HB0311

HOUSE BILL 311

50th legislature - STATE OF NEW MEXICO - second session, 2012

INTRODUCED BY

Joseph Cervantes

AN ACT

RELATING TO ELECTIONS; REQUIRING PERSONS WHO MAKE ELECTIONEERING COMMUNICATIONS OR ENGAGE IN EXPRESS ADVOCACY TO REPORT CERTAIN DONATIONS, CONTRIBUTIONS AND EXPENDITURES; PROHIBITING THE ACCEPTANCE OF CONTRIBUTIONS FROM PERSONS THAT DO NOT DISCLOSE THE SOURCE OF CONTRIBUTIONS; PROHIBITING FINANCIAL TRANSACTIONS DESIGNED TO CONCEAL THE SOURCE OF CERTAIN CONTRIBUTIONS; REDEFINING "POLITICAL COMMITTEE" IN THE CAMPAIGN REPORTING ACT; INCREASING THE AMOUNT OF CONTRIBUTIONS AND EXPENDITURES THAT A CANDIDATE OR POLITICAL COMMITTEE MAY RECEIVE OR EXPEND BEFORE BEING REQUIRED TO REGISTER AND REPORT; PROVIDING DEFINITIONS FOR "CONTRIBUTION", "ELECTIONEERING COMMUNICATION", "EXPRESS ADVOCACY" AND "TAX-EXEMPT ORGANIZATION"; PROVIDING CERTAIN CIVIL PENALTIES; REMOVING CERTAIN CRIMINAL PENALTIES; IMPOSING CRIMINAL PENALTIES; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2009; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; DECLARING AN EMERGENCY.

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] ELECTIONEERING COMMUNICATIONS--REPORTING REQUIREMENTS--PENALTY.--A person who makes a payment for or a promise to pay for a communication that constitutes any electioneering communication of two thousand five hundred dollars ($2,500) or more in the aggregate in a calendar year that is not otherwise required to be reported as an expenditure by a candidate, campaign committee or political committee shall:

A. be considered a political committee for the purposes of and shall comply with the provisions of Section 1-19-26.1 NMSA 1978;

B. be considered a reporting individual for the purposes of the Campaign Reporting Act and provide all information required of reporting individuals by that act, provided that:

(1) only contributions deposited in and expenditures made from the bank account established pursuant to Section 1-19-26.1 NMSA 1978 are subject to the reporting requirements of the Campaign Reporting Act; provided that if a tax-exempt organization uses general treasury funds for the communication, that organization shall report the name and address of any person who has donated five thousand dollars ($5,000) or more to the organization in a calendar year, and for donors who are individuals, that organization shall also report the occupation and employer of the donor;

(2) the person may file a statement of no activity instead of a full report if there is less than five hundred dollars ($500) contributed to or expended from the bank account since the last report was filed; and

(3) as used in this subsection, an "electioneering communication expenditure" occurs when the earliest of the following occurs:

(a) a person enters into a contract for an electioneering communication;

(b) a person makes payment, in whole or in part, for an electioneering communication; or

C. not accept a contribution from a tax-exempt organization that does not publicly disclose the source of its contributions; and

D. if the person violates a provision of this section, be subject to civil damages of up to ten times the value of the contribution involved in the transaction. A district attorney or attorney general may institute a civil action to enforce the civil damages provided for in this section, which damages may be in addition to any penalties provided for in the Campaign Reporting Act and may be pursued regardless of whether other actions are taken pursuant to Section 1-19-34.4, 1-19-34.6 or 1-19-35 NMSA 1978."

SECTION 2. A new section of the Campaign Reporting Act is enacted to read:

"[NEW MATERIAL] CONCEALING THE SOURCE OF CONTRIBUTIONS PROHIBITED--CIVIL PENALTY.--

A. It is unlawful for a person to willfully conduct, structure, engage in or participate in a financial transaction that involves a contribution if the person knows, or should have known, that the financial transaction is designed deliberately in whole or in part to:

(1) avoid or evade the contribution limits in the Campaign Reporting Act; or

(2) conceal or disguise the source of the contribution to avoid a reporting requirement under the Campaign Reporting Act.

B. It is unlawful for any person to willfully create, establish or organize more than one organization with the intent to conceal or disguise the source of the contribution to:

(1) avoid or evade the contribution limits in the Campaign Reporting Act; or

(2) avoid a reporting requirement under the Campaign Reporting Act.

C. A person who violates any provision of Subsection A or B of this section is subject to civil damages of up to ten times the value of the contribution involved in the transaction. A district attorney or attorney general may institute a civil action to enforce the civil damages provided for in this section, which damages may be in addition to any penalties provided for in the Campaign Reporting Act and may be pursued regardless of whether other actions are taken pursuant to Section 1-19-34.4, 1-19-34.6 or 1-19-35 NMSA 1978.

D. Nothing in this section prohibits a contribution from a spouse, a minor child or a bona fide corporation."

SECTION 3. Section 1-19-26 NMSA 1978 (being Laws 1979, Chapter 360, Section 2, as amended by Laws 2009, Chapter 67, Section 1 and by Laws 2009, Chapter 68, Section 2) 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. "campaign committee" means [two] one 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. "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)] two thousand five hundred dollars ($2,500) or more or authorized another person or campaign committee to receive contributions or make expenditures of [one thousand dollars ($1,000)] two thousand five hundred dollars ($2,500) 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. "contribution":

(1) means:

(a) 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] or a payment of a debt incurred in an election campaign; or

(b) expenditures made by any person in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate committee or agents of a candidate or candidate's committee, which expenditures shall be considered to be a contribution to such candidate; but ["contribution"]

(2) 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. "deliver" or "delivery" means to deliver by certified or registered mail, telecopier, electronic transmission or facsimile or by personal service;

H. "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. "electioneering communication":

(1) means any communication conveyed by the internet, radio, television, telephone, cable, satellite or electronic broadcast; any print advertisement, including direct or bulk mailing; or any other means of mass communication that:

(a) refers to a candidate;

(b) is made during the seventy-five days preceding a primary or seventy-five days before the general election; and

(2) does not include:

(a) a voter guide allowed by the federal Internal Revenue Code of 1986 for Section 501(c) organizations;

(b) a judicial performance evaluation by the judicial performance evaluation commission concerning candidates in a judicial retention election;

(c) a communication from an organization to its own members or to persons who have requested the organization to send them information, or information conveyed on an organization's web site;

(d) 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;

(e) a communication made after the proclamation has been issued for a special legislative session, and ending on the twentieth day following the adjournment of the special session; or

(f) a communication for candidate debates or forums when the communication is paid for by or on behalf of the debate or forum sponsor;

[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":

(1) means any communication that asks the recipient to vote for or against a specific candidate and that is distributed via broadcast, cable, telephone, satellite, print or electronic media to voters living in the district that the candidate seeks to represent; but

(2) does not include:

(a) a communication from an organization to its own members or to persons who have requested the organization to send them information, or information conveyed on an organization's web site; or

(b) 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;

[K.] M. "person" means an individual or entity;

[L.] N. "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] an association of two or more persons, other than a candidate or campaign committee:

(1) a major purpose of which is to receive contributions or make expenditures for the nomination, election or defeat of a candidate;

(2) that accepts contributions for the purpose of expressly advocating for the election or defeat of a candidate; or

(3) that makes expenditures that expressly advocate for the election or defeat of a candidate;

[M.] O. "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.] P. "prescribed form" means a form or electronic format prepared and prescribed by the secretary of state;

[O.] Q. "proper filing officer" means either the secretary of state or the county clerk as provided in Section 1-19-27 NMSA 1978;

[P.] R. "public official" means a person elected to an office in an election covered by the Campaign Reporting Act or a person appointed to an office that is subject to an election covered by that act; [and

Q.] S. "reporting individual" means every public official, candidate or treasurer of a campaign committee and every treasurer of a political committee; and

T. "tax-exempt organization" means an organization that has been granted exemption from the federal income tax as an organization described in Section 501(c) of the Internal Revenue Code of 1986, as amended or renumbered."

SECTION 4. Section 1-19-26.1 NMSA 1978 (being Laws 1993, Chapter 46, Section 2, as amended) is amended to read:

"1-19-26.1. POLITICAL COMMITTEES--CANDIDATES--REGISTRATION--DISCLOSURES.--

A. It is unlawful for [any] a political committee or any candidate that receives, contributes or expends in excess of [five hundred dollars ($500) in any calendar year] two thousand five hundred dollars ($2,500) during a calendar year to continue to receive or make [any] a contribution or expenditure [for a political purpose] unless [that political committee appoints and maintains a treasurer and registers with the secretary of state]:

(1) a treasurer has been appointed and is constantly maintained; provided, however, that when a duly appointed treasurer is unable for any reason to continue as treasurer, the candidate or political committee shall appoint a successor; and provided further that a candidate may serve as the candidate's own treasurer;
(2) all disbursements of money and receipts of contributions are authorized by and through the candidate or treasurer;

(3) a separate bank account has been established and all receipts of money contributions and all expenditures of money are deposited in and disbursed from the one bank account maintained by the treasurer in the name of the candidate or political committee; provided that nothing in this section shall prohibit investments from the bank account to earn interest as long as the investments and earnings are fully reported. All disbursements, except for disbursements made from a petty cash fund of one hundred dollars ($100) or less, shall be by check made payable to the person or entity receiving the disbursement and not to "cash" or "bearer"; and

(4) the treasurer, upon disbursing or receiving money or other things of value, immediately enters and thereafter keeps a proper record preserved by the treasurer, including a full, true and itemized statement and account of each sum disbursed or received; the date of such disbursal or receipt; to whom disbursed or from whom received; and the object or purpose for which it was disbursed or received.

B. A political committee shall register with the secretary of state within ten days of receiving, contributing or expending in excess of [five hundred dollars ($500)] two thousand five hundred dollars ($2,500) by paying a filing fee of fifty dollars ($50.00) and filing a statement of organization under oath on a prescribed form showing:

(1) the full name of the political committee, which shall fairly and accurately reflect the identity of the committee, including any sponsoring organization, and its address;

(2) a statement of the purpose for which the political committee was organized;

(3) the name, address and relationship of any connected [or associated organization or entity] person;

(4) the names and addresses of the officers of the committee; and

(5) an identification of the bank used by the committee for all expenditures or contributions made or received.

C. The provisions of this section do not apply to a political committee that is located in another state and is registered with the federal election commission if the political committee reports on federal reporting forms filed with the federal election commission all expenditures for and contributions made to reporting individuals in New Mexico and files with the secretary of state, according to the schedule required for the filing of forms with the federal election commission, a copy of either the full report or the cover sheet and the portions of the federal reporting forms that contain the information on expenditures for and contributions made to reporting individuals in New Mexico."

SECTION 5. Section 1-19-34 NMSA 1978 (being Laws 1979, Chapter 360, Section 10, as amended) is amended to read:

"1-19-34. [CANDIDATES--POLITICAL COMMITTEES--TREASURER--BANK ACCOUNT] ANONYMOUS CONTRIBUTIONS--CONTRIBUTIONS FROM SPECIAL EVENTS.--

[A. It is unlawful for the members of any political committee or any candidate to make any expenditure or solicit or accept any contribution for a political purpose unless:

(1) a treasurer has been appointed and is constantly maintained; provided, however, when a duly appointed treasurer is unable for any reason to continue as treasurer, the candidate or political committee shall appoint a successor; and provided further that a candidate may serve as his own treasurer;

(2) all disbursements of money and receipts of contributions are authorized by and through the candidate or treasurer;

(3) a separate bank account has been established and all receipts of money contributions and all expenditures of money are deposited in and disbursed from the one bank account maintained by the treasurer in the name of the candidate or political committee; provided that nothing in this section shall prohibit investments from the bank account to earn interest as long as the investments and earnings are fully reported. All disbursements except for disbursements made from a petty cash fund of one hundred dollars ($100) or less shall be by check made payable to the person or entity receiving the disbursement and not to "cash" or "bearer"; and

(4) the treasurer upon disbursing or receiving money or other things of value immediately enters and thereafter keeps a proper record preserved by him, including a full, true and itemized statement and account of each sum disbursed or received, the date of such disbursal or receipt, to whom disbursed or from whom received and the object or purpose for which it was disbursed or received.

B.] A. No anonymous contributions may be accepted in excess of one hundred dollars ($100). The aggregate amount of anonymous contributions received by a reporting individual during a primary or general election or a statewide special election shall not exceed two thousand dollars ($2,000) for statewide races and five hundred dollars ($500) for all other races.

[C.] B. Cash contributions received at special events that are unidentifiable as to specific contributor but identifiable as to the special event are not subject to the anonymous contribution limits provided for in this section so long as no single special event raises, after expenses, more than one thousand dollars ($1,000) in such cash contributions. For those contributions, due diligence and best efforts shall be made to disclose on a special prescribed form the sponsor, date, place, total amount received, expenses incurred, estimated number of persons in attendance and other identifiable factors that describe the special event. For purposes of this subsection, "special event" includes an event such as a barbecue or similar fundraiser where tickets costing fifteen dollars ($15.00) or less are sold or an event such as a coffee, tea or similar reception.

[D.] C. Any contributions received pursuant to this section in excess of the limits established in Subsections [B and C] A and B of this section shall be donated to the state general fund or an organization to which a federal income tax deduction would be available under Subparagraph (A) of Paragraph (1) of Subsection (b) of Section 170 of the Internal Revenue Code of 1986, as amended."

SECTION 6. Section 1-19-34.3 NMSA 1978 (being Laws 1993, Chapter 46, Section 14, as amended) is amended to read:

"1-19-34.3. CONTRIBUTIONS IN ONE NAME GIVEN FOR ANOTHER PROHIBITED--CRIMINAL PENALTY.--

A. It is unlawful for a person to knowingly make a contribution in the name of another person, and no person shall knowingly accept a contribution made by one person in the name of another person.

B. A person who violates the provisions of this section is guilty of a fourth degree felony. The attorney general or district attorney may institute a criminal complaint for a violation of the provisions of this section in district court."

SECTION 7. Section 1-19-36 NMSA 1978 (being Laws 1979, Chapter 360, Section 12, as amended) is amended to read:

"1-19-36. PENALTIES--[CRIMINAL ENFORCEMENT] EXCEPTIONS.--

[A. Any person who knowingly and willfully violates any provision of the Campaign Reporting Act is guilty of a misdemeanor and shall be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than one year or both.

B. The Campaign Reporting Act may be enforced by the attorney general or the district attorney in the county where the candidate resides, where a political committee has its principal place of business or where the violation occurred.] The penalties provided for in Section 1-20-22 NMSA 1978 shall not apply to violations of provisions of the Campaign Reporting Act."

SECTION 8. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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