§ 14-107 — Independent expenditure reporting

§ 14-107. Independent expenditure reporting. 1. For purposes of this\narticle:\n (a) "Independent expenditure" means an expenditure made by an\nindependent expenditure committee in the form of (i) an audio or video\ncommunication via broadcast, cable or satellite, (ii) a written\ncommunication via advertisements, pamphlets, circulars, flyers,\nbrochures, letterheads or (iii) other published statements, where such\nexpenditure is conveyed to five hundred or more members of a general\npublic audience, or in the form of any paid internet or digital\nadvertisement targeted to fifty or more members of a general public\naudience, or in the form of a public-facing website, which: (i)\nirrespective of when such communication is made, contains words such as\n"vote," "oppose," "support," "elect," "defeat," or "reject," which call\nfor the election or defeat of the clearly identified candidate, (ii)\nrefers to and advocates for or against a clearly identified candidate or\nballot proposal on or after January first of the year of the election in\nwhich such candidate is seeking office or such proposal shall appear on\nthe ballot, or (iii) within sixty days before a general or special\nelection for the office sought by the candidate or thirty days before a\nprimary election, includes or references a clearly identified candidate.\nAn independent expenditure shall not include communications where such\ncandidate, the candidate's political committee or its agents, a party\ncommittee or its agents, or a constituted committee or its agents or a\npolitical committee formed to promote the success or defeat of a ballot\nproposal or its agents, did authorize, request, suggest, foster or\ncooperate in such communication.\n (b) Independent expenditures do not include expenditures in connection\nwith:\n (i) a written news story, commentary, or editorial or a news story,\ncommentary, or editorial distributed through the facilities of any\nbroadcasting station, cable or satellite unless such publication or\nfacilities are owned or controlled by any political party, political\ncommittee or candidate; or\n (ii) a communication that constitutes a candidate debate or forum; or\n (iii) internal communication by members to other members of a\nmembership organization of not more than five hundred members, for the\npurpose of supporting or opposing a candidate or candidates for elective\noffice, provided such expenditures are not used for the costs of\ncampaign material or communications used in connection with\nbroadcasting, telecasting, newspapers, magazines, or other periodical\npublication, billboards, or similar types of general public\ncommunications; or\n (iv) internal communications by members to other members of a\nmembership organization of not more than five hundred members or\ncommunications by a corporation organized for charitable purposes\npursuant to §501(c)(3) of the internal revenue code, within sixty days\nbefore a general or special election for the office sought by the\ncandidate or thirty days before a primary election, that includes or\nreferences a clearly identified candidate but does not otherwise qualify\nas an independent expenditure under this section.\n (v) a communication published on the Internet, unless the\ncommunication is a paid advertisement or a public-facing website paid\nfor, hosted, and/or operated by a political committee.\n (c) An independent expenditure committee shall not include payments or\nexpenditures made by a party or constituted committee that is required\nto file disclosure reports under this chapter.\n (d) Independent expenditures shall not include payments or\nexpenditures where coordination occurs in the creation, formation, or\noperation of the independent expenditure committee making the payment or\nexpenditure.\n Coordination shall include:\n (i) The candidate or the candidate's authorized committee, or an agent\nof the candidate or candidate's authorized committee, participated in\nthe creation or formation of the independent expenditure committee\nwithin two years of the general election, primary or special election in\nwhich the candidate is a candidate for nomination or election and the\npayment or expenditure made is for the benefit of that candidate.\n (ii) The candidate or an agent of the candidate appears at any\nfundraising event hosted by an independent expenditure committee, or its\nagent, making a payment or expenditure that benefits that candidate\nwithin two years of the general election, primary or special election in\nwhich the candidate is a candidate for nomination or election.\n (iii) The independent expenditure committee making the payment or\nexpenditure, or its agent, employed or retained an individual, other\nthan an individual described in subparagraph (viii) of this paragraph,\nwho was employed by the candidate, the candidate's authorized committee\nor an agent of the candidate or has held a policymaking,\nnon-administrative position in the office of the candidate's elected\noffice within two years of the general election, primary or special\nelection in which the candidate is a candidate for nomination or\nelection, and the payment or expenditure is made for the benefit of that\ncandidate.\n (iv) The independent expenditure committee making the payment or\nexpenditure, or its agent, is a member of the candidate's immediate\nfamily or is established, directed, or managed by a member of the\nimmediate family of the candidate, and the payment or expenditure is\nmade for the benefit of that candidate.\n (v) The independent expenditure committee making the payment or\nexpenditure benefiting the candidate, republishes, disseminates, or\ndistributes, in whole or in part, any video, audio, written, or other\ncampaign-related material prepared by the candidate or the candidate's\nauthorized committee or by an agent of the candidate or the candidate's\nauthorized committee. This paragraph shall not apply if the independent\nexpenditure committee making the payment or expenditure obtains the\ncommunication or materials from a publicly available source.\n (vi) The candidate or the candidate's authorized committee, or an\nagent of the candidate or the candidate's authorized committee, shares\nor rents space for a campaign-related purpose with or from the\nindependent expenditure committee, or its agent, making the payment or\nexpenditure benefitting the candidate.\n (vii) The independent expenditure committee, or its agent, making the\npayment or expenditure benefitting the candidate has participated in\nstrategic discussions with the candidate, the candidate's authorized\ncommittee, or an agent of the candidate or the candidate's authorized\ncommittee within two years of the general election, primary or special\nelection in which the candidate is a candidate for nomination or\nelection. Discussions shall be deemed strategic if information about the\ncandidate's or opponent's electoral campaign plans, projects, or\nactivities that is not obtained from a publicly available source is\nconveyed to the independent expenditure committee, or its agent, making\nthe payment or expenditure. This paragraph shall only apply to\ndiscussions occurring after the independent expenditure committee is\nformed or, one week after the candidate has been certified for that\nelection, whichever occurs first.\n (viii) The independent expenditure committee, or its agent, making the\npayment or expenditure benefitting the candidate, and the candidate or\nthe candidate's authorized committee knowingly retain the same\nindividual or entity to provide professional campaign services within\ntwo years of the general election, primary or special election in which\nthe candidate is a candidate for nomination or election, and the\nprofessional campaign services provider discloses strategic information\nregarding one party with the other party. Information shall be deemed\nstrategic if it relates to either party's respective campaign or\nindependent expenditure plans, projects, or activities that are not\nobtained from a publicly available source. This subparagraph shall not\nprohibit a candidate, a candidate's authorized committee, or an agent of\nthe candidate or the candidate's authorized committee from retaining the\nsame professional campaign services provider as the independent\nexpenditure committee, or its agent, making the payment or expenditure\nbenefitting the candidate upon the professional campaign services\nprovider entering into a confidentiality agreement with both parties\nexpressly stating that it will not disclose strategic information\nregarding each party with the other party.\n (ix) The independent expenditure committee, or its agent, making the\npayment or expenditure benefitting the candidate, utilizes strategic\ninformation or data related to the candidate, that is not from a\npublicly available source and is not otherwise available by\nsubscription, from an individual who has been previously compensated,\nreimbursed or retained by the candidate as a consultant, political,\nmedia or fundraising advisor, vendor or contractor within two years of\nthe general election, primary or special election in which the candidate\nis a candidate for nomination or election.\n (e) The following shall not be coordination:\n (i) A candidate's or a party or constituted committee's response to an\ninquiry about that candidate's or party or constituted committee's\npositions on legislative or policy issues.\n (ii) A public communication in which a candidate is clearly identified\nonly in his or her capacity as the owner or operator of a business that\nexisted prior to the candidacy is not a coordinated communication with\nrespect to the clearly identified candidate if: (A) The medium, timing,\ncontent, and geographic distribution of the public communication are\nconsistent with public communications made prior to the candidacy; and\n(B) The public communication does not promote, support, attack, or\noppose that candidate or another candidate in their capacity as\ncandidates who seeks the same office as that candidate.\n (f) For purposes of this section, the term "immediate family" means\nspouse, child, parent, grandparent, brother, half-brother, sister, or\nhalf-sister of the candidate, and the spouses of such persons.\n (g) For purposes of this section, "agent" means a person authorized by\nthe candidate or the candidate's authorized committee, who acts on\nbehalf of or at the direction of a candidate or the candidate's\nauthorized committee; or a party committee or constituted committee\nacting on behalf of a candidate; or a person authorized by an\nindependent expenditure committee who acts on behalf of or at the\ndirection of such committee.\n 2. Whenever any person makes an independent expenditure, such\ncommunication shall, in a manner consistent with section 14-106 of this\narticle, clearly state the name of the person who paid for, or otherwise\npublished or distributed the communication and state, with respect to\ncommunications regarding candidates, that the communication was not\nexpressly authorized or requested by any candidate, or by any\ncandidate's political committee or any of its agents; provided, however,\nthat paragraphs three and four of section 14-106 of this article shall\nnot apply to the disclosure requirements under this section.\n 3. Any person prior to making any independent expenditure shall first\nregister with the state board of elections as a political committee and\nas an independent expenditure committee in conformance with this article\nprovided, however, that no foreign national, government, instrumentality\nor agent may register as an independent expenditure committee for the\npurpose of making independent expenditures in any state or local\nelection. Such person shall comply with all disclosure obligations\nrequired for political committees by law and shall provide the following\nadditional information upon registration:\n (a) Where the person making the statement is an individual, the name,\naddress, occupation and employer of the person.\n (b) Where the person making the statement is an entity, the name and\nemployer of any individual who exerts operational or managerial\ninfluence or control over the entity, as well as any salaried employee\nof the entity. The disclosures required by this paragraph shall include\nthe name of at least one natural person.\n (c) Identification of individuals named in paragraphs (a) and (b) of\nthis subdivision who have, during the two-year period before the\nstatement is filed, been employed or retained as a political, media, or\nfundraising adviser or consultant for a candidate, any entity directly\ncontrolled by a candidate, or any party committee or constituted\ncommittee, or have held a formal position in the office of a candidate's\nelected office, or any party committee or constituted committee, and the\nname of the relevant employer.\n (d) Identification of individuals named in paragraphs (a), (b) and (c)\nof this paragraph who are members of a candidate's immediate family.\n (e) The information provided pursuant to this subdivision shall be\nupdated within twenty-four hours of any change in ownership or control\nof any registered entity.\n 4. (a) Required disclosures. (i) Any independent expenditure\ncommittee who has registered pursuant to subdivision three of this\nsection shall disclose to the state board of elections electronically,\nonce a week on Monday any contribution to such committee of one thousand\ndollars or more, any expenditures, except paid internet and digital\nadvertisements, made by such committee over five thousand dollars, and\nany independent expenditure in the form of a paid internet or digital\nadvertisement over five hundred dollars made during the reporting\nperiod.\n (ii) Any independent expenditure committee who has registered with the\nstate board of elections pursuant to subdivision three of this section\nshall disclose to the state board of elections electronically, within\ntwenty-four hours, any contribution to such independent expenditure\ncommittee of one thousand dollars or more or expenditure made by such\ncommittee over five thousand dollars made within thirty days before any\nprimary, general, or special election.\n (b) The disclosures required by paragraph (a) of this subdivision\nshall include, in addition to any other information required by law:\n (i) the name, address, occupation and employer of the person making\nthe statement;\n (ii) For each expenditure or payment made: (1) the dollar amount paid\nfor each independent expenditure, the name and address of the person or\nentity receiving the payment, the date the payment was made and a\ndescription of the independent expenditure;\n (2) the election to which the independent expenditure pertains and the\nname of the clearly identified candidate or the ballot proposal\nreferenced and whether the candidate or ballot proposal is supported or\nopposed; and\n (3) A list of all expenditures made by and liabilities incurred for\nservices rendered during the relevant reporting period.\n (iii) For each contribution received the name, address, occupation and\nemployer of any person providing a contribution, gift, loan, advance or\ndeposit of one thousand dollars or more for the independent expenditure,\nor the provision of services for the same and the date it was given.\n 5. A copy of all political communications paid for by the independent\nexpenditure, including but not limited to broadcast, cable or satellite\nschedules and scripts, advertisements, pamphlets, circulars, flyers,\nbrochures, letterheads and other printed matter and statements or\ninformation conveyed to one thousand or more members of a general public\naudience by computer or other electronic devices, and paid internet or\ndigital advertisements, shall be filed with the state board of elections\nwith the statements required by this section.\n 5-a. The state board of elections shall maintain and make available\nonline for public inspection in a machine readable format, a complete\nrecord of any independent expenditure in the form of a paid internet or\ndigital advertisement required to be filed under subdivision five of\nthis section. The record shall be maintained for a period no less than\nfive years from the date of filing and contain a digital copy of the\nindependent expenditure and the information provided on the registration\nform of the independent expenditure committee making such expenditure\npursuant to paragraphs (a) and (b) of subdivision three of this section.\nThe state board of elections shall promulgate rules necessary to comply\nwith the provisions of this subdivision which shall be effective no\nlater than one hundred twenty days after the effective date of this\nsubdivision.\n 6. Every statement required to be filed pursuant to this section shall\nbe filed electronically with the state board of elections.\n 7. The state board of elections shall promulgate regulations with\nrespect to the statements required to be filed by this section and shall\nprovide forms suitable for such statements.\n 8. (a) All criminal liability related to this section shall require\nknowing and willful violations in accordance with section 14-126 of this\narticle.\n (b) A knowing and willful violation of the provisions of subdivisions\nthree and four of this section shall subject the person to a civil\npenalty equal to five thousand dollars or the cost of the communication,\nwhichever is greater, in a special proceeding or civil action brought by\nthe board.\n