PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 02-04-049.
Title of Rule: Title 390 WAC, rules relating to independent expenditures, sample ballots and slate cards, reports filed by nonreporting committees, exempt activities and the definition of caucus of the state legislature.
Purpose: To clarify and implement changes to chapter 42.17 RCW and to simplify and streamline the campaign reporting process for candidates and political committees.
Statutory Authority for Adoption: RCW 42.17.370(1).
Statute Being Implemented: RCW 42.17.103 and [42.17].370(1).
Summary: The proposed rule changes would repeal one rule, amend the form and reporting requirements for nonreporting committees, implement RCW 42.17.103, clarify definitions of exempt activities and sample ballots and slate cards, and simplify reporting of independent expenditure political advertising.
Reasons Supporting Proposal: The proposed new rule and rule amendments conform to statutory changes under RCW 42.17.103, clarify requirements of nonreporting committees, provide guidance to political party committees on the use of exempt funds, and define "top five contributors" for the purpose of political advertising by independent expenditure committees.
Name of Agency Personnel Responsible for Drafting and Implementation: Doug Ellis, Public Disclosure Commission, 711 Capitol Way, Room 206, Olympia, (360) 664-2735; and Enforcement: Phil Stutzman, Public Disclosure Commission, 711 Capitol Way, Room 206, Olympia, (360) 664-8853.
Name of Proponent: Public Disclosure Commission, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The proposed rule changes would conform with statutory changes under RCW 42.17.103 which requires the reporting of independent expenditures within twenty-four hours of first being published or presented to the public during the twenty-one days before an election and would also specify the requirements and the kinds of committees that file PDC form C-5. The rule amendments define "top five contributors" under RCW 42.17.510(2) and allow political committees to identify the top five contributors giving to the committee to underwrite political advertising for a specific independent expenditure. The definition of caucus of the state legislature is repealed.
The proposed rule changes also reference the Washington state supreme court's decision regarding issue advocacy and the use of exempt funds, allows generic get-out-the-vote activity, regardless of the number of candidates benefitted, to be funded with the exempt contributions, and clarifies that at least three candidates must be listed on sample ballots and slate cards and that the distribution of sample ballots and slate cards must be within a geographical area where voters are eligible to vote for at least three candidates listed.
The proposed rule changes provide guidance and clarification to candidates and political committees on current statutory requirements.
Proposal Changes the Following Existing Rules: The proposed changes clarify, simplify and streamline the campaign reporting process for candidates and political committees.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The implementation of these rules does not impact small businesses.
RCW 34.05.328 does not apply to this rule adoption. The Public Disclosure Commission (PDC) is not an agency listed in subsection (5)(a)(i) of section 201. Further, the PDC does not voluntarily make section 201 applicable to this rule adoption pursuant to subsection (5)(a)(i)[(ii)] of section 201, and to date the Joint Administrative Rules Review Committee has not made section 201 applicable to this rule adoption.
Hearing Location: Commission Hearing Room, Evergreen Plaza Building, 711 Capitol Way, Room 206, Olympia, WA, on May 21, 2002, at 9:00 a.m.
Assistance for Persons with Disabilities: Contact Ruthann Bryant by phone (360) 753-1111.
Submit Written Comments to: Doug Ellis, Public Disclosure Commission, P.O. Box 40908, Olympia, WA 98504-0908, fax (360) 753-1112, dellis@pdc.wa.gov, by May 17, 2002.
Date of Intended Adoption: May 21, 2002.
April 16, 2002
Susan Harris
Assistant Director
OTS-5580.1
NEW SECTION
WAC 390-18-025
Political advertising -- Identification of
"top five contributors."
(1) For purposes of RCW 42.17.510(2),
"top five contributors" means the five persons, as defined in RCW 42.17.020, giving the largest aggregate contributions during the
twelve-month period preceding the date on which the political
advertisement is published or otherwise presented to the public.
If more than five contributors give an amount equal to the
largest aggregate contribution received during the relevant
twelve-month period, the political committee sponsoring the
advertisement shall select five of these contributors to identify
as the top five contributors.
(2) The "top five contributors" identification requirement applies to all political committees that make independent expenditures, including continuing political committees, required to register and report under chapter 42.17 RCW other than a bona fide political party committee.
(3) If a political committee keeps records necessary to track contributions according to the use intended by contributors, and the committee subsequently makes independent expenditures supporting or opposing a candidate or slate of candidates, that committee may identify the top five contributors giving for that purpose, as opposed to identifying the overall top five contributors to the committee as is otherwise required by RCW 42.17.510(2) and this section.
However, a contributor's contributions earmarked for independent expenditures supporting or opposing a specific candidate or slate of candidates shall not be used to support or oppose a different candidate or slate of candidates without the contributor being identified as one of the top five contributors for the actual expenditure if that contributor is one of the top five contributors for that expenditure.
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OTS-5620.1
AMENDATORY SECTION(Amending WSR 02-03-018, filed 1/4/02,
effective 2/4/02)
WAC 390-16-050
Forms for contributions and expenditures of
out-of-state or federal political committees ((not domiciled in
Washington state)).
The official form for the report of
contributions and expenditures of political committees (a)
registered with the Federal Election Commission, (b) not
domiciled in Washington state, or (c) otherwise not required to
report under RCW 42.17.040, 42.17.065, or 42.17.080 is designated
"C-5," revised ((1/02)) 6/02. Copies of this form are available
at the Commission Office, Room 206, Evergreen Plaza Building,
Olympia, Washington 98504-0908. Any paper attachments shall be
on 8 1/2" x 11" white paper.
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[Statutory Authority: RCW 42.17.370(1). 02-03-018, § 390-16-050, filed 1/4/02, effective 2/4/02. Statutory Authority: RCW 42.17.390. 94-05-011, § 390-16-050, filed 2/3/94 effective 3/6/94. Statutory Authority: RCW 42.17.370. 89-20-068, § 390-16-050, filed 10/4/89, effective 11/4/89. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), § 390-16-050, filed 2/5/86; 82-11-026 (Order 82-03), § 390-16-050, filed 5/10/82; Order 77, § 390-16-050, filed 6/2/76; Order 62, § 390-16-050, filed 8/26/75; Order 6, § 390-16-050, filed 3/23/73.]
OTS-5621.1
AMENDATORY SECTION(Amending WSR 96-05-001, filed 2/7/96,
effective 3/9/96)
WAC 390-16-055
((Filing reports for nonreporting))
Forfeiture of contributions received from out-of-state or federal
political committees.
(((1))) Each candidate or political
committee receiving funds from a nonreporting committee
(out-of-state or federal political committee) as described in RCW 42.17.090 (1)(l), shall determine whether such committee has
complied with that subsection. If the nonreporting committee has
not filed the required report under WAC 390-16-050, the funds
shall not be forfeited or reportable as having been received if
they are returned to the nonreporting committee within ((three))
five business days after receipt. ((Any retention or other
action taken with such funds, if there is not a complete and
timely report on file, shall result in the forfeiture of such
funds to the state of Washington and shall be deemed a violation
of chapter 42.17 RCW.
(2) Any subsequent report by a nonreporting committee of its contributions which is required by RCW 42.17.090 (1)(l) during the same calendar year may update its initial report by letter showing, in addition to its name and address, only reportable information which is new or changed since its last report.)) If an out-of-state or federal political committee fails to file a complete and timely report, the recipient shall forfeit the contribution to the state of Washington.
[Statutory Authority: RCW 42.17.370(1). 96-05-001, § 390-16-055, filed 2/7/96, effective 3/9/96. Statutory Authority: RCW 42.17.370. 89-20-068, § 390-16-055, filed 10/4/89, effective 11/4/89. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), § 390-16-055, filed 2/5/86; 82-14-016 (Order 82-04), § 390-16-055, filed 6/28/82; 79-09-041 (Order 79-04), § 390-16-055, filed 8/17/79; Order 62, § 390-16-055, filed 8/26/75; Order 29, § 390-16-055, filed 5/27/74.]
OTS-5622.1
AMENDATORY SECTION(Amending WSR 02-03-018, filed 1/4/02,
effective 2/4/02)
WAC 390-16-060
Forms for report of independent
expenditures.
(1) The official form for reports of independent
expenditures as required by RCW 42.17.100 and 42.17.103 is
designated "C-6," revised ((1/02)) 6/02. Copies of this form are
available at the Commission Office, Room 206, Evergreen Plaza
Building, Olympia, Washington 98504. Any paper attachments shall
be on 8 1/2" x 11" white paper.
(2) The C-6 report may be filed electronically consistent with WAC 390-19-040 by using an electronic filing alternative provided or approved by the commission.
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[Statutory Authority: RCW 42.17.370(1). 02-03-018, § 390-16-060, filed 1/4/02, effective 2/4/02. Statutory Authority: RCW 42.17.370. 89-20-068, § 390-16-060, filed 10/4/89, effective 11/4/89. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), § 390-16-060, filed 2/5/86; 82-11-026 (Order 82-03), § 390-16-060, filed 5/10/82; Order 77, § 390-16-060, filed 6/2/76; Order 62, § 390-16-060, filed 8/26/75; Order 6, § 390-16-060, filed 3/23/73.]
OTS-5623.1
AMENDATORY SECTION(Amending WSR 99-12-066, filed 5/27/99,
effective 6/27/99)
WAC 390-17-030
Sample ballots and slate cards.
(1) Intent.
The commission finds that, under certain conditions, expenditures
for slate cards and other candidate listings fall within the
scope of RCW 42.17.640 (14)(a) and are, therefore, exempt from
contribution limits and eligible for payment with a bona fide
political party's exempt funds. Slate cards and other candidate
listings remain reportable under chapter 42.17 RCW and subject to
the political advertising provisions of the law.
The purpose of this exemption from the contribution limits is to allow political parties and other sponsors to tell the general public which candidates they support. The exemption is not intended as a device to circumvent the contribution limits and full reporting requirements by undertaking any degree of significant campaigning on behalf of candidates.
(2) For purposes of RCW 42.17.640 (14)(a), "sample ballots" means slate cards, or other candidate listings, whether written or oral, that satisfy the qualifying criteria specified in subsection (10) of this section.
(3) Sample ballots constitute political advertising for a slate or list of candidates and must be properly identified and otherwise in compliance with the political advertising provisions, RCW 42.17.505 through 42.17.550.
(4)(a) A bona fide political party may use contributions it
receives pursuant to RCW 42.17.640(14) to ((design, print))
produce and distribute sample ballots.
(b) Expenditures for sample ballots do not count against a bona fide political party's contribution limit to the candidates listed on the sample ballot. Further, when reporting sample ballot expenditures, a bona fide political party is not required to attribute a portion of the expenditure to each of the candidates listed on the sample ballot, but the names of the candidates must be reported along with the other information required by chapter 42.17 RCW and chapter 390-17 WAC.
(5) Any person, as defined by RCW 42.17.020, who makes an expenditure for sample ballots has made an expenditure that does not count against that person's contribution limit to the candidates listed.
(6) An in-state political committee, when disclosing expenditures for sample ballots as part of its C-4 report, is not required to attribute a portion of the expenditure to the candidates listed on the sample ballot, but the names of the candidates and their respective party affiliations must be reported along with other information required by chapter 42.17 RCW and chapter 390-17 WAC.
(7) An out-of-state or federal committee, when disclosing expenditures for sample ballots on a C-5 report, is not required to allocate a portion of the expenditure to the candidates listed on the sample ballot, but must report that an expenditure for sample ballots was made, the name and address of the person to whom the expenditure was made, the full amount of the expenditure, and the name, office sought and party affiliation of each candidate listed on the sample ballot. The report is due within ten days of the date the sample ballot is received by recipients.
(8) If a lobbyist or lobbyist employer makes expenditures for sample ballots, those expenditures are required to be reported in detail on the lobbyist's monthly L-2 report. Itemization of these expenditures must include the names and respective party affiliations of the candidates listed on the sample ballot, but no portion of the expenditure need be allocated to individual candidates listed on the sample ballot.
(9) The candidates listed on a sample ballot are not required to report any portion of the expenditure as an in-kind contribution to their campaigns.
(10) Qualifying criteria for sample ballots, slate cards and other candidate listings. In order not to count against a person's contribution limit to the candidates listed on a sample ballot and, in the case of a bona fide political party, in order to be eligible for payment with contributions received pursuant to RCW 42.17.640(14), a sample ballot must satisfy all of the criteria in (a) through (d) of this subsection.
(a) The sample ballot must list the names of at least three
candidates for election to public office in Washington state((.
That is, identify)) and be distributed in a geographical area
where voters are eligible to vote for at least three candidates
listed. The candidate listing may include any combination of
three or more candidates, whether the candidates are seeking
federal, state or local office in Washington.
(b) The sample ballot must not be distributed through public political advertising; for example, through broadcast media, newspapers, magazines, billboards or the like. The sample ballot may be distributed through direct mail, telephone, electronic mail, Web sites, electronic bulletin boards, electronic billboards or personal delivery by volunteers.
(c) The content of a sample ballot is limited to:
• The identification of each candidate (pictures may be used);
• The office or position currently held;
• The office sought;
• Party affiliation; and
• Information about voting hours and locations.
Therefore, the sample ballot must exclude any additional biographical data on candidates and their positions on issues as well as statements about the sponsor's philosophy, goals or accomplishments. The list must also exclude any statements, check marks or other indications showing support of or opposition to ballot propositions.
(d) The sample ballot is a stand-alone political advertisement. It must not be a portion of a more comprehensive message or combined in the same mailing or packet with any other information, including get-out-the-vote material, candidate brochures, or statements about the sponsor's philosophy, goals or accomplishments. On Web sites, electronic bulletin boards or electronic billboards, the sample ballot must be a separate document.
[Statutory Authority: RCW 42.17.370(1). 99-12-066, § 390-17-030, filed 5/27/99, effective 6/27/99; 96-05-001, § 390-17-030, filed 2/7/96, effective 3/9/96. Statutory Authority: RCW 42.17.370. 93-16-064, § 390-17-030, filed 7/30/93, effective 8/30/93.]
OTS-5624.1
AMENDATORY SECTION(Amending WSR 02-03-018, filed 1/4/02,
effective 2/4/02)
WAC 390-17-060
Exempt activities -- Definitions, reporting.
(1)(a) "Exempt contributions" are contributions made to a
political committee which are earmarked for exempt activities as
described in RCW 42.17.640 (14)(a) and (b). Such contributions
are required to be reported under RCW 42.17.090, are subject to
the restrictions in RCW 42.17.105(8), but are not subject to the
contribution limits in RCW 42.17.640. Any written solicitation
for exempt contributions must be so designated. Suggested
designations are "not for individual candidates" or "for exempt
activities."
(b) Contributions made to a caucus ((of the state
legislature)) political committee, to a candidate or candidate's
authorized committee which are earmarked for voter registration,
absentee ballot information, get-out-the-vote campaigns, sample
ballots are presumed to be for the purpose of promoting
individual candidates and are subject to the contribution limits
in RCW 42.17.640.
(c) Contributions made to a caucus ((of the state
legislature)) political committee, to a candidate or candidate's
authorized committee which are earmarked for internal
organization expenditures or fundraising are presumed to be with
direct association with individual candidates and are subject to
the contribution limits in RCW 42.17.640.
(2) "Exempt contributions account" is the separate bank account into which only exempt contributions are deposited and out of which only expenditures for exempt activities shall be made.
(3) "Exempt activities" are those activities ((described))
referenced in RCW 42.17.640(14)((, expenditures for which are
exempt from the contribution limits of RCW 42.17.640. However,
only those activities described in RCW 42.17.640(14) as further
defined in subsections (4) and (5) of this rule)) as further
clarified by subsections (4), (5), (6), and (7) of this section
and by the Washington state supreme court's decision regarding
issue advocacy in Washington State Republican Party v. Washington
State Public Disclosure Commission et al., 141 Wn.2d 245, 4 P.3d
808 (2000). Only exempt activities are eligible for payment with
exempt contributions.
(4)(a) ((If activities described in RCW 42.17.640 (14)(a)
promote clearly identified candidate(s), the activities are a
contribution to those candidate(s). Expenditures for these
activities may not be made with exempt contributions. If more
than one clearly identified candidate is promoted, the amount
expended shall be allocated proportionally among those
candidates. The amount expended for such activities shall be
reported as a contribution to that candidate(s). Candidate(s)
shall be notified in writing of the contribution within five
business days of the expenditure.)) Except as permitted by WAC 390-17-030, Sample ballots and slate cards, activities referenced
in RCW 42.17.640 (14)(a) that promote or constitute political
advertising for one or more clearly identified candidates do not
qualify as exempt activities.
(b) A candidate is deemed to be clearly identified if((:))
the name of the candidate is used((;)), a photograph or
((drawing)) likeness of the candidate appears((;)), or the
identity of the candidate is apparent by unambiguous reference.
(((c) An activity that benefits or opposes fewer than three
individual candidates shall be presumed to be for the purpose of
promoting individual candidates whether or not they are clearly
identified. Such an activity does not constitute a contribution
to any candidate who is not clearly identified, but the activity
shall not be paid with exempt funds.))
(5) Activities referenced in RCW 42.17.640 (14)(a) that do not promote, or constitute political advertising for, one or more clearly identified candidates qualify as exempt activities. For example, get-out-the-vote telephone bank activity that only encourages persons called to "vote republican" or "vote democratic" in the upcoming election may be paid for with exempt contributions regardless of the number of candidates who are benefited by this message.
(6)(a) "Internal organization expenditures" ((described))
referenced in RCW 42.17.640 (14)(b) are expenditures for
organization purposes, including legal and accounting services,
rental and purchase of equipment and office space, utilities and
telephones, postage and printing of newsletters for the
organization's members or contributors or staff when engaged in
organizational activities such as those previously listed, all
without direct association with individual candidates.
(b) "Fundraising expenditures" ((described)) referenced in
RCW 42.17.640 (14)(b) are expenditures for fundraising purposes,
including((:)) facilities for fundraisers, consumables furnished
at the event and the cost of holding social events and party
conventions, all without direct association with individual
candidates.
(c) If expenditures made pursuant to subsections (a) and (b) above are made in direct association with individual candidates, they shall not be paid with exempt contributions.
(((6))) (7) For purposes of RCW 42.17.640 (14)(a) and this
section, activities that oppose one or more clearly identified
candidates are presumed to promote the opponent(s) of the
candidate(s) opposed.
[Statutory Authority: RCW 42.17.370(1). 02-03-018, § 390-17-060, filed 1/4/02, effective 2/4/02; 96-05-001, § 390-17-060, filed 2/7/96, effective 3/9/96. Statutory Authority: RCW 42.17.370. 93-24-003, § 390-17-060, filed 11/18/93, effective 12/19/93.]
OTS-5581.1
REPEALER
The following section of the Washington Administrative Code is repealed:
| WAC 390-17-011 | Caucus of the state legislature--Definition. |