Relates to the defining the term "express advocacy".
TITLE OF BILL: An act to amend the election law, in relation to defining the term "express advocacy"
SUBJECT AND PURPOSE: To enhance and strengthen New York State's campaign finance laws by defining, for the first time in New York State law, the terms "independent expenditure" and "express advocacy." This bill aims to ensure that entities engaged in express advocacy of candidates are captured by the registration and disclosure provisions of the election law.
SUMMARY AND DESCRIPTION OF PROVISIONS: The bill adds new subdivisions 12 and 13 to § 14-100 of the Election Law to define "express advocacy" and "independent expenditure", respectively.
The new definition of "express advocacy" captures, and subjects to full disclosure under the Election Law, those entities that are engaged in express advocacy activity which has heretofore not been captured by the statute.
The new definition of "independent expenditure" expands the definition of this term as recently adopted by the New York State Board of Elections in its regulations. This new definition states that independent expenditures also include references to "clearly identified candidates" as set forth in the definition of "express advocacy."
LEGISLATIVE HISTORY: None.
JUSTIFICATION: This bill will bolster and tighten New York State's campaign finance laws by mandating that those organizations engaging in express advocacy of candidates fully disclose their sources of funding and how much they spend on political communications and thereby giving citizens a clearer view of the election-related communications landscape.
The nexus of New York State's current definition of "express advocacy" (contained in SBOE regulations) is found in the 1976 U.S. Supreme Court decision Buckley v. Valeo. In Buckley, the Supreme Court, amongst other things, held that use of certain words (later deemed the "eight magic words") in an election-related communication rendered that communication "express advocacy" and therefore subject to limits and disclosure under federal campaign finance laws.
Following the reasoning in Buckley, New York law currently only requires financial disclosure for organizations engaging in election-related communications which expressly advocates for or against candidates using any of the "eight magic words."
Both the Federal Election Commission and the Campaign Finance Board of the city of New York have adopted a "functional equivalent" standard regarding "express advocacy." This means that if an election-related communication does not contain any of the "eight magic words" but rather the functional equivalent of them, then such election-related communication shall be deemed "express advocacy" and subject to full disclosure. This bill strengthens New York State campaign finance law
by broadening its scope though incorporation of this "functional equivalent" standard.
It is particularly important that the "functional equivalent" standard be written into New York law now, a time when the involvement of independent expenditure groups in our elections are on the rise and their support or opposition of candidates has reached new levels.
FISCAL IMPLICATIONS: There will be additional costs to the State Board of Elections for oversight and enforcement duties associated with the changes contained herein.
EFFECTIVE DATE: This act takes effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 1460 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. STEWART-COUSINS -- read twice and ordered printed, and when printed to be committed to the Committee on Elections AN ACT to amend the election law, in relation to defining the term "express advocacy" THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 1 of section 14-100 of the election law, as amended by chapter 71 of the laws of 1988, is amended to read as follows: 1. "political committee" means any corporation aiding or promoting and any committee, political club or combination of one or more persons operating or co-operating to aid or to promote the success or defeat of a political party or principle, or of any ballot proposal; or to aid or take part in the election or defeat of a candidate for public office or to aid or take part in the election or defeat of a candidate for nomi- nation at a primary election or convention, including all proceedings prior to such primary election, or of a candidate for any party position voted for at a primary election, or to aid or defeat the nomination by petition of an independent candidate for public office; but nothing in this article shall apply to any committee or organization for the discussion or advancement of political questions or principles without connection with any vote or to a national committee organized for the election of presidential or vice-presidential candidates; PROVIDED HOWEVER THAT EXPRESS ADVOCACY AS DEFINED BY SUBDIVISION TWELVE OF THIS SECTION SHALL BE SUBJECT TO THE PROVISIONS OF THIS ARTICLE; provided,
[however]FURTHER, that a person or corporation making contribution or contributions to a candidate or a political committee which has filed pursuant to section 14-118 OF THIS ARTICLE shall not, by that fact alone, be deemed to be a political committee as herein defined.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02373-01-3 S. 1460 2
S 2. Section 14-100 of the election law is amended by adding two new subdivisions 12 and 13 to read as follows: 12. "EXPRESS ADVOCACY" MEANS A COMMUNICATION: (1) THAT CONTAINS EXPRESS WORDS SUCH AS VOTE, OPPOSE, SUPPORT, ELECT, DEFEAT, OR REJECT, WHICH CALL FOR THE ELECTION OR DEFEAT OF A CANDIDATE, OR (2) WHEN TAKEN AS A WHOLE WITH LIMITED REFERENCE TO EXTERNAL EVENTS, SUCH AS THE PROXIMITY TO THE ELECTION, COULD ONLY BE INTERPRETED BY A REASONABLE PERSON AS CONTAINING ADVOCACY OF THE ELECTION OR DEFEAT OF ONE OR MORE CLEARLY IDENTIFIED CANDIDATES BECAUSE: (A) THE ELECTORAL PORTION OF THE COMMUNICATION IS UNMISTAKABLE, UNAM- BIGUOUS, AND SUGGESTIVE OF ONLY ONE MEANING; AND (B) REASONABLE MINDS COULD NOT DIFFER AS TO WHETHER IT ENCOURAGES ACTIONS TO ELECT OR DEFEAT ONE OR MORE CLEARLY IDENTIFIED CANDIDATES OR ENCOURAGES SOME OTHER KIND OF ACTION. 13. "INDEPENDENT EXPENDITURE" MEANS AN EXPENDITURE MADE IN SUPPORT OR OPPOSITION OF A CANDIDATE: (I) THAT EXPRESSLY ADVOCATES FOR THE ELECTION OR DEFEAT OF A CLEARLY IDENTIFIED CANDIDATE; AND (II) THAT THE CANDIDATE OR HIS OR HER AGENTS OR AUTHORIZED POLITICAL COMMITTEE(S) DID NOT AUTHORIZE, REQUEST, SUGGEST, FOSTER OR COOPERATE WITH IN ANY WAY. S 3. This act shall take effect immediately.