STATE OF NEW YORK
________________________________________________________________________
S. 8405 A. 11588
SENATE - ASSEMBLY
June 28, 2010
___________
IN SENATE -- Introduced by Sen. SAMPSON -- read twice and ordered print-
ed, and when printed to be committed to the Committee on Rules
IN ASSEMBLY -- Introduced by COMMITTEE ON RULES -- (at request of M. of
A. Silver) -- read once and referred to the Committee on Election Law
AN ACT to amend the election law, in relation to a state board of
elections enforcement unit and counsel, personal use of campaign
funds, filing requirements, political communication, independent
expenditure reporting, enforcement proceeding and penalties for
violations; and to repeal certain provisions of such law relating to
filing of statements
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as "The Campaign
2 Finance Enforcement Act of 2010."
3 § 1-a. Subdivision 3 of section 3-100 of the election law, as amended
4 by chapter 220 of the laws of 2005, is amended to read as follows:
5 3. The commissioners of the state board of elections shall have no
6 other public employment. The commissioners shall receive an annual sala-
7 ry of twenty-five thousand dollars, within the amounts made available
8 therefor by appropriation. The board shall, for the purposes of sections
9 seventy-three and seventy-four of the public officers law, be a "state
10 agency", and such commissioners shall be "officers" of the state board
11 of elections for the purposes of such sections. Within the amounts made
12 available by appropriation therefor, the state board of elections shall
13 appoint two co-executive directors, [counsel] an enforcement counsel, a
14 deputy enforcement counsel, who shall be a member of a different major
15 political party than the enforcement counsel, a special counsel, a depu-
16 ty special counsel, who shall be a member of a different major political
17 party than the special counsel, a director of election operations, a
18 deputy director of election operations, who shall be a member of a
19 different major political party than the director of election oper-
20 ations, a director of public information, a deputy director of public
21 information, who shall be a member of a different major political party
22 than the director of public information and such other staff members as
23 are necessary in the exercise of its functions, and may fix their
24 compensation. [Anytime after the effective date of the chapter of the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD17926-02-0
S. 8405 2 A. 11588
1 laws of two thousand five which amended this subdivision, the] The
2 commissioners or, in the case of a vacancy on the board, the commission-
3 er of each of the major political parties shall appoint one co-executive
4 director. Each co-executive director shall serve a term of four years.
5 The enforcement counsel and the special counsel shall each serve a term
6 of four years and may only be removed for cause. Any time after the
7 effective date of the chapter of the laws of two thousand ten amending
8 this subdivision, the commissioners, or in the case of a vacancy on the
9 board, the commissioner, of each of the same major political party as
10 the incumbent enforcement counsel, deputy enforcement counsel, special
11 counsel, deputy special counsel, director of election operations, deputy
12 director of election operations, director of public information and
13 deputy director of public information, shall appoint such counsels,
14 directors and deputies. Any vacancy in the office of co-executive direc-
15 tor, enforcement counsel, deputy enforcement counsel, special counsel,
16 deputy special counsel, director of election operations, deputy director
17 of election operations, director of public information and deputy direc-
18 tor of public information, shall be filled by the commissioners or, in
19 the case of a vacancy on the board, the commissioner of the same major
20 political party as the vacating incumbent for the remaining period of
21 the term of such vacating incumbent, for the remaining period of the
22 term of such vacating incumbent.
23 § 2. Subdivision 3, paragraph (c) of subdivision 9-A and subdivision
24 17 of section 3-102 of the election law, subdivisions 3 and 17 as
25 amended by chapter 9 of the laws of 1978, paragraph (c) of subdivision
26 9-A as added by chapter 430 of the laws of 1997 and subdivision 17 as
27 renumbered by chapter 23 of the laws of 2005, are amended to read as
28 follows:
29 3. conduct any investigation necessary to carry out the provisions of
30 this chapter, provided, however, that the state board of elections
31 enforcement counsel, established pursuant to section 3-104 of this arti-
32 cle, shall conduct any investigation necessary to enforce the provisions
33 of article fourteen of this chapter on behalf of the board of elections;
34 (c) establish [a] an educational and training program on all reporting
35 requirements including but not limited to the electronic reporting proc-
36 ess and make it easily and readily available to any such candidate or
37 committee and notify any such candidate or committee of the availability
38 of the most recent campaign finance handbook;
39 17. hear and consider the recommendations of the state board of
40 elections enforcement counsel regarding the enforcement of violations of
41 article fourteen of this chapter;
42 18. perform such other acts as may be necessary to carry out the
43 purposes of this chapter.
44 § 3. Section 3-104 of the election law, subdivisions 1, 3, 4 and 5 as
45 redesignated and subdivision 2 as amended by chapter 9 of the laws of
46 1978, is amended to read as follows:
47 § 3-104. State board of elections and the state board of elections
48 enforcement counsel; enforcement powers. 1. (a) There shall be a unit
49 known as the state board of elections enforcement unit established with-
50 in the state board of elections. The head of such unit shall be the
51 enforcement counsel.
52 (b) The state board of elections shall have jurisdiction of, and be
53 responsible for, the execution and enforcement of the provisions of
54 [article fourteen of this chapter and other] statutes governing
55 campaigns, elections and related procedures; provided however that the
56 enforcement counsel shall have sole authority within the state board of
S. 8405 3 A. 11588
1 elections to investigate on his or her own initiative or upon complaint,
2 alleged violations of article fourteen of this chapter and all
3 complaints alleging article fourteen violations shall be forwarded to
4 the enforcement unit. Nothing in this section shall be construed to
5 diminish or alter the state board of elections' jurisdiction pursuant to
6 this chapter.
7 2. (a) Whenever [the state board of elections or other] a local board
8 of elections shall determine, on its own initiative or upon complaint,
9 or otherwise, that there is substantial reason to believe a violation of
10 this chapter or any code or regulation promulgated thereunder has
11 [occurred] been committed by a candidate or political committee that
12 files statements required by article fourteen of this chapter solely
13 with such local board, it shall expeditiously make an investigation
14 which shall also include investigation of reports and statements made or
15 failed to be made by the complainant and any political committee
16 supporting his candidacy if the complainant is a candidate or, if the
17 complaint was made by an officer or member of a political committee, of
18 reports and statements made or failed to be made by such political
19 committee and any candidates supported by it. [The state board of
20 elections, in lieu of making such an investigation, may direct the
21 appropriate board of elections to make an investigation.]
22 (b) The state board of elections may request, and shall receive, the
23 assistance of the state police in any investigation it shall conduct.
24 [3. If, after an investigation, the state or other board of elections
25 finds reasonable cause to believe that a violation warranting criminal
26 prosecution has taken place, it shall forthwith refer the matter to the
27 district attorney of the appropriate county and shall make available to
28 such district attorney all relevant papers, documents, testimony and
29 findings relevant to its investigation.
30 4. The state or other board of elections may, where appropriate,
31 commence a judicial proceeding with respect to the filing or failure to
32 file any statement of receipts, expenditures, or contributions, under
33 the provisions of this chapter, and the state board of elections may
34 direct the appropriate other board of elections to commence such
35 proceeding.
36 5.] 3. If the enforcement counsel determines that a violation of
37 subdivision one of section 14-126 of this chapter has occurred which
38 could warrant a civil penalty, the enforcement counsel shall, upon his
39 or her discretion, seek to resolve the matter extra-judicially or
40 commence a special proceeding in the supreme court pursuant to section
41 16-114 of this chapter.
42 4. Upon receipt of a complaint and supporting information alleging
43 any other violation of article fourteen of this chapter, the enforcement
44 counsel shall analyze the complaint to determine if an investigation
45 should be undertaken. The enforcement counsel shall, if necessary,
46 request additional information from the complainant to assist such coun-
47 sel in making this determination. Such analysis shall include the
48 following: first, whether the allegations, if true, would constitute a
49 violation of article fourteen of this chapter and, second, whether the
50 allegations are supported by credible evidence.
51 5. If the enforcement counsel determines that the allegations, if
52 true, would not constitute a violation of article fourteen of this chap-
53 ter or that the allegations are not supported by credible evidence, he
54 or she shall issue a letter to the complainant dismissing the complaint.
55 6. If the enforcement counsel determines that the allegations, if
56 true, would constitute a violation of article fourteen of this chapter
S. 8405 4 A. 11588
1 and that the allegations appear to be supported by credible evidence, he
2 or she shall notify the state board of elections of (a) his or her
3 intent to resolve the matter extra-judicially due to the de minimus
4 nature of the violation; or (b) his or her intent to commence an inves-
5 tigation, no later than the board's next regularly scheduled meeting.
6 Notification shall summarize the relevant facts and the applicable law
7 and shall, to the extent possible, protect from public disclosure the
8 identity of the complainant and the individual subject to the complaint.
9 7. If, upon considering the enforcement counsel's notice of intent to
10 commence an investigation, the state board of elections believes that
11 the allegations, if true, would not constitute a violation of article
12 fourteen of this chapter, or the allegations are not supported by credi-
13 ble evidence or, that on balance, the equities favor a dismissal of the
14 complaint, the board shall publicly direct that an investigation not be
15 undertaken no later than sixty days after the receipt of notification
16 from the enforcement counsel of his or her intent to commence an inves-
17 tigation. In determining whether the equities favor a dismissal of the
18 complaint, the state board of elections shall consider the following
19 factors: (a) whether the complaint alleges a de minimus violation of
20 article fourteen of this chapter; (b) whether the subject of the
21 complaint has made a good faith effort to correct the violation; and (c)
22 whether the subject of the complaint has a history of similar
23 violations. Determinations of the state board of elections to dismiss a
24 complaint and not proceed with a formal investigation shall be voted
25 upon as provided in subdivision four of section 3-100 of this title at
26 an open meeting pursuant to article seven of the public officers law,
27 and shall be made on a fair and equitable basis and without regard to
28 the status of the subject of the complaint.
29 8. Absent a timely determination by the state board of elections that
30 an investigation shall not be undertaken, the enforcement counsel shall
31 commence an investigation on a timely basis. If the enforcement counsel
32 determines that additional investigative powers, as provided for in
33 subdivisions four, five and six of section 3-102 of this title, are
34 needed to complete the counsel's investigation, he or she shall request
35 such additional powers from the state board of elections. Such powers
36 shall be granted by the board in public, as provided in subdivision four
37 of section 3-100 of this title, only when the board finds that further
38 investigation is warranted and justified.
39 9. At the conclusion of its investigation, the enforcement counsel
40 shall provide the state board of elections with a written recommendation
41 as to: (a) whether substantial reason exists to believe a violation of
42 article fourteen of this chapter has occurred and, if so, the nature of
43 the violation and any applicable penalty, as defined in section 14-126
44 of this chapter, based on the nature of the violation; (b) whether the
45 matter should be resolved extra-judicially; (c) whether a special
46 proceeding should be commenced in the supreme court to recover a civil
47 penalty; and (d) whether a referral should be made to a district attor-
48 ney pursuant to subdivision eleven of this section because reasonable
49 cause exists to believe a violation warranting criminal prosecution has
50 taken place.
51 10. The state board of elections shall accept, modify or reject the
52 enforcement counsel's recommendation no later than sixty days after
53 receipt of such recommendation. In making its determination, the board
54 shall again consider: (a) whether the complaint alleges a de minimus
55 violation of article fourteen of this chapter; (b) whether the subject
56 of the complaint has made a good faith effort to correct the violation;
S. 8405 5 A. 11588
1 and (c) whether the subject of the complaint has a history of similar
2 violations. All such determinations shall be voted upon as provided in
3 subdivision four of section 3-100 of this title at an open meeting
4 pursuant to article seven of the public officers law, and shall be made
5 on a fair and equitable basis, without regard to the status of the
6 subject of the complaint.
7 11. (a) If the state board of elections determines, as provided in
8 subdivision ten of this section, that substantial reason exists to
9 believe that a person, acting as or on behalf of a candidate or poli-
10 tical committee under circumstances evincing an intent to violate such
11 law, has unlawfully accepted a contribution in excess of a contribution
12 limitation established in article fourteen of this chapter, which could
13 warrant a civil penalty as provided for in subdivision three of section
14 14-126 of this chapter, the board shall direct the commencement of a
15 special proceeding in the supreme court pursuant to section 16-122 of
16 this chapter.
17 (b) If the state board of elections determines, as provided in subdi-
18 vision ten of this section that reasonable cause exists to believe a
19 violation warranting criminal prosecution has taken place, the board
20 shall refer the matter to a district attorney and shall make available
21 to such district attorney all papers, documents, testimony and findings
22 relevant to its investigation.
23 12. Upon notification that a special proceeding has been commenced by
24 a party other than the state board of elections, pursuant to section
25 16-114 of this chapter, the state board of elections shall direct the
26 enforcement counsel to investigate the alleged violations unless other-
27 wise directed by the court.
28 13. The enforcement counsel shall prepare a report, to be included in
29 the annual report to the governor and legislature, summarizing the
30 activities of the unit during the previous year. Such report shall
31 include: (i) the number of complaints received; (ii) the number of
32 complaints that were found to need investigation and the nature of each
33 complaint; and (iii) the number of matters that have been resolved. The
34 report shall not contain any information for which disclosure is not
35 permitted.
36 14. The state board of elections may promulgate rules and regulations
37 consistent with law to effectuate the provisions of this section.
38 § 4. The state of New York shall appropriate during each fiscal year
39 to the New York state board of elections enforcement unit, not less than
40 thirty-five percent of the appropriation available from the general fund
41 for the state board of elections to pay for the expenses of such
42 enforcement unit.
43 § 5. The election law is amended by adding a new section 3-111 to read
44 as follows:
45 § 3-111. Personal use of campaign funds. Upon written request from any
46 person who is subject to the requirements of section 14-130 of this
47 chapter, the state board of elections shall render formal opinions on
48 the requirements of said provision. An opinion rendered by the board,
49 until and unless amended or revoked, shall be binding on the board in
50 any subsequent proceeding concerning the person who requested the opin-
51 ion and who acted in good faith, unless material facts were omitted or
52 misstated by the person in the request for an opinion. Such opinion may
53 also be relied upon by such person, and may be introduced and shall be
54 defense in any criminal or civil action. Such request shall be confiden-
55 tial, but the board shall publish such opinions provided that the name
S. 8405 6 A. 11588
1 of the requesting person and other identifying details shall not be
2 included in the publication.
3 § 6. Section 14-100 of the election law is amended by adding three new
4 subdivisions 12, 13 and 14 to read as follows:
5 12. "clearly identified candidate" means that:
6 (a) the name of the candidate involved appears;
7 (b) a photograph or drawing of the candidate appears; or
8 (c) the identity of the candidate is apparent by unambiguous refer-
9 ence.
10 13. "general public audience" means an audience composed of members of
11 the public, including a targeted subgroup of members of the public;
12 provided, however, it does not mean an audience solely comprised of
13 members, retirees and staff of a labor organization or their immediate
14 family members or an audience solely comprised of employees of a busi-
15 ness entity or members of a business, trade or professional association.
16 14. "labor organization" means any organization of any kind which
17 exists for the purpose, in whole or in part, of representing employees
18 employed within the state of New York in dealing with employers or
19 employer organizations or with a state government, or any political or
20 civil subdivision or other agency thereof, concerning terms and condi-
21 tions of employment, grievances, labor disputes, or other matters inci-
22 dental to the employment relationship. For the purposes of this arti-
23 cle, each local, parent national or parent international organization of
24 a statewide labor organization, and each statewide federation receiving
25 dues from subsidiary labor organizations, shall be considered a separate
26 labor organization.
27 § 7. Subdivision 5 of section 14-102 of the election law is REPEALED,
28 subdivisions 1 and 3, as amended by chapter 8 of the laws of 1978,
29 subdivision 1 as redesignated by chapter 9 of the laws of 1978 and
30 subdivision 3 as renumbered by chapter 70 of the laws of 1983, are
31 amended and a new subdivision 5 is added to read as follows:
32 1. The treasurer of every political committee which, or any officer,
33 member or agent of any such committee who, in connection with any
34 election, receives or expends any money or other [valuable thing] item
35 of value or incurs any liability to pay money or its equivalent shall
36 file statements sworn, or subscribed and bearing a form notice that
37 false statements made therein are punishable as a class A misdemeanor
38 pursuant to section 210.45 of the penal law, at the times prescribed by
39 this article setting forth all the receipts, contributions to and the
40 expenditures by and liabilities of the committee, and of its officers,
41 members and agents in its behalf. Such statements shall include the
42 dollar amount of any receipt, contribution or transfer, or the fair
43 market value of any receipt, contribution or transfer, which is other
44 than of money, the name and address of the transferor, contributor or
45 person from whom received, and if the transferor, contributor or person
46 is a political committee; the name of and the political unit represented
47 by the committee, the date of its receipt, the dollar amount of every
48 expenditure, the name and address of the person to whom it was made or
49 the name of and the political unit represented by the committee to which
50 it was made and the date thereof, and shall state clearly the purpose of
51 such expenditure. If any one expenditure is made for more than one
52 purpose, or as payment for goods or services supplied by more than one
53 supplier, such statement shall set forth separately each such purpose or
54 supplier and the amount expended for each such purpose or to each such
55 supplier.
S. 8405 7 A. 11588
1 Any statement reporting a loan shall have attached to it a copy of the
2 evidence of indebtedness. Expenditures in sums under fifty dollars need
3 not be specifically accounted for by separate items in said statements,
4 and receipts and contributions aggregating not more than ninety-nine
5 dollars, from any one contributor need not be specifically accounted for
6 by separate items in said statements, provided however, that such
7 expenditures, receipts and contributions shall be subject to the other
8 provisions of section 14-118 of this article.
9 3. The state board of elections shall promulgate regulations with
10 respect to the accounting methods to be applied in complying with, and
11 in preparing the statements required by, the provisions of this article
12 and shall provide forms suitable for such statements. Such regulations
13 shall be drawn to assure such compliance and obtain the maximum possible
14 disclosure.
15 5. (a) Pursuant to the provisions of this section, any candidate
16 and/or political committee which is required to file statements with a
17 county board of elections or with the board of elections of the city of
18 New York, which raises or spends or expects to raise or spend more than
19 one thousand dollars during any calendar year, in addition to filing
20 such statements with such boards of elections in the filing format
21 required thereby, shall also file such statements electronically with
22 the state board of elections pursuant to its electronic reporting
23 system, established pursuant to subdivision nine-A of section 3-102 of
24 this chapter, or on paper if an exemption from the electronic filing
25 requirements has been granted by the state board of elections pursuant
26 to subdivision four of this section or subdivision two of section 14-104
27 of this title.
28 (b) Notwithstanding the provisions of paragraph (a) of this subdivi-
29 sion, any statements filed electronically, or on paper if exempted, with
30 the state board of elections by a candidate and/or political committee
31 which is required to file such statements electronically with the state
32 board of elections pursuant to paragraph (a) of this subdivision, shall
33 satisfy the filing requirements of this section with regards to filing
34 with the applicable county or city board of elections. The county and
35 city boards of elections shall make statements filed with the state
36 board of elections, which would otherwise have been filed specifically
37 with their individual board pursuant to paragraph (a) of this subdivi-
38 sion, available for public inspection and copying via electronic
39 connection to the state board of elections' website, which will contain
40 such statements, or by such other mode of electronic communication that
41 is available and approved by the state board of elections for such
42 purposes.
43 (c) Any candidate and/or political committee which is required to file
44 statements with a county board of elections or with the board of
45 elections of the city of New York pursuant to the provisions of this
46 section, which is not required to file such statements with the state
47 board of elections pursuant to paragraph (a) of this subdivision, may
48 not elect to file such statements with the state board of elections
49 pursuant to paragraph (b) of this subdivision in substitution for, or in
50 satisfaction of, the requirement to file with the applicable county or
51 city board of elections.
52 § 8. Subdivision 3 of section 14-104 of the election law is REPEALED
53 and a new subdivision 3 is added to read as follows:
54 3. (a) Pursuant to the provisions of this section, any candidate
55 and/or political committee which is required to file statements with a
56 county board of elections or with the board of elections of the city of
S. 8405 8 A. 11588
1 New York, which raises or spends or expects to raise or spend more than
2 one thousand dollars during any calendar year, in addition to filing
3 such statements with such boards of elections in the filing format
4 required thereby, shall also file such statements electronically with
5 the state board of elections pursuant to its electronic reporting
6 system, established pursuant to subdivision nine-A of section 3-102 of
7 this chapter, or on paper if an exemption from the electronic filing
8 requirements has been granted by the state board of elections pursuant
9 to subdivision four of section 14-102 of this title or subdivision two
10 of this section.
11 (b) Notwithstanding the provisions of paragraph (a) of this subdivi-
12 sion, any statements filed electronically, or on paper if exempted, with
13 the state board of elections by a candidate and/or political committee
14 which is required to file such statements electronically with the state
15 board of elections pursuant to paragraph (a) of this subdivision, shall
16 satisfy the filing requirements of this section with regards to filing
17 with the applicable county or city board of elections. The county and
18 city boards of elections shall make statements filed with the state
19 board of elections, which would otherwise have been filed specifically
20 with their individual board pursuant to paragraph (a) of this subdivi-
21 sion, available for public inspection and copying via electronic
22 connection to the state boards of elections' website, which will contain
23 such statements, or by such other mode of electronic communication that
24 is available and approved by the state board of elections for such
25 purposes.
26 (c) Any candidate and/or political committee which is required to file
27 statements with a county board of elections or with the board of
28 elections of the city of New York pursuant to the provisions of this
29 section, which is not required to file such statements with the state
30 board of elections pursuant to paragraph (a) of this subdivision, may
31 not elect to file such statements with the state board of elections
32 pursuant to paragraph (b) of this subdivision in substitution for, or in
33 satisfaction of, the requirement to file with the applicable county or
34 city board of elections.
35 § 9. Section 14-106 of the election law, as amended by chapter 8 of
36 the laws of 1978, is amended to read as follows:
37 § 14-106. Political [advertisements and literature] communication. 1.
38 The statements required to be filed under the provisions of this article
39 next succeeding a primary, general or special election shall be accompa-
40 nied by a [facsimile or] copy of all broadcast, cable or satellite sche-
41 dules and scripts, advertisements, pamphlets, circulars, flyers,
42 brochures, letterheads and other printed matter purchased or produced
43 [and a schedule of all radio or television time, and scripts used there-
44 in], and reproductions of statements or information conveyed to five
45 hundred or more members of a general public audience by computer or
46 other electronic device, purchased in connection with such election by
47 or under the authority of the person filing the statement or the commit-
48 tee or the person on whose behalf it is filed, as the case may be. Such
49 [facsimiles,] copies, schedules and scripts shall be preserved by the
50 officer with whom or the board with which it is required to be filed for
51 a period of one year from the date of filing thereof.
52 2. No person, political party or committee shall, during the course of
53 any campaign for nomination or election to public office or party posi-
54 tion, prepare or distribute any political communication that falsely
55 identifies the source of such communication.
S. 8405 9 A. 11588
1 § 10. The election law is amended by adding a new section 14-107 to
2 read as follows:
3 § 14-107. Independent expenditure reporting. 1. For purposes of this
4 article:
5 (a) "Independent expenditure" means an expenditure made by a person
6 for an audio or video communication to a general public audience via
7 broadcast, cable or satellite or a written communication to a general
8 public audience via advertisements, pamphlets, circulars, flyers,
9 brochures, letterheads or other printed matter and statements or infor-
10 mation conveyed to five hundred or more members of a general public
11 audience by computer or other electronic devices which: (i) expressly
12 advocates the election or defeat of a clearly identified candidate or
13 the success or defeat of a ballot proposal and (ii) a candidate, the
14 candidate's political committee or its agents, or a political committee
15 formed to promote the success or defeat of a ballot proposal or its
16 agents, did not authorize, request, suggest, foster or cooperate in any
17 such communication.
18 (b) Independent expenditures do not include:
19 (i) a written news story, commentary, or editorial or a news story,
20 commentary, or editorial distributed through the facilities of any
21 broadcasting station, cable or satellite unless such publication or
22 facilities are owned or controlled by any political party, political
23 committee or candidate; or
24 (ii) a communication that constitutes a candidate debate or forum; or
25 (iii) a communication which constitutes an expenditure made by a
26 person or entity required to report such expenditure with a board of
27 elections pursuant to sections 14-102 and 14-104 of this article.
28 (c) For purposes of this section, the term "person" shall mean person,
29 group of persons, corporation, unincorporated business entity, labor
30 organization or business, trade or professional association or organiza-
31 tion.
32 2. Whenever any person makes an independent expenditure that costs
33 more than one thousand dollars in the aggregate, such communication
34 shall clearly state the name of the person who paid for, or otherwise
35 published or distributed, the communication and state, with respect to
36 communications regarding candidates, that the communication is not
37 authorized by any candidate, any candidate's political committee or any
38 of its agents.
39 3. (a) Any person which makes independent expenditures that cost more
40 than one thousand dollars in the aggregate shall report such independent
41 expenditures to the state board of elections on statements as provided
42 for in section 14-108 of this article.
43 (b) Any independent expenditure that costs more than one thousand
44 dollars and is made after the close of the period to be covered in the
45 last statement filed before any primary, general or special election,
46 but before such election, shall be reported within twenty-four hours in
47 the same manner as provided for in subdivision two of section 14-108 of
48 this article.
49 4. Each such statement shall include:
50 (a) the name and address of the person making the statement;
51 (b) the name and address of the person making the independent expendi-
52 ture;
53 (c) the name and address of any person or entity providing a gift,
54 loan, advance or deposit of one hundred dollars or more for the inde-
55 pendent expenditure, or the provision of services for the same, and the
56 date it was given; provided, however, the name and address of a member
S. 8405 10 A. 11588
1 of a labor organization is not required for a gift, loan, advance or
2 deposit of one hundred dollars or more to a labor organization; and
3 provided further that the name and address of an employee of a corpo-
4 ration, unincorporated business entity, trade or professional associ-
5 ation or organization is not required for a gift, loan, advance or
6 deposit of one hundred dollars or more to such corporation, unincorpo-
7 rated business entity or business, trade or professional association or
8 organization respectively;
9 (d) the dollar amount paid for each independent expenditure, the name
10 and address of the person or entity receiving the payment, the date the
11 payment was made and a description of the independent expenditure; and
12 (e) the election to which the independent expenditure pertains and the
13 name of the clearly identified candidate or the ballot proposal refer-
14 enced.
15 5. A copy of all materials that pertain to the independent expendi-
16 ture, including but not limited to broadcast, cable or satellite sched-
17 ule and scripts, advertisements, pamphlets, circulars, flyers,
18 brochures, letterheads and other printed matter and statements or infor-
19 mation conveyed to five hundred or more members of a general public
20 audience by computer or other electronic devices shall be filed with the
21 state board of elections with all the statements required by section
22 14-108 of this article.
23 6. Written evidence of the indebtedness related to a loan that is made
24 for an independent expenditure shall be provided to the state board of
25 elections.
26 7. Every statement required to be filed pursuant to this section shall
27 be filed electronically to the state board of elections.
28 8. The state board of elections shall promulgate regulations with
29 respect to the statements required to be filed by this section and shall
30 provide forms suitable for such statements.
31 § 11. Section 14-116 of the election law is amended by adding a new
32 subdivision 3 to read as follows:
33 3. (a) Definitions. When used in this subdivision:
34 (1) The term "political issue communication" means any communication
35 made to a general public audience and intended to encourage the public
36 to contact a government official, candidate for public office or party
37 position or a political party regarding pending legislation, public
38 policy or a government rule or regulation.
39 (2) The term "business entity" means any entity that is created by the
40 filing of a certificate of incorporation, a corporation organized under
41 or subject to the banking law or an entity organized under or subject to
42 the limited liability company law.
43 (b) Notwithstanding any other limits on contributions, before a busi-
44 ness entity or any of its subsidiaries may make a contribution, inde-
45 pendent expenditure or expenditure for a political issue communication,
46 the business entity shall, at least annually, obtain the prior authori-
47 zation, by vote of a majority of the shares cast on such resolution, to
48 make contributions, independent expenditures and expenditures for poli-
49 tical issue communications up to a stated aggregate annual amount.
50 (c) Any business entity, either by itself or its subsidiaries, making
51 a contribution, independent expenditure or expenditure for a political
52 issue communication shall at least annually disclose to its shareholders
53 or members and file with the secretary of state an accounting of the
54 contributions, independent expenditures and expenditures for a political
55 issue communication, made by such business entity including:
S. 8405 11 A. 11588
1 (1) the date of the contribution, independent expenditure or expendi-
2 ture for a political issue communication;
3 (2) the amount of the contribution, independent expenditure or expend-
4 iture for a political issue communication;
5 (3) the identity of the recipient of the contribution, or if an inde-
6 pendent expenditure or expenditure for a political issue communication,
7 the identity of the candidate, ballot proposal, political party, pending
8 legislation, public policy or a government rule or regulation supported
9 or opposed; and
10 (4) the business or corporate rationale for each such contribution,
11 independent expenditure or expenditure for a political issue communi-
12 cation.
13 (d) The secretary of state shall post each business entity's annual
14 disclosure on the website maintained by the secretary of state.
15 (e) The attorney general may commence an action or special proceeding
16 to enforce the provisions of this subdivision.
17 § 12. Section 14-126 of the election law, as amended by chapter 8 of
18 the laws of 1978, subdivision 1 as amended by chapter 128 of the laws of
19 1994 and subdivisions 2, 3 and 4 as redesignated by chapter 9 of the
20 laws of 1978, is amended to read as follows:
21 § 14-126. Violations; penalties. 1. Any person who fails to file a
22 statement required to be filed by this article shall be subject to a
23 civil penalty, not in excess of [five hundred] one thousand dollars, to
24 be recoverable in a special proceeding or civil action to be brought by
25 the state board of elections [or other board of elections] enforcement
26 counsel pursuant to section 16-114 of this chapter. Any person who,
27 three or more times within a given election cycle for such term of
28 office, fails to file a statement or statements required to be filed by
29 this article, shall be subject to a civil penalty, not in excess of ten
30 thousand dollars, to be recoverable as provided for in this subdivision.
31 2. Any person, political party or committee who falsely identifies any
32 political communication as prohibited by subdivision two of section
33 14-106 of this article shall be subject to a civil penalty equal to one
34 thousand dollars or the cost of the communication, whichever is greater,
35 in a special proceeding or civil action brought by the state board of
36 elections pursuant to section 16-120 of this chapter.
37 3. Any person who falsely identifies or fails to identify any inde-
38 pendent expenditure as required by subdivision two of section 14-107 of
39 this article shall be subject to a civil penalty equal to one thousand
40 dollars or the cost of the communication, whichever is greater, in a
41 special proceeding or civil action brought by the state board of
42 elections pursuant to section 16-120 of this chapter. For purposes of
43 this subdivision, the term "person" shall mean a person, group of
44 persons, corporation, unincorporated business entity, labor organization
45 or business, trade or professional association or organization.
46 4. Any person who, acting as or on behalf of a candidate or political
47 committee, under circumstances evincing an intent to violate such law,
48 unlawfully accepts a contribution in excess of a contribution limitation
49 established in this article, shall be required to refund such excess
50 amount and shall be subject to a civil penalty equal to two times the
51 excess amount plus a fine of up to ten thousand dollars, to be recovera-
52 ble in a special proceeding or civil action to be brought by the state
53 board of elections enforcement counsel pursuant to section 16-122 of
54 this chapter.
55 5. Any person who knowingly and willfully fails to file a statement
56 required to be filed by this article within ten days after the date
S. 8405 12 A. 11588
1 provided for filing such statement or any person who knowingly and will-
2 fully violates any other provision of this article shall be guilty of a
3 misdemeanor.
4 [3.] 6. Any person who knowingly and willfully contributes, accepts or
5 aids or participates in the acceptance of a contribution in an amount
6 exceeding an applicable maximum specified in this article shall be guil-
7 ty of a misdemeanor.
8 [4.] 7. Any person who shall, acting on behalf of a candidate or poli-
9 tical committee, knowingly and willfully solicit, organize or coordinate
10 the formation of activities of one or more unauthorized committees, make
11 expenditures in connection with the nomination for election or election
12 of any candidate, or solicit any person to make any such expenditures,
13 for the purpose of evading the contribution limitations of this article,
14 shall be guilty of a class E felony.
15 § 13. Section 16-100 of the election law is amended to read as
16 follows:
17 § 16-100. Jurisdiction; supreme court, county court. 1. The supreme
18 court is vested with jurisdiction to summarily determine any question of
19 law or fact arising as to any subject set forth in this article, which
20 shall be construed liberally.
21 2. The county court is vested with jurisdiction to summarily determine
22 any question of law or fact except proceedings as to a nomination or
23 election at a primary election or a nomination at a judicial convention,
24 proceedings as to the casting and canvass of ballots [and], proceedings
25 for examination or preservation of ballots and proceedings to enforce
26 the provisions of article fourteen of this chapter.
27 § 14. The election law is amended by adding a new section 16-120 to
28 read as follows:
29 § 16-120. Proceedings as to political communications and independent
30 expenditures. The supreme court or a justice thereof, in a proceeding
31 instituted by the state board of elections enforcement counsel, may
32 impose a civil penalty, as provided in subdivisions two and three of
33 section 14-126 of this chapter, upon proof that a violation of one or
34 more of such subdivisions has occurred.
35 § 15. The election law is amended by adding a new section 16-122 to
36 read as follows:
37 § 16-122. Enforcement proceedings. The supreme court or a justice
38 thereof, in a proceeding instituted by the state board of elections
39 enforcement counsel, may impose a civil penalty, as provided for in
40 subdivision four of section 14-126 of this chapter, upon proof that a
41 violation of such subdivision has occurred. The court may consider,
42 among other factors, the severity of the violation or violations, wheth-
43 er the subject of the violation made a good faith effort to correct the
44 violation and whether the subject of the violation has a history of
45 similar violations. All such determinations shall be made on a fair and
46 equitable basis without regard to the status of the candidate or poli-
47 tical committee.
48 § 16. Separability clause. If any clause, sentence, paragraph, section
49 or part of this act shall be adjudged by any court of competent juris-
50 diction to be invalid, such judgment shall not affect, impair or invali-
51 date the remainder thereof, but shall be confined in its operation to
52 the clause, sentence, paragraph, section or part thereof directly
53 involved in the controversy in which such judgment shall have been
54 rendered.
55 § 17. This act shall take effect immediately.
