HOUSE BILL 118
49th legislature - STATE OF NEW MEXICO - second session, 2010
INTRODUCED BY
Jose A. Campos
AN ACT
RELATING TO ELECTIONS; PROHIBITING CERTAIN CONTRIBUTIONS AND SOLICITATIONS OF CONTRIBUTIONS BY LOBBYISTS, SEEKERS OF TARGETED SUBSIDIES, THE PRINCIPALS OF SEEKERS OF TARGETED SUBSIDIES, STATE CONTRACTORS AND THE PRINCIPALS OF STATE CONTRACTORS; PROHIBITING CERTAIN SOLICITATIONS OF CONTRIBUTIONS FROM LOBBYISTS, SEEKERS OF TARGETED SUBSIDIES, THE PRINCIPALS OF SEEKERS OF TARGETED SUBSIDIES, STATE CONTRACTORS AND THE PRINCIPALS OF STATE CONTRACTORS; PROHIBITING THE BUNDLING OF CONTRIBUTIONS BY LOBBYISTS, SEEKERS OF TARGETED SUBSIDIES, THE PRINCIPALS OF SEEKERS OF TARGETED SUBSIDIES, STATE CONTRACTORS AND THE PRINCIPALS OF STATE CONTRACTORS; REQUIRING DISCLOSURE OF CONTRIBUTIONS DIRECTED OR KNOWINGLY USED TO SUPPORT POLITICAL ADVOCACY; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2009; REPEALING LAWS 2009, CHAPTER 68, SECTION 2.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Campaign Reporting Act is enacted to read:
"[NEW MATERIAL] LOBBYISTS--CONTRIBUTIONS FOR CANDIDATES AND CERTAIN POLITICAL COMMITTEES PROHIBITED.--
A. A lobbyist that is subject to the Lobbyist Regulation Act shall not make a contribution to or solicit a contribution on behalf of or for the benefit of:
(1) a candidate for nomination or election to a state public office or a political committee established by the candidate; or
(2) a political committee if:
(a) the committee is established by a state public officer or an agent of the officer or in consultation with or at the request of the officer or agent of the officer;
(b) the committee is controlled by a state public officer or agent of the officer to aid or promote the nomination or election of one or more candidates for state public office; or
(c) the contributor knows or requests that the contribution will be used for the benefit of or given to a candidate for nomination or election to a state public office.
B. A state public officer, candidate or political committee described in Subsection A of this section shall not accept or solicit a contribution prohibited by that subsection.
C. The provisions of this section shall not restrict a lobbyist from establishing a political committee for the lobbyist's own campaign or from soliciting contributions for that campaign from persons not prohibited from making contributions pursuant to this section.
D. The provisions of this section shall not preclude a lobbyist from making contributions or expenditures to promote the success or defeat of a ballot measure."
Section 2. A new section of the Campaign Reporting Act is enacted to read:
"[NEW MATERIAL] STATE CONTRACTORS--CONTRIBUTIONS FOR CANDIDATES AND CERTAIN POLITICAL COMMITTEES PROHIBITED.--
A. A state contractor or principal of a state contractor shall not make a contribution to or solicit contributions on behalf of or for the benefit of:
(1) a candidate for nomination or election to a state public office or a political committee established by the candidate; or
(2) a political committee if:
(a) the committee is established by a state public officer or an agent of the officer or in consultation with or at the request of the officer or an agent of the officer;
(b) the committee is controlled by a state public officer or an agent of the officer to aid or promote the nomination or election of one or more candidates for state public office; or
(c) the contributor knows or requests that the contribution will be used for the benefit of or given to a candidate for nomination or election to a state public office.
B. A state public officer, candidate or political committee described in Subsection A of this section shall not accept or solicit a contribution prohibited by that subsection.
C. The provisions of this section shall not restrict a principal of a state contractor from establishing a political committee for the principal's own campaign or from soliciting contributions for that campaign from persons not prohibited from making contributions by this section.
D. The provisions of this section shall not preclude a state contractor or a principal of a state contractor from making contributions or expenditures to promote the success or defeat of a ballot measure.
E. The provisions of this section supplement and do not limit the provisions of other statues or agency rules that may further limit contractor contributions."
Section 3. A new section of the Campaign Reporting Act is enacted to read:
"[NEW MATERIAL] SEEKERS OF TARGETED SUBSIDIES--CONTRIBUTIONS FOR CANDIDATES AND CERTAIN POLITICAL COMMITTEES PROHIBITED.--
A. A seeker of a targeted subsidy or a principal of a seeker of a targeted subsidy shall not make a contribution to or solicit a contribution on behalf of or for the benefit of:
(1) a candidate for nomination or election to a state public office or a political committee established by the candidate; or
(2) a political committee if:
(a) the committee is established by a state public officer or an agent of the officer or in consultation with or at the request of the officer or agent of the officer;
(b) the committee is controlled by a state public officer or agent of the officer to aid or promote the nomination or election of one or more candidates for state public office; or
(c) the contributor knows or requests that the contribution will be used for the benefit of or given to a candidate for nomination or election to a state public office.
B. A state public officer, candidate or political committee described in Subsection A of this section shall not accept or solicit a contribution prohibited by that subsection.
C. The provisions of this section shall not restrict a principal of a seeker of a targeted subsidy from establishing a campaign committee for the principal's own campaign or from soliciting contributions for that campaign from persons not prohibited from making contributions pursuant to this section.
D. The provisions of this section shall not preclude a seeker of a targeted subsidy or a principal of a seeker of a targeted subsidy from making contributions or expenditures to promote the success or defeat of a ballot question."
Section 4. A new section of the Campaign Reporting Act is enacted to read:
"[NEW MATERIAL] BUNDLING OF CONTRIBUTIONS.--A person prohibited from contributing to or for the benefit of a candidate for state public office by the Campaign Reporting Act shall not facilitate the collection of contributions from legal contributors that the person is prohibited from making on the person's own behalf."
Section 5. A new section of the Campaign Reporting Act is enacted to read:
"[NEW MATERIAL] DISCLOSURE OF FUNDING USED FOR POLITICAL ADVOCACY.--
A. A person who engages in express advocacy or the functional equivalent of express advocacy shall report the details of the communication to the office of the secretary of state if:
(1) the total price of the communication, including production and distribution costs, is more than five thousand dollars ($5,000) for a state race or five hundred dollars ($500) for a local race; and
(2) the communication occurs within sixty days before a general election or thirty days before a primary election.
B. The report shall include the name and address of the person making the communication, a digital or print copy of the communication, the amount of the expenditure and the names and addresses of all contributors who requested that their contributions be used to fund the communication or who know that their contributions are to be used to fund the communication. The report must be received by the office of the secretary of state within five business days of the date on which a contract is signed to produce or distribute the communication.
C. Factors that may be considered in favor of a communication being determined to be express advocacy include the use of words such as "vote for", "elect", "support", "cast your ballot for", "vote against", "defeat" or "reject" in conjunction with a candidate's name.
D. Factors that shall be considered in favor of a communication being determined to be the functional equivalent of express advocacy include that:
(1) the communication mentions any election, candidacy, political party, opposing candidate or voting by the general public; or
(2) the communication takes a position on any candidate's or officeholder's character, qualifications or fitness for office.
E. Factors that shall be considered against a communication being determined to be the functional equivalent of express advocacy include that:
(1) the communication focuses on a public policy issue and either urges a candidate to take a position on the issue or urges the public to contact the candidate about the issue;
(2) the communication proposes a commercial transaction, such as the purchase of a book, video or other product or service or the attendance, for a fee, at a film exhibition or other event; or
(3) the communication includes a call to action or other appeal that, interpreted in conjunction with the rest of the communication, urges an action other than voting for or against or contributing to a clearly identified candidate or political party."
Section 6. Section 1-19-26 NMSA 1978 (being Laws 1979, Chapter 360, Section 2, as amended) is amended to read:
"1-19-26. DEFINITIONS.--As used in the Campaign Reporting Act:
A. "advertising campaign" means an advertisement or series of advertisements used for a political purpose and disseminated to the public either in print, by radio or television broadcast or by any other electronic means, including telephonic communications, and may include direct or bulk mailings of printed materials;
B. "anonymous contribution" means a contribution the contributor of which is unknown to the candidate or the candidate's agent or the political committee or its agent who accepts the contribution;
C. "bank account" means an account in a financial institution located in New Mexico;
D. "business entity" includes, whether organized inside or outside of New Mexico, a sole proprietorship, a partnership, a joint venture, a limited liability company, a corporation and any other association, organization or entity that is engaged in the operation of a business or profit-making activity;
[D.] E. "campaign committee" means two or more persons authorized by a candidate to raise, collect or expend contributions on the candidate's behalf for the purpose of electing the candidate to office;
[E.] F. "candidate" means an individual who seeks or considers an office in an election covered by the Campaign Reporting Act, including a public official, who either has filed a declaration of candidacy or nominating petition or:
(1) for a non-statewide office, has received contributions or made expenditures of one thousand dollars ($1,000) or more or authorized another person or campaign committee to receive contributions or make expenditures of one thousand dollars ($1,000) or more for the purpose of seeking election to the office; or
(2) for a statewide office, has received contributions or made expenditures of two thousand five hundred dollars ($2,500) or more or authorized another person or campaign committee to receive contributions or make expenditures of two thousand five hundred dollars ($2,500) or more for the purpose of seeking election to the office or for candidacy exploration purposes in the years prior to the year of the election;
[F.] G. "contribution" means a gift, subscription, loan, advance or deposit of money or other thing of value, including the estimated value of an in-kind contribution, that is made or received for a political purpose, including payment of a debt incurred in an election campaign, but "contribution" does not include the value of services provided without compensation or unreimbursed travel or other personal expenses of individuals who volunteer a portion or all of their time on behalf of a candidate or political committee, nor does it include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee;
[G.] H. "deliver" or "delivery" means to deliver by certified or registered mail, telecopier, electronic transmission or facsimile or by personal service;
[H.] I. "election" means any primary, general or statewide special election in New Mexico and includes county and judicial retention elections but excludes municipal, school board and special district elections;
[I.] J. "election year" means an even-numbered year in which an election covered by the Campaign Reporting Act is held;
[J.] K. "expenditure" means a payment, transfer or distribution or obligation or promise to pay, transfer or distribute any money or other thing of value for a political purpose, including payment of a debt incurred in an election campaign or pre-primary convention, but does not include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee;
L. "express advocacy" means any communication that asks the recipient to vote for or against a specific candidate for public office;
M. "functional equivalent of express advocacy" means any communication that is susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate for office and that is distributed via broadcast, cable, satellite or print media to voters living in the district the candidate seeks to represent;
[K.] N. "person" means an individual or entity;
[L.] O. "political committee" means two or more persons, other than members of a candidate's immediate family or campaign committee or a husband and wife who make a contribution out of a joint account, who are selected, appointed, chosen, associated, organized or operated primarily for a political purpose; and "political committee" includes:
(1) political parties, political action committees or similar organizations composed of employees or members of any corporation, labor organization, trade or professional association or any other similar group that raises, collects, expends or contributes money or any other thing of value for a political purpose;
(2) a single individual whose actions represent that the individual is a political committee; and
(3) a person or an organization of two or more persons that within one calendar year expends funds in excess of five hundred dollars ($500) to conduct an advertising campaign for a political purpose;
[M.] P. "political purpose" means influencing or attempting to influence an election or pre-primary convention, including a constitutional amendment or other question submitted to the voters;
[N.] Q. "prescribed form" means a form or electronic format prepared and prescribed by the secretary of state;
R. "principal of a seeker of a targeted subsidy" means, in addition to the seeker of a targeted subsidy itself:
(1) a person who is a member of the board of directors of, or has an ownership interest in, a seeker of a targeted subsidy, except for a person who owns less than five percent of the shares of that seeker of a targeted subsidy that is a publicly traded corporation;
(2) a president, treasurer or executive or senior vice president of a seeker of a targeted subsidy that is a business entity;
(3) a person who is the chief executive officer of a seeker of a targeted subsidy;
(4) an employee of a seeker of a targeted subsidy who has managerial or discretionary responsibilities with respect to a targeted subsidy;
(5) the spouse or a dependent child of a person described in Paragraphs (1) through (4) of this subsection; or
(6) a political committee established by or on behalf of a person described in this subsection;
S. "principal of a state contractor" means, in addition to the state contractor:
(1) a person who is a member of the board of directors of, or has an ownership interest in, a state contractor, except for a person who owns less than five percent of the shares of a state contractor that is a publicly traded corporation;
(2) a person who is employed as president, treasurer, executive vice president or senior vice president of a state contractor that is a business entity;
(3) a person who is the chief executive officer of a state contractor;
(4) an employee of a state contractor who has managerial or discretionary responsibilities with respect to a state contract;
(5) the spouse or a dependent child of a person described in Paragraphs (1) through (4) of this subsection; or
(6) a political committee established by or on behalf of a person described in this subsection;
[O.] T. "proper filing officer" means either the secretary of state or the county clerk as provided in Section 1-19-27 NMSA 1978;
[P.] U. "public office" means an office that is subject to an election covered by the Campaign Reporting Act;
V. "public officer" or "public official" means a person elected to an office in an election covered by the Campaign Reporting Act or a person appointed to [an] a public office; [that is subject to an election covered by that act; and
Q.] W. "reporting individual" means every public official, candidate or treasurer of a campaign committee and every treasurer of a political committee;
X. "seeker of a targeted subsidy" means a person, including a business entity or nonprofit organization, that will directly benefit financially from a targeted subsidy;
Y. "state agency" means an office, department, board, council, commission, institution or other agency in the executive, legislative or judicial branch of state government;
Z. "state contract" means an agreement or transaction with a state agency or an instrumentality of the state having a value of twenty thousand dollars ($20,000) or more, or a combination or series of such agreements or transactions having a value of twenty thousand dollars ($20,000) or more, in a fiscal year for:
(1) the rendition of services, including professional services and financial services;
(2) the furnishing of any material, supplies or equipment;
(3) the construction, alteration or repair of any public building or public work;
(4) the acquisition, sale or lease of any land or building;
(5) a licensing arrangement;
(6) a loan or loan guarantee; or
(7) the purchase or sale of financial securities or instruments or the investment of public money;
AA. "state contractor" means a person, including a business entity or nonprofit organization, that enters into a state contract, which person shall be deemed to be a state contractor until the termination of the contract; but "state contractor" does not include the state or a political subdivision of the state or any full-time or part-time employee of the state or a political subdivision of the state in that person's capacity as an employee of the state or political subdivision of the state;
BB. "state public office" means the office of governor, lieutenant governor, attorney general, state treasurer, state auditor, secretary of state, commissioner of public lands, public regulation commissioner, state senator or state representative;
CC. "state public officer" means a person elected to or appointed to a state public office; and
DD. "targeted subsidy" means a financial benefit, including a tax exemption, credit or reduction in taxes, that is conferred by proposed legislation or the enactment of law on an entity that is:
(1) named in the legislation or law as its beneficiary; or
(2) described in the legislation or law in a particularized manner that is the functional equivalent of naming the entity as its beneficiary."
Section 7. REPEAL.--Laws 2009, Chapter 68, Section 2 is repealed.
Section 8. SEVERABILITY.--If any part or application of this act is held invalid, the remainder of its application to other situations or persons shall not be affected.
Section 9. EFFECTIVE DATE.--The effective date of the provisions of this act is November 3, 2010.
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