HOUSE BILL 891

49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY

W. Ken Martinez and Michael S. Sanchez

AN ACT

RELATING TO TAX-EXEMPT ORGANIZATIONS; REQUIRING REGULAR REPORTING OF CERTAIN CONTRIBUTIONS AND ELECTIONEERING COMMUNICATIONS EXPENDITURES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. A new section of the Charitable Solicitations Act is enacted to read:

     "[NEW MATERIAL] REPORTING REQUIREMENTS--ELECTIONEERING COMMUNICATION EXPENDITURES.--An entity granted an exemption from federal income tax by the United States commissioner of the internal revenue service pursuant to Section 501(c) of the federal Internal Revenue Code of 1986, as amended, and that engages in an electioneering communication shall file a disclosure report with the office of the attorney general as follows:

          A. if the electioneering communication occurs during the primary election, the entity shall file a report of activity listing:

                (1) all expenditures related to the electioneering communication, the purpose of the expenditure and the name and address of the person or entity to whom an expenditure was made;

                (2) each donation, grant or allocation received by the entity in excess of five thousand dollars ($5,000) and not previously reported, regardless of whether it is related to the electioneering communication;

                (3) the name and address of the person or entity from whom the donation, grant or allocation was received; and

                (4) the date the expenditure was made.

          B. reports during a primary election shall be filed as follows:

                (1) by 5:00 p.m. on the second Monday in May a report of activity occurring after the governor's proclamation of the election but before the first Monday in May;

                (2) by 5:00 p.m. on the Thursday before the day of the primary election a report of activity occurring on or after the first Monday in May but before 5:00 p.m. on the Tuesday before the day of the primary election; and

                (3) by 5:00 p.m. on the thirtieth day after the primary election a report of activity occurring after 5:00 p.m. on the Tuesday before the day of the primary election but before the day after the primary election and not previously reported;

          C. if the electioneering communication occurs during the general election, the entity shall file a report of activity listing:

                (1) all expenditures related to the electioneering communication, the purpose of the expenditure and the name and address of the person or entity to whom the expenditure was made;

                (2) each donation, grant or allocation received by the entity in excess of five thousand dollars ($5,000) and not previously reported, regardless of whether it is related to the electioneering communication;

                (3) the name and address of the person or entity from whom the donation, grant or allocation was received; and

                (4) the date the expenditure was made;

          D. reports during a general election shall be filed as follows:

                (1) by 5:00 p.m. on the second Monday in October a report of activity occurring after the primary election but before the first Monday in October;

                (2) by 5:00 p.m. on the Thursday before the day of the general election a report of activity occurring on or after the first Monday in October but before 5:00 p.m. on the Tuesday before the day of the general election; and

                (3) by 5:00 p.m. on the thirtieth day after the general election a report of activity occurring after 5:00 p.m. on the Tuesday before the day of the general election but before the day after the general election and not previously reported;

          E. reports required by this section shall be filed electronically by all reporting entities;

          F. reporting entities may apply to office of the attorney general for exemption from electronic filing in case of hardship, which shall be defined by office of the attorney general; and

          G. the office of the attorney general shall ensure that, to the greatest extent practicable, the information required to be disclosed under this subsection is publicly available through the office of the attorney general web site in a manner that is searchable, sortable and downloadable."

     Section 2. Section 57-22-3 NMSA 1978 (being Laws 1983, Chapter 140, Section 3, as amended) is amended to read:

     "57-22-3. DEFINITIONS.--As used in the Charitable Solicitations Act:

          A. "charitable organization" means [any] an entity that has been granted exemption from the federal income tax by the United States commissioner of internal revenue as an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or identifies itself to the public as having a charitable purpose;

          B. "charitable purpose" means a benevolent, social welfare, scientific, educational, environmental, philanthropic, humane, patriotic, public health, civic or other eleemosynary objective or an activity conducted in support of or in the name of law enforcement officers, firefighters or other persons who protect public safety;

          C. "contribution" means the promise, grant or pledge of [any] money, credit or property of any kind or value provided to a charitable organization in response to a solicitation, but does not include program service revenue or bona fide membership fees, dues or assessments; provided that bona fide membership fees, dues or assessments do not include contributions made in exchange for membership in a charitable organization unless membership confers rights and benefits in addition to receiving literature of the charitable organization;

          D. "educational institution" means:

                (1) an entity organized and operated primarily as a school, college or other instructional institution with a defined curriculum, student body and faculty, conducting classes on a regular basis; and

                (2) auxiliary entities, including parent-teacher organizations, booster and support clubs that support, encourage or promote a school, college or other instructional institution and its defined curriculum, student body, faculty, facilities or activities;

          E. "electioneering communication":

                (1) means any radio, television, cable or satellite broadcast and any print advertisement, including direct or bulk mailings, that:

                     (a) refers to a clearly identified candidate for state office;

                     (b) is made during a primary or general election for the office sought by the candidate; and

                     (c) is targeted to the relevant electorate; and

                (2) does not include a communication appearing in a news story, commentary or editorial distributed through the print media or the facilities of any broadcasting station, unless such facilities or print media are owned or controlled by any political party, political committee or candidate;

          F. "general election" means the period beginning on the day after the primary election and ending on the day of the general election;

          G. "primary election" means the period beginning on the day of the governor's proclamation of the election and ending on the day of the primary election;

          [E.] H. "professional fundraiser" means a person that solicits or employs or directs others to solicit contributions from the public on behalf of a charitable organization in exchange for compensation and has custody or control of the contributions; provided that "professional fundraiser" does not include a director, officer, bona fide employee or salaried officer, volunteer, attorney, accountant or investment counselor of a charitable organization;

          [F.] I. "professional fundraising counsel" means a person that provides services or employs or directs others to provide services for compensation to a charitable organization in the solicitation of contributions, including managing or preparing materials to be used in conjunction with [any] a solicitation; provided that the person does not:

                (1) directly solicit contributions; or

                (2) receive, have access to or control any contribution received in response to the solicitation; provided further that "professional fundraising counsel" does not include a director, officer, bona fide employee or salaried officer, volunteer, attorney, accountant or investment counselor of a charitable organization;

          [G.] J. "religious organization" means a church, organization or group organized for the purpose of divine worship or religious teaching or other specific religious activity or any other organization that is formed in association with or to primarily encourage, support or promote the work, worship, fellowship or teaching of the church, organization or group; and

          [H.] K. "solicit" or "solicitation" means [any] a communication requesting a contribution or offering an opportunity to participate in a game of chance, raffle or similar event with the representation that the contribution or participation will support a charitable purpose, and includes:

                (1) [any] a verbal request made in person or by telephone, radio, television, electronic communication or other media;

                (2) [any] a written or published request mailed, sent, delivered, circulated, distributed, posted in a public place, advertised or communicated through any medium to the public;

                (3) [any] a sale or an attempt to sell a good or service; and

                (4) [any] an invitation to attend an assembly, event, exhibition, performance or social gathering of any kind.

     A contribution is not required for a solicitation to have occurred, and "solicit" or "solicitation" does not include direct grants or allocation of funds received or solicited from [any] an affiliated fundraising organization by a member agency or unsolicited contributions received from [any] an individual donor, foundation, trust, governmental agency or other source, unless such contributions are received in conjunction with a solicitation drive."

    Section 3. Section 57-22-4 NMSA 1978 (being Laws 1983, Chapter 140, Section 4, as amended) is amended to read:

    "57-22-4. APPLICATION OF ACT.--

         A. Except for the reporting requirements for entities that engage in electioneering communications, the Charitable Solicitations Act shall not apply to a religious organization, even if it is a charitable organization.         B. Exempt from the registration and reporting requirements of the Charitable Solicitations Act, other than the reporting requirements for entities that engage in electioneering communications, are:             (1) educational institutions and organizations defined in Section 6-5A-1 NMSA 1978; and

             (2) persons soliciting for an individual or group that has suffered a medical or other catastrophe and:

                  (a) the individual or group is identified by name at the time of the solicitation;

                  (b) the purpose for the solicited contribution is clearly stated; and

                  (c) the gross contributions collected, without any deductions for or by the solicitor or any other person, are deposited directly to an account in the name of the individual or group in a local federally insured financial institution established for that sole purpose and solely used for the direct benefit of the named individual or group as beneficiary.

         C. The Charitable Solicitations Act shall apply to charitable organizations and professional fundraisers."

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