WSR 97-06-086
PROPOSED RULES
PUBLIC DISCLOSURE COMMISSION
[Filed March 3, 1997, 1:19 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 96-23-052; and proposal is exempt under RCW 34.05.310(4).
Title of Rule: Amend WAC 390-16-313 Independent expenditure--Definition and application.
Purpose: To delete the provision that precludes political parties and caucus political committees from making independent expenditures. To further clarify when an expenditure will be considered an independent expenditure.
Statutory Authority for Adoption: RCW 42.17.370(1).
Statute Being Implemented: RCW 42.17.020(24), [42.17].180, [42.17].510, [42.17].550, [42.17].640.
Summary: WAC 390-16-313 would be amended to delete the provisions precluding political parties and caucus political committees from making independent expenditures.
Reasons Supporting Proposal: The United States Supreme Court ruled earlier this year that political parties cannot constitutionally be precluded from making independent expenditures. Therefore, subsection (2) of WAC 390-16-313 should be repealed since it does, in effect, preclude political parties from making independent expenditures, and constitutionally cannot be applied. Similarly, subsection (3) should also be repealed since the Supreme Court has thrown doubt upon the ability of the states to impose any absolute restriction on noncandidates making independent expenditures.
Name of Agency Personnel Responsible for Drafting and Implementation: Melissa Warheit and Vicki Rippie, 711 Capitol Way, Room 403, Olympia, WA 98504, (360) 753-1111; and Enforcement: Melissa Warheit and Susan Harris, 711 Capitol Way, Room 403, Olympia, WA 98504, (360) 753-1111.
Name of Proponent: Public Disclosure Commission, governmental.
Rule is necessary because of federal court decision, Colorado Republican Federal Campaign Committee v. FEC, 64 U.S.L.W. 4663 (6/26/96).
Explanation of Rule, its Purpose, and Anticipated Effects: Initiative 134 imposes limits on contributions to candidates for state-wide and legislative office, including contributions made by political parties and caucus political committees to those candidates. The law distinguishes between contributions given to candidates and independent expenditures. Independent expenditures are made to support or oppose a candidate, but are not made directly to a candidate's campaign. While the law may limit contributions, independent expenditures may not constitutionally be limited by law. An expenditure made in cooperation or consultation with a candidate is considered a contribution and not an independent expenditure.
In order to fully implement contribution limits, the Public Disclosure Commission promulgated rules further explaining what expenditures are considered to be contributions and what are considered to be independent expenditures not subject to limit.
WAC 390-16-313 describes application of the definition of independent expenditure. Subsection (2) of WAC 390-16-313 provides that expenditures by political parties supporting or opposing candidates are considered to be contributions, the idea being that political parties are too closely aligned with their candidates to make independent expenditures. Similarly, subsection (3) provides that expenditures supporting or opposing legislative candidates by caucus political committees are contributions.
The United States Supreme Court ruled last year that political parties cannot constitutionally be precluded from making independent expenditures. Therefore, subsection (2) of WAC 390-16-313 should be repealed since it does, in effect, preclude parties from making independent expenditures. Similarly, subsection (3) should also be repealed since the Supreme Court has thrown doubt upon the ability of the state to impose any absolute restriction on noncandidates making independent expenditures.
Proposal Changes the Following Existing Rules: The amendment to WAC 390-16-313 deletes subsections (2) and (3) providing that expenditures by political parties and caucus political committees supporting or opposing candidates are contributions subject to the applicable limits. The amendment also further clarifies the definition of independent expenditures.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposal would affect PACs, political parties, and caucus political committees. It would not affect businesses in an industry.
Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Public Disclosure Commission is not an agency listed in subsection (5)(a)(i) of section 201. Further, the Public Disclosure Commission does not voluntarily make section 201 applicable to this rule adoption pursuant to subsection (5)(a)(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: Evergreen Plaza Building, 711 Capitol Way, 2nd Floor Conference Room, Olympia, WA 98504, on April 22, 1997, at 9:00 a.m.
Submit Written Comments to: Melissa Warheit, Executive Director, or Vicki Rippie, Assistant Director, Public Disclosure Commission, P.O. Box 40908, Olympia, WA 98504-0908, FAX (360) 753-1112, by April 14, 1997.
Date of Intended Adoption: April 22, 1997.
March 5, 1997
Melissa Warheit
Executive Director
AMENDATORY SECTION (Amending WSR 96-09-016 filed 4/8/96)
WAC 390-16-313 Independent expenditure--Definition and application. (1) "Independent expenditure," as that term is used in chapter 42.17 RCW, except RCW 42.17.100, means an "expenditure" as defined in RCW 42.17.020 that has each of the following elements:
a) It is made in support of or in opposition to a candidate for public office, except federal elective office or precinct committee officer, by a person who is not
(i) a candidate for that office,
(ii) an authorized committee of that candidate for that office,
(iii) a person who has received the candidate's encouragement or approval to make the expenditure, if the expenditure pays in whole or in part for any political advertising supporting that candidate or promoting the defeat of any other candidate or candidates for that office, or
(iv) a person with whom the candidate has collaborated for the purpose of making the expenditure, if the expenditure pays in whole or in part for any political advertising supporting that candidate or promoting the defeat of any other candidate or candidates for that office;
(b) The expenditure pays in whole or in part for any political
advertising that either specifically names the candidate supported or
opposed, or clearly and beyond any doubt identifies the candidate without
using the candidate's name; ((and))
(c) The expenditure, alone or in conjunction with another
expenditure or other expenditures of the same person in support of or
opposition to that candidate, has a value equal to or greater than the
((amount specified)) threshold for an independent expenditure((s)) found
in WAC 390-05-400. A series of expenditures, each of which is under the
((applicable amount)) threshold for an independent expenditure found in
WAC 390-05-400, constitutes one independent expenditure if their
cumulative value is equal to or greater than the ((amount specified))
threshold for an independent expenditure found in WAC 390-05-400; and
(d) The expenditure is not a contribution as defined in RCW 42.17.020 and clarified by WAC 390-05-210.
(2) ((Political Parties. An expenditure in support of a candidate
or in opposition to one or more of that candidate's opponents is a
contribution to that candidate and is subject to the applicable limits
found in RCW 42.17.105(8) and RCW 42.17.640 if it is made by, through or
in cooperation, consultation, concert or collaboration with one or more
of the following persons or their agents: a bona fide political party,
a national committee or federal committee of a political party
organization, or a political committee financed, controlled or operated
by one or more officers, employees or agents of a bona fide political
party.
(3) Caucus and Legislator Operated Committees. An expenditure in
support of a state legislative office candidate or in opposition to one
or more of that candidate's opponents is a contribution to that candidate
and is subject to the applicable limits found in RCW 42.17.105(8) and RCW
42.17.640 if it is made by, through or in cooperation, consultation,
concert or collaboration with one or more of the following persons or
their agent: a caucus political committee or another political committee
financed, controlled or operated by one or more state legislators, one
or more employees or agents of a caucus political committee, or a
combination thereof.
(4))) Exempt Activities. The following activities are not
considered independent expenditures for purposes of RCW 42.17.100, .180,
.510 or .550:
(a) Ordinary home hospitality;
(b) A news item, feature, commentary, or editorial in a regularly scheduled news medium that is of primary interest to the general public, that is in a news medium controlled by a person whose business is that news medium, and that is not controlled by a candidate or a political committee;
(c) An internal political communication primarily limited to
(i) the members of or contributors to a political party organization or political committee,
(ii) the officers, management staff or stockholders of a corporation or similar enterprise, or
(iii) the members of a labor organization or other membership organization;
(d) Messages in the form of reader boards, banners, or yard or window signs displayed on a person's own property or the property occupied by a person. However, a facility used for such political advertising for which a rental charge is normally made shall be reported as an in-kind contribution at its fair market value and counts towards any applicable contribution limit of the person providing the facility; or
(e) The rendering of personal services of the sort commonly
performed by volunteer campaign workers or incidental expenses personally
incurred by volunteer campaign workers not in excess of fifty dollars
personally paid by the worker.
[Statutory Authority: RCW 42.17.370(1). 96-09-016, 390-16-313, filed
4/8/96, effective 5/9/96.]
Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.