When Ken Gross embarked on building a political law practice at Skadden Arps Slate Meagher & Flom in the 1980s, most firms represented either Republican or Democratic candidates. He envisioned a nonpartisan venture, catering mostly to corporate clients, and helped spearhead a model that grew more common on K Street as campaign finance and ethics regulations expanded.
Along with a roster of company clients, the former associate general counsel of the Federal Election Commission also worked for some candidates, including simultaneous representation of Democratic Sen. Daniel Patrick Moynihan of New York and Republican presidential candidate and Sen. Bob Dole of Kansas.
“Both of them were fine with it,” Gross recalled. “I just don’t think you could do that anymore.”
Gross, who joined the firm’s Washington office in 1986, carried out his plans for the practice over the next 35 years, representing mostly companies and trade associations as they navigated the changing legal landscape for political action committees, lobbying, government ethics and gift rules. Longtime clients have included Johnson & Johnson and American Express, among others. He also represented all of Democrat-turned-Republican-turned-Independent Mike Bloomberg’s New York City mayoral bids.
As of this month, Gross is officially retired after hitting his firm’s mandatory retirement age of 70. He will remain connected to Skadden on “pro bono emeritus” status, which affords him access to an office in a separate part of the firm’s building near the White House.
“Some people refer to it as the detox unit,” he quipped.
Ki Hong, a longtime member of the practice, has taken over Skadden’s political law group, a team of 15.
Gross, who is originally from New York, arrived in Washington in 1977, via Georgia where he went to law school at Emory University. He came to the capital with the “Jimmy Carter crowd,” he said, and began working at FEC during what were some of its most crucial early years.
A former Skadden partner, Thomas J. Schwarz, recruited him, after the two were on opposite sides of a case.
Jan Baran, a longtime Republican campaign finance lawyer, said he worked with Gross at the FEC but had gone into private practice when a partner at Skadden asked Baran’s thoughts on Gross.
“It really was a match made in heaven,” Baran said. “Ken is responsible for developing that practice group, leading it, growing it to the point where Skadden is the go-to firm for Manhattan-based corporate clients who want to engage in lobbying, PACs and political activity and want to ensure their compliance.”
During his tenure at the firm, Gross advised clients on major shifts in campaign finance, election and lobbying laws, including the end to corporate soft-money donations to party committees with the McCain-Feingold law in 2002, and a new law five years later to respond to the Jack Abramoff scandals. In between, Gross won a 2006 award from the Council on Governmental Ethics Law.
Corporate PACs in crisis
Clients called on him again in the aftermath of the Jan. 6, 2021, attack on the U.S. Capitol. Numerous corporations paused their PAC giving, though such donations have largely resumed.
Gross said the viability of corporate PACs was tested “as much as it’s ever been tested” after Jan. 6, and a few shut down, such as the PAC of Charles Schwab Corp.
“But not very many others did, and I was happy about that because it seems to me, it’s an overreaction,” Gross said. “And to take yourself out of the game doesn’t really work that way. Political contributions and support of candidates is like a balloon, and if you’re going to shut the PAC down, what happens is it emerges in some other fashion.”
Without a PAC, employees may seek reimbursement or compensation increases for their personal contributions, which is illegal, he said. “I always say a PAC is a compliance tool as much as it is a political tool,” he added.
Over the years, he also helped some of Wall Street’s biggest firms grapple with state and federal gift rules. In the early 1990s, he said, Lehman Bros. and Merrill Lynch asked Skadden to write a handbook on entertaining public officials. The two clients paid for it but asked Skadden to share it widely.
“They wanted us to have it distributed to all of Wall Street or anywhere else, because they wanted everybody going out of the same hymnal,” Gross said. “They obviously want to be compliant, but they also didn’t want to have competitive problems where one guy is taking someone to the Super Bowl and the other one is saying, ‘I can’t take you out to Dunkin Donuts.’”
Former Democratic Rep. Martin Frost of Texas says he invited Gross to be a guest lecturer at his classes at George Washington University because he “made clear things that were very complicated.”
“He is one of the best people in town for understanding campaign finance law,” Frost said. “I always found that he was easy to understand and had a real grasp of complicated issues.”
Gross shared his expertise beyond corporate boardrooms and university lecture halls, and once advised the TV show “The West Wing.”
“They were doing something about the appointment of FEC commissioners, and the president had said we were appointing three Democrats and three Republicans because we wanted to be even handed,” Gross recalled.
He cringed. The FEC is designed to be evenly split between Republican and Democratic nominees.
He mentioned this mistake over lunch with Lawrence O’Donnell, the MSNBC host who was then one of the show’s writers and producers. Weeks later, Gross watched the episode on TV. To his surprise, it still included the fictional President Josiah Bartlet’s inaccurate remark but also a whole subplot about how the president had made an error.
“So I called up Lawrence afterward, and he said, ‘We had already shot the scene in the morning,’ so they just worked the correction into the story,” Gross said.
Turning to voting rights
Gross said he’s going into retirement reluctantly and plans to stay active on the boards of a number of organizations, including No Labels, the American Council of Political Leaders and the Public Affairs Council. He’s also involved with the legal committee for the U.S. Holocaust Memorial Museum and co-chairs the Practicing Law Institute’s corporate political activities program.
And though campaign finance is his first area of expertise, he plans to focus more on voting rights, he said. His firm recognized his work with a pro bono award last year for efforts on voting rights and other matters.
“Right now, the need for advice and help in the area of voting rights has never been greater,” he said.
He’s offered clients a “dispassionate” analysis of some of the new state laws on elections and said some of the rhetoric has become overheated.
“Sometimes you say, ‘Well this same provision in Delaware is not so bad,’ but then you import it to Georgia and because of the nature of the voting population in that state, it has a much different, disparate effect,” he said.
Gross said what concerns him most are measures putting state legislatures, not elections officials, in charge of the vote-counting process.
“That to me, it’s almost impossible to justify,” he said. “It spells trouble and creates opportunity for mischief.”
Though he’s worked over the past three-plus decades to keep to a less partisan line, Gross said he expects that he may shed some of that.
“I think I can come out of my shell politically more,” he said. “We all have our personal views of things, and I will be less constrained.”
That may be one of the few things he’s looking forward to in retirement. The COVID pandemic, he said, has helped prepare him psychologically for a change that he wouldn’t do if it weren’t mandatory.
“Emotionally, for me, it’s somewhat difficult, challenging,” he said, noting that he had considered taking some of his clients to another firm but decided against it. He didn’t want to take away from the team he’s built and mentored over the years.
That practice, he said, is the culmination of his life’s work. “I would say, looking back, while I’ve had some very interesting cases in my career and good times and stressful times, that, I feel, is my greatest accomplishment,” he said.
In addition to working on voting rights and serving on boards, he may get a dog. But, “I have to work on my wife on that one,” he confessed.
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