Effective Date of Rule: Thirty-one days after filing.
Purpose: To describe when a communication to a "member" as that term is used in chapter 42.17 RCW, the public disclosure commission statutes, including RCW 42.17.020 and 42.17.100, is an internal political communication and not a contribution. The rule specifically addresses (and excludes) entities that describe their customers as "members" but their relationship is more akin to that of seller-buyer and also provides an additional factor to determine membership.
Citation of Existing Rules Affected by this Order: Amending WAC 390-05-515.
Statutory Authority for Adoption: RCW 42.17.370.
Adopted under notice filed as WSR 09-01-042 on December 10, 2008.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.
Date Adopted: January 22, 2009.
AMENDATORY SECTION(Amending WSR 06-11-132, filed 5/23/06, effective 6/23/06)
WAC 390-05-515 Member. In determining whether a communication is to a "member" as that term is used in RCW 42.17.020 and 42.17.100, and for the purposes of RCW 42.17.105(8) ((
and)), 42.17.640 and 42.17.645:
(1) The commission will examine whether the organization is a legitimate membership organization with common interest goals and objectives, taking into account such factors as the organization's permanence, structure and whether it has formal organizing documents, membership criteria and services it provides its members.
(2) With respect to the status of members of an organization, the commission will examine whether a valid, active relationship exists between the organization and its members or classes of members for purposes other than influencing the outcome of an election, taking into account such factors as whether the members affirmatively accept membership and the rights and obligations conferred on members by the organization including whether members have the right to vote for:
(a) Election of directors or officers; or
(b) Changes to the articles or bylaws; or
(c) The disposition of all or substantially all of the assets of the organization or on a merger or dissolution.
A required payment of a predetermined amount of membership dues is also a factor; however, an organization will not be considered a membership organization if it is primarily a commercial entity or for-profit entity selling products to customers even though it may refer to its customers as "members."
(3) If a membership organization and its members satisfy the criteria regarding "membership associations" and "members" established by the Federal Election Commission (FEC) in 11 C.F.R. Sec. 100.134 (e)-(g), the commission will consider the organization and its members as qualifying for the exemption in RCW 42.17.020 (15)(b)(v) and (21)(g), unless the communication was not sent primarily to members. However, these FEC criteria are not the only indicators of legitimate membership organizations or valid members, a determination that will be made by the commission on a case-by-case basis as necessary.
(4) In determining whether an internal political communication is "primarily" limited to the members of an organization or political committee, the commission will consider whether any distribution to nonmembers is incidental and isolated.
[Statutory Authority: RCW 42.17.370 and 42.17.562. 06-11-132, § 390-05-515, filed 5/23/06, effective 6/23/06.]