition period for pre-existing non-issue-
specific contractual obligations following a ban on business. This 
alternative would risk imposing significant costs on municipal 
entities and, because the ban-triggering event would by definition 
occur after a firm had been selected, does not appear to address the 
identified needs better than the proposed rule change. The MSRB also 
considered, but ultimately rejected for the reasons stated herein, 
modeling the ``pay to play'' regime for municipal advisors on other 
``pay to play'' regimes in the financial services market in favor of 
the approach taken in the proposed rule change.
---------------------------------------------------------------------------

Other
    Callcott interpreted the draft amendments to Rule G-37 to prohibit 
contributions to political parties, which would in Callcott's view have 
caused Rule G-37 to be unconstitutional. The proposed amendments to 
Rule G-37, like current Rule G-37, would not prohibit the making of 
political contributions to political parties. Rather, proposed amended 
section (c) would prohibit the solicitation and coordination of 
payments to a political party of a state or locality where the 
regulated entity is engaging or seeking to engage in business. 
Accordingly, the MSRB has determined not to further amend proposed 
section (c) in response to this comment.
    CCP stated that draft amended section (e), the anti-circumvention 
provision, is insufficiently tailored under the First Amendment. The 
MSRB believes that this provision, which would be consistent with 
similar provisions in other federal ``pay to play'' regulations, 
including the IA Pay to Play Rule and the Swap Dealer Rule, would be 
narrowly tailored to prohibit regulated entities and their MFPs and 
MAPs from, directly or indirectly, doing any act that would result in a 
violation of sections (b) or (c) of Rule G-37. Accordingly, the MSRB 
has determined not to make any changes to section (e) in response to 
this comment.
    CCP stated that a number of other terms or provisions under the 
draft amendments were vague or unclear. Specifically, CCP indicated 
that the draft amended MFP definition and draft MAP definition would 
make Rule G-37 less clear and difficult to determine what constitutes a 
sufficient ``control'' relationship for purposes of establishing 
vicarious liability for several categories of MFPs or MAPs. In 
addition, CCP expressed a belief that the draft amended definition for 
the term ``solicit'' was overly broad and vague because it would be 
difficult to determine when an ``indirect communication'' constituted a 
solicitation. CCP also noted that section (c) under draft amended Rule 
G-37 was overbroad because it would be difficult to determine whether a 
dealer or municipal advisor was ``seeking'' to engage in municipal 
securities business or municipal advisory business with a municipal 
entity or in a state or locality.

[[Page 81734]]

    The MSRB disagrees with each of these assertions. The proposed 
amendments set forth, for municipal advisors generally, based upon 
their activities, functions and positions, categories that are 
analogous and substantially similar to those used to describe various 
types of MFPs under the current rule. The proposed amendments to the 
definition of municipal finance professional are non-substantive (i.e., 
assigning names to the categories), and, thus would have no impact on 
an analysis or determination regarding control relationships for 
purposes of establishing vicarious liability among various MFPs, and, 
by extension, MAPs. Further, as discussed supra, Rule G-37, including 
section (c), previously withstood constitutional scrutiny in Blount, 
and the proposed amendments simply would extend the core of section (c) 
to municipal advisors. In addition, while the ``solicit'' definition 
would be amended under the proposed rule change, the proposed amended 
definition in subsection (g)(xix) would be consistent with the current 
definition of ``solicit'' that it would replace.\142\ Both the proposed 
and current definitions of ``solicit'' incorporate the ``indirect 
communication'' language. Moreover, the MSRB previously issued 
interpretive guidance regarding the term ``solicitation'' for purposes 
of Rule G-37.\143\ As discussed supra, the MSRB intends to extend the 
existing interpretive guidance on Rule G-37 for dealers to municipal 
advisors on analogous issues. Thus, the MSRB believes at this time that 
there is sufficient guidance regarding these provisions and terms.
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    \142\ See discussion of proposed definition of ``solicit'' in 
``Municipal Advisor Third-Party Solicitors'' and n. 39, supra. The 
current definition of ``solicit,'' which would be deleted, provides: 
``Except as used in section (c), the term `solicit' means the taking 
of any action that would constitute a solicitation as defined in 
rule G-38(b)(i).'' Rule G-37(g)(ix). Rule G-38(b)(i) provides: ``The 
term `solicitation' means a direct or indirect communication by any 
person with an issuer for the purpose of obtaining or retaining 
municipal securities business.''
    \143\ See MSRB Interpretive Notice on the Definition of 
Solicitation Under Rules G-37 and G-38 (June 8, 2006).
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Modification of the Two-Year Ban
    Draft amended Rule G-37(b)(i)(E) would provide for a modification 
of the ending of the two-year ban on applicable business under certain 
circumstances when business with the municipal entity is ongoing at the 
time of the triggering contribution. SIFMA stated that this 
modification should be tailored to apply only to any municipal entity 
with which a regulated entity is engaged in business at the time of the 
contribution. SIFMA explained that, according to its reading of the 
modified two-year ban, in cases where the recipient of a triggering 
contribution is an ME official of multiple municipal entities, a 
regulated entity would be prohibited from engaging in applicable 
business with each municipal entity for the extended period of time, 
even if the regulated entity was engaged in ongoing business with only 
one of the municipal entities at the time of the contribution.
    To provide additional clarity, the MSRB has amended this provision 
and consolidated it with the provisions pertaining to the orderly 
transition period in a single paragraph. Under paragraph (b)(i)(E) in 
the proposed rule change, a triggered ban on applicable business with a 
given municipal entity will be extended by the duration of the orderly 
transition period described in proposed Rule G-37(b)(i)(E). The length 
of a ban on applicable business for one municipal entity with which a 
regulated entity is banned from engaging in applicable business is 
unaffected by the length of the ban on applicable business with another 
municipal entity. This is the case even where the ban on applicable 
business with both municipal entities stemmed from the same 
contribution to an ME official with the ability to influence the 
awarding of business to both municipal entities.\144\
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    \144\ For example, if a ban triggering contribution is made to 
an ME official of three municipal entities, and the regulated entity 
avails itself of an orderly transition period spanning one week for 
one municipal entity and two weeks for the second municipal entity, 
but does not avail itself of an orderly transition period for the 
third municipal entity, its ban with the first municipal entity is 
extended by one week, its ban with the second municipal entity is 
extended by two weeks, and its ban with the third municipal entity 
is not extended.
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Recordkeeping and Reporting
Duplicate Books and Records
    BDA and Sanchez sought clarification as to whether the draft 
amendments would require dealer-municipal advisors to keep duplicate 
books and records. BDA specifically expressed concern that the draft 
amendments would require employees who act as both a municipal advisor 
and serve as bankers in an underwriter capacity to keep dual records 
and disclosures. In addition, Sanchez suggested that Rules G-8 and G-9 
should be revised to not require separate maintenance of information 
that is included on Form G-37 and to make clear that the availability 
of Form G-37 on EMMA would satisfy the maintenance requirement.
    The proposed amendments would not require a dealer-municipal 
advisor to make and keep dual records and disclosures. The MSRB 
therefore has determined not to amend Rules G-8 and G-9 as suggested by 
commenters. In addition, as noted in the Request for Comment, dealer-
municipal advisors could make all required disclosures on a single Form 
G-37. Additionally, the proposed amendments to Rules G-8 and G-9 would 
not prohibit dealer-municipal advisors from making and keeping a single 
set of the records that would be required under the proposed 
amendments. Rather, the proposed amendments would provide dealer-
municipal advisors with the flexibility to consolidate such records or 
to keep such records separate as long as they are kept in compliance 
with all of the terms of Rules G-8 and G-9. If a dealer-municipal 
advisor were to elect to keep a consolidated set of such records, such 
records would need to clearly identify whether an MAP or MFP is solely 
an MAP, solely an MFP, or both.
    The MSRB also has determined, at this time, not to further revise 
Form G-37 and Rules G-8 and G-9 to require the disclosure of much of 
the information required to be kept under those rules in lieu of 
separately maintaining such records. Those data are necessary for 
examiners to examine for compliance with the provisions of Rule G-37 
and the MSRB believes that requiring the public disclosure of such 
information would likely unjustifiably add to, rather than reduce, the 
compliance burden for regulated entities.
Books and Records When No Contributions Are Made
    Castle and WMFS both expressed support for regulation to curb ``pay 
to play'' practices, but stated that there should be no books, records 
or filing requirements for municipal advisors that do not make 
political contributions. To support this approach, WMFS cited the 
requirement under the Dodd-Frank Act that the Board not impose an 
unnecessary burden on small municipal advisors.\145\ The Public 
Interest Groups recommended that the MSRB substantially broaden the 
recordkeeping that would be required under the proposed amendments to 
require regulated entities to disclose all political contributions made 
by any affiliate and to itemize these contributions for comparison to 
relevant underwritings.
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    \145\ See 15 U.S.C. 78o-4(b)(2)(L)(iv).
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    The MSRB believes that the information that would be required to be 
reported to the Board on Form G-37, even in the absence of any 
reportable contributions for the applicable reporting period, is 
important to

[[Page 81735]]

evaluate compliance with the proposed amended rule and to facilitate 
public scrutiny of a regulated entity's political contributions (even 
if made in a different reporting period) and applicable business. The 
MSRB therefore has determined not to propose the amendments suggested 
by these commenters. The MSRB believes that the limited nature of the 
information required to be reported when a regulated entity does not 
have any reportable contributions and the available relief from any 
reporting obligations in certain circumstances under the proposed 
amendments to Rule G-37(e)(ii) sufficiently accommodate small municipal 
advisors. Similarly, the records that a municipal advisor would be 
required to make and keep current under the proposed amendments to 
Rules G-8 and G-9 are necessary to examine municipal advisors for 
compliance with Rule G-37, as amended by the proposed amendments, and 
would generally be limited for a municipal advisor that does not make 
any political contributions. These records would likely also be limited 
for a small municipal advisor, which necessarily will have fewer MAPs 
for which it would be required to keep records.
    The MSRB seeks to appropriately balance the burden of complying 
with the proposed rule change's public reporting requirements with the 
benefit to the public of such disclosure. Moreover, the MSRB is 
cognizant of the constitutional implications of the proposed rule 
change, and seeks to narrowly tailor the rule to achieve its stated 
objectives. At this juncture, the MSRB does not believe that the 
additional public disclosure suggested by The Public Interest Groups is 
warranted for the proposed rule change to achieve its objectives.
Paper Submissions
    Sanchez suggested that the MSRB should enhance the searchability of 
Form G-37 submitted to the Board in furtherance of the Board's stated 
objective to promote public scrutiny of the contributions made by 
regulated entities. Sanchez also suggested that the MSRB not allow the 
submission of paper versions of Form G-37.
    The MSRB agrees and proposed subsection (e)(iv) of Rule G-37 would 
require all Form G-37 submissions to be submitted to the Board in 
electronic form, thereby eliminating the option to submit paper 
versions of these forms. The MSRB also plans to set forth in the 
Instructions for Forms G-37, G-37x and G-38t, referenced in subsection 
(e)(iv) of the proposed amendments to Rule G-37 a requirement that all 
electronic submissions be in word-searchable portable document format 
(PDF). All regulated entities have the ability to access the MSRB's 
electronic submission portal, through which electronic Form G-37 and 
Form G-37x are submitted. Further, given the significant technological 
advances since the MSRB first required the submission of Form G-37, the 
now widespread availability of computers and PDF software, and low 
percentage of Forms G-37 the MSRB currently receives in paper form, the 
MSRB believes the burden as a consequence of no longer accepting paper 
submissions will be relatively low.
Miscellaneous
    ACEC expressed the view that the ``look-back'' in the draft 
amendments would create a potential conflict with existing employment 
law which, ACEC stated, does not favorably view asking an applicant 
questions during the hiring process that are not directly related to 
the job. In addition, ACEC stated that the MSRB should provide guidance 
as to what constitutes an indirect contribution to a trade association 
PAC. Regarding PACs, The Public Interest Groups expressed concern 
regarding political giving by PACs that may or may not be controlled by 
a dealer or an MFP of the dealer. It stated that the current disclosure 
and reporting apparatus does not provide the appropriate deterrent to 
prevent circumvention of Rule G-37 through the use of PACs.
    While the MSRB is sensitive to the fact that regulated entities may 
be subject to many regulatory schemes, it does not believe that the 
look-back, which has existed under Rule G-37 for approximately two 
decades, would be inconsistent with other areas of law. The proposed 
rule change merely extends this same concept to municipal advisors. 
Similarly, the MSRB intends to extend the existing interpretive 
guidance under Rule G-37 for dealers to municipal advisors on analogous 
issues. The MSRB believes at this time that there is sufficient 
guidance regarding contributions to and through PACs as well as 
circumvention of Rule G-37.
    WMFS stated that the MSRB should consider prohibiting the making of 
contributions to bond ballot campaigns. While the MSRB is sensitive to 
concerns about bond ballot contributions, the established objective of 
this rulemaking initiative is to extend the principles embodied in Rule 
G-37 to municipal advisors, with appropriate modifications to take into 
account the differences between the regulated entities and the 
existence of municipal advisor third-party solicitors and dealer-
municipal advisors. While bond ballot contributions are not the subject 
of this initiative, the MSRB continues to review disclosures regarding 
contributions made to bond ballot campaigns and will separately make 
any determination whether to engage in further rulemaking in this 
area.\146\
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    \146\ Since February 1, 2010, the MSRB has required disclosure, 
under Rule G-37, of non-de minimis contributions to bond ballot 
campaigns made by dealers and certain of their associated persons. 
In 2013, the MSRB amended Rule G-37 to require the disclosure of 
additional information related to the contributions made by dealers 
and certain of their associated persons to bond ballot campaigns and 
the municipal securities business engaged in by dealers resulting 
from voter approval of the bond ballot measure to which such 
contributions relate. The proposed rule change would extend these 
disclosure provisions to municipal advisors. In connection with the 
2013 rulemaking initiative, the MSRB stated that the more detailed 
disclosures will help inform the Board whether further action 
regarding bond ballot campaign contributions is warranted, up to and 
including a corresponding ban on engaging in municipal securities 
business as a result of certain contributions. See MSRB Notice 2013-
09, SEC Approves Amendments to Require the Public Disclosure of 
Additional Information Related to Dealer Contributions to Bond 
Ballot Campaigns Under MSRB Rules G-37 and G-8 (April 1, 2013).
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    ACEC requested that the MSRB clarify whether the de minimis 
exclusion would apply separately to primary and general elections. The 
Board has previously stated that, if an issuer official is involved in 
a primary election prior to the general election, an MFP who is 
entitled to vote for such official may contribute up to $250 for the 
primary election and $250 for the general election to the 
official.\147\ As noted, the MSRB intends all existing interpretive 
guidance for dealers to apply to the analogous interpretive issues for 
municipal advisors. Thus, under the proposed rule change, the de 
minimis exclusion would apply separately to primary and general 
elections.
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    \147\ See MSRB Rule G-37 Interpretive Notice--Application of 
Rule G-37 to Presidential Campaigns of Issuer Officials (March 23, 
1999).
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    ACEC also urged the MSRB to reserve action on the proposed rule 
change until the Commission has fully clarified the definition of 
municipal advisory services. The MSRB has determined not to delay this 
rulemaking initiative. Since July 1, 2014, all municipal advisors, 
including municipal advisors that are also engineers and do not qualify 
for an exclusion or exemption under the SEC Final Rule, have been 
required to comply with the provisions of the SEC Final Rule. They are 
also subject to a number of MSRB rules, such as Rule G-17, regarding 
fair dealing, Rule G-44, regarding supervisory and

[[Page 81736]]

compliance obligations, and Rule G-3, regarding registration and 
professional qualification requirements. At this juncture, all 
municipal advisors should be registered as such, and in compliance with 
applicable rules. Accordingly, the MSRB has determined not to reserve 
action on this rulemaking initiative.
    Anonymous stated that registered investment advisers that are also 
municipal advisors should be exempt from the proposed rule change 
because, in its view, such municipal advisors are already subject to 
stringent political contribution compliance and recordkeeping 
requirements. The MSRB has determined not to exempt such municipal 
advisors from the proposed rule change. As discussed supra, the MSRB is 
sensitive to the effect of differing regulation for the limited number 
of dealers and municipal advisors that also operate in the investment 
advisory market or the swap market. However, the Board does not believe 
that municipal advisors that also act as investment advisers should be 
subject to different regulation than their non-investment adviser 
municipal advisor counterparts.
    Lastly, ACEC stated that some commercial entities not primarily in 
the business of providing advisory services related to municipal 
securities may, nonetheless, be engaged in activities that are 
regulated (e.g., engineers). It noted that for the larger among these 
firms, implementing a compliance regime consistent with the proposed 
amendments would be challenging and that the MSRB should consider these 
administrative costs in the context of this rulemaking initiative. As 
described supra, the MSRB has considered the impact of the proposed 
rule change on all municipal advisors, including small municipal 
advisors and municipal advisors that have not previously been subject 
to federal financial regulation, and continues to believe that the 
proposed rule change is necessary to address quid pro quo corruption or 
the appearance thereof in the municipal market.
Economic Analysis
    There were no comments received that were specific to the 
preliminary economic analysis presented in the Request for Comment nor 
did commenters provide any data to support an improved quantification 
of benefits and costs of the rule. Comments about the compliance 
burdens of specific elements of the draft amendments are discussed 
above.
Implementation Period and Transitional Effect
    SIFMA requested an implementation period of no less than six months 
from the effective date of the proposed rule change.
    In response to this comment, the MSRB has revised section (h) of 
the draft amendments to Rule G-37 to provide that the prohibitions in 
proposed amended section (b) of Rule G-37 (regarding the ban on 
business) would only arise from contributions made on or after an 
effective date to be announced by the MSRB in a regulatory notice 
published no later than two months following SEC approval of the 
proposed rule change. Such effective date shall be no sooner than six 
months following publication of the regulatory notice and no later than 
one year following SEC approval of the proposed rule change. This 
lengthening of the implementation period should mitigate compliance 
costs and provide sufficient time for municipal advisors to identify 
the MAPs and MFPs that will be subject to the proposed rule change and 
for dealers and municipal advisors to modify existing, or adopt new, 
relevant policies or procedures.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period of up to 90 days (i) as 
the Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) by order approve or disapprove such proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-MSRB-2015-14 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE., Washington, DC 20549.

All submissions should refer to File Number SR-MSRB-2015-14. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549 on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available 
for inspection and copying at the principal office of the MSRB. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-MSRB-2015-14 and should be 
submitted on or before January 20, 2016.

    For the Commission, pursuant to delegated authority.\148\
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    \148\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2015-32822 Filed 12-29-15; 8:45 am]
 BILLING CODE 8011-01-P


