WSR 07-04-083

PROPOSED RULES

PUBLIC DISCLOSURE COMMISSION


[ Filed February 5, 2007, 1:58 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-23-164.

Title of Rule and Other Identifying Information: Amending WAC 390-17-400 Time limit to solicit or accept contributions, 390-17-030 Sample ballots and slate cards and 390-18-025 Identification of "top five contributors;" new rules WAC 390-16-320 Candidates in small political subdivisions -- Reporting and 390-05-275 Definition -- Party organization.

Hearing Location(s): Commission Hearing Room, 711 Capitol Way, Room 206, Olympia, WA 98504, on March 22, 2007, at 9:30 a.m.

Date of Intended Adoption: March 22, 2007.

Submit Written Comments to: Doug Ellis, Public Disclosure Commission, P.O. Box 40908, Olympia, WA 98504-0908, e-mail dellis@pdc.wa.gov, fax (360) 753-1112, by March 19, 2007.

Assistance for Persons with Disabilities: Contact Kami Madsen by phone (360) 586-0544.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The rule amendments are designed to conform (1) with 2006 legislative changes impacting RCW 42.17.710; (2) with reporting date changes for out-of-state committees; and (3) with the electioneering communications statutes. The new rules define "party organization" in RCW 42.17.510 and "receives or expects to receive" in RCW 42.17.405.

Reasons Supporting Proposal: To provide guidance and clarification to the general public and persons subject to the disclosure law.

Statutory Authority for Adoption: RCW 42.17.370.

Statute Being Implemented: Chapter 42.17 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The rule amendments and new rules are designed to conform with 2006 legislative changes and provide guidance and clarification to persons subject to the disclosure law.

Name of Proponent: [Public disclosure commission (PDC)], governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Doug Ellis, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-2735; and Enforcement: Phil Stutzman, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-8853.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The implementation of this rule amendment has minimal impact on small businesses.

A cost-benefit analysis is not required under RCW 34.05.328. The 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 the adoption of these rules pursuant to subsection (5)(a)(i) of section 201, and, to date, JARRC has not made section 201 application [applicable] to the adoption of these rules.

February 5, 2007

Vicki Rippie

Executive Director

OTS-9546.1


AMENDATORY SECTION(Amending WSR 98-23-016, filed 11/6/98, effective 12/7/98)

WAC 390-17-400   Time limit to solicit or accept contributions.   The purpose of this rule is to clarify and implement RCW 42.17.710.

(1) "Campaign debt," as used in RCW 42.17.710 and this rule, means any debt incurred by a candidate seeking election to a nonfederal public office, including campaigns for state, county, city, town, school district, special district or other state political subdivision elective office.

(2) "Known candidates" means individuals who are, or who become, candidates for state or local office during a legislative session freeze period.

(3) "Legislative session freeze period" means the period of time in RCW 42.17.710 within which contributions shall not be solicited or accepted by a state official or a person employed by or acting on behalf of a state official.

(a) The freeze period begins at 12:01 a.m. on the thirtieth day before the start of the regular legislative session and ends at 11:59 p.m. on the ((thirtieth day following)) day of adjournment of the regular legislative session.

(b) If a special session is held immediately following the end of the regular legislative session, the freeze period ends on the day the special session adjourns ((or at 11:59 p.m. on the thirtieth day following adjournment of the regular legislative session, whichever is later)).

(c) If a special session is held other than within ((30)) thirty days before ((or after)) a regular legislative session, the freeze period begins at 12:01 a.m. on the first day of the special session and ends at 11:59 p.m. on the final day of the special session.

(4) A successful candidate for state office who does not already hold a state office is not required to comply with RCW 42.17.710 until sworn into office.

(5) A state official must comply with RCW 42.17.710 until he or she no longer holds state office.

(6) "Person employed by or acting on behalf of a state official" includes a caucus political committee or any political committee financed or controlled by a legislative caucus as a whole or by one or more officers of a caucus political committee.

(7) State officials may do the following. During a legislative session freeze period, the activities in which state officials may engage include, but are not limited to:

(a) Soliciting or accepting contributions to assist his or her own campaign for federal office;

(b) Accepting gifts or other items permitted under chapter 42.52 RCW, so long as the gift or other item is not

A contribution to an incumbent state official or known candidate,
A contribution to a public office fund,
Used to pay a nonreimbursed public office related expense, or
Used to retire a campaign debt;
(c) Attending and speaking at a fund raising event held by or on behalf of a bona fide political party, so long as the contributions raised are not earmarked or otherwise designated for any incumbent state official or known candidate;

(d) Transferring their own personal funds, as defined in WAC 390-17-305, or their own surplus funds, as defined in RCW 42.17.020, to their own campaign account, so long as the funds are properly reported;

(e) Soliciting or accepting contributions on behalf of a nonprofit charity; or

(f) Soliciting or accepting contributions on behalf of any political committee, including a caucus political committee, a bona fide political party or a ballot measure committee, so long as the political committee does not spend the contributions for the benefit of incumbent state officials or known candidates.

(8) State officials may not do the following. During a legislative session freeze period, a state official, or a person employed by or acting on behalf of a state official, may not solicit or accept contributions that:

(a) Go to an incumbent state official or known candidate;

(b) Go to a public office fund;

(c) Are used to pay a nonreimbursed public office related expense;

(d) Are used to retire a campaign debt;

(e) Go to a caucus political committee if the committee spends the contributions for the benefit of incumbent state officials or known candidates; or

(f) Go to a bona fide political party or a political committee if the political party or committee spends the contributions for the benefit of incumbent state officials or known candidates.

(9) Caucus political committees. During a legislative session freeze period, a caucus political committee

(a) May solicit or accept contributions from caucus members if the members make the contributions with their own personal funds, as defined in WAC 390-17-305, or with their own surplus funds, as defined in RCW 42.17.020;

(b) May not solicit or accept contributions for any of the purposes specified in subsection (8) of this rule.

(10) Persons acting on behalf of state officials. During a legislative session freeze period, a person employed by or acting on behalf of a state official may not solicit or accept contributions for any of the purposes specified in subsection (8) of this rule.

(11) Bona fide political parties. During a legislative session freeze period, a bona fide political party may not solicit or accept contributions that are

Used for a public office fund,
Used for a state official's nonreimbursed public office related expenses,
Used for retiring a state official's campaign debt, or
Earmarked contributions to specific incumbent state officials or known candidates.
However, a bona fide political party may solicit or accept contributions for its own fund raising purposes.

(12) Segregating session freeze funds. During a legislative session freeze period, if a state official, a caucus political committee, or another person employed by or acting on behalf of a state official solicits or accepts contributions to

A caucus political committee,
A bona fide political party, or
Any political committee that supports or opposes state or local office candidates, the contributions are presumed to violate RCW 42.17.710, unless the contributions are
Deposited into a separate bank account and
Not spent for the benefit of incumbent state officials or known candidates.
However, nothing in this subsection authorizes a state official, a caucus political committee or any person employed by or acting on behalf of a state official to take any of the actions prohibited by subsections (8) or (9)(b) of this rule.

(13) Session freeze solicitations. If a person is solicited for a contribution during the legislative session freeze period

By a state official, a caucus political committee, or another person employed by or acting on behalf of a state official, and
The contribution is to a caucus political committee, a bona fide political party, or a political committee that supports or opposes candidates for state or local office, and
The person makes a contribution during or after the freeze period in response to this solicitation, the contribution is subject RCW 42.17.710 and subsection (12) of this rule.
(14) Spending contributions to benefit incumbents or known candidates. For purposes of complying with subsections (7)(f), (8)(e) and (f), and (12) of this rule, contributions are considered spent for the benefit of incumbent state officials or known candidates if the contributions are used at any time for one or more of the following purposes.

(a) Contributions to incumbent state officials or known candidates.

(b) Independent expenditures supporting incumbent state officials or known candidates, or opposing their opponents, whether or not the opponents are themselves known candidates during a legislative session freeze period.

(c) Payments to staff, consultants or advisors for performing activities that directly assist or promote the election of incumbent state officials or known candidates.

(d) Polls or surveys that relate to incumbent state officials, known candidates or their districts, or to general voter attitudes or preferences, unless

A poll or survey is produced, conducted, tabulated and analyzed according to the terms of a written confidentiality agreement and, if the agreement is breached, all reasonable steps are taken to enforce it, and
The results of a poll or survey are not provided by the spender, or with the spender's permission or prior knowledge, to incumbent state officials, known candidates or their agents.
However, candidate recruitment poll or survey results may be provided to an individual who later becomes a known candidate without the expenditure being considered as benefiting a known candidate so long as the poll or survey does not constitute a contribution to the individual or does not otherwise support or promote his or her election to state or local office. For purposes of this subsection, a "candidate recruitment poll or survey" is a poll or survey that is conducted for the sole purpose of recruiting candidates to run for public office and only determines
The respondent's party preference,
The level of support the incumbent currently has and how strong that support is, but not why he or she has that support,
Whether respondents recognize the names of individuals who may decide to seek that elective office,
Whether respondents currently hold a favorable opinion about these individuals, their abilities or fitness for elective office, but not why such opinions are held,
Whether respondents would likely vote for one or more of these individuals were they to seek office, but not why respondents would vote in the manner they indicated or whether they could be persuaded to change their vote, and
The validity of the poll or survey results.
(e) Any other expenditure that directly benefits or promotes the election to state or local office of incumbent state officials or known candidates.

[Statutory Authority: RCW 42.17.370(1). 98-23-016, 390-17-400, filed 11/6/98, effective 12/7/98; 96-01-103, 390-17-400, filed 12/19/95, effective 1/19/96. Statutory Authority: RCW 42.17.370. 93-16-064, 390-17-400, filed 7/30/93, effective 8/30/93.]

OTS-9545.1


AMENDATORY SECTION(Amending WSR 06-11-132, filed 5/23/06, effective 6/23/06)

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))) (15)(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 42.17.020(21) and 42.17.640 (((14))) (15)(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 provisions of RCW 42.17.510 through 42.17.550.

(4)(a) A bona fide political party may use contributions it receives pursuant to RCW 42.17.640(((14))) (15) to 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 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 no later than the ((20th)) 10th day of the month following the month in which the expenditure was made.

(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))) (15), 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 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 and 42.17.562. 06-11-132, 390-17-030, filed 5/23/06, effective 6/23/06. Statutory Authority: RCW 42.17.370(1). 04-12-056, 390-17-030, filed 5/28/04, effective 6/28/04; 02-12-007, 390-17-030, filed 5/23/02, effective 6/23/02; 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-9547.1


AMENDATORY SECTION(Amending WSR 06-11-132, filed 5/23/06, effective 6/23/06)

WAC 390-18-025   Advertising -- Identification of "top five contributors."   (1) For purposes of RCW 42.17.510 (2), (4) and (5), "top five contributors" means the five persons, as defined in RCW 42.17.020, giving the largest aggregate contributions exceeding seven hundred dollars during the twelve-month period preceding the date on which the advertisement is published or otherwise presented to the public. If more than five contributors give an amount equal to the largest aggregate contribution exceeding seven hundred dollars and the funds are 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)(((a))) For independent expenditure advertisements or electioneering communications, the "top five contributors" identification requirement of RCW 42.17.510 applies to all political committees that make independent expenditures, including continuing political committees and out-of-state political committees subject to chapter 42.17 RCW other than a bona fide political party committee.

(((b) For electioneering communications, the "top five contributors" identification requirement of RCW 42.17.510 applies to all political committees that make electioneering communications including continuing political committees and out-of-state political committees subject to chapter 42.17 RCW.))

(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 for advertisements supporting or opposing a candidate or slate of candidates or an electioneering communication identifying a specific 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 and this section.

However, a contributor's contributions earmarked for independent expenditures supporting or opposing a specific candidate or slate of candidates or electioneering communications identifying a specific candidate or slate of candidates shall not be used with respect to 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.

[Statutory Authority: RCW 42.17.370 and 42.17.562. 06-11-132, 390-18-025, filed 5/23/06, effective 6/23/06. Statutory Authority: RCW 42.17.370(1). 02-12-007, 390-18-025, filed 5/23/02, effective 6/23/02.]

OTS-9544.1


NEW SECTION
WAC 390-16-320   Candidates in small political subdivisions -- Reporting.   (1) According to RCW 42.17.030 and 42.17.405(7), a candidate for election in any political subdivision must report pursuant to chapter 42.17 RCW and TITLE 390 WAC if the candidate receives five thousand dollars or more in contributions or expects to receive five thousand dollars or more in contributions during an election cycle.

(2) It is presumed the candidate "expects to receive" five thousand dollars or more when any one of the following first occurs:

(a) The candidate or candidate's authorized committee receives at least five thousand dollars in aggregate contributions, including contributions from the candidate;

(b) The candidate is seeking the same office last sought, the candidate's election is in the current calendar year, and his or her campaign contributions in the previous election for the same office were five thousand dollars or more in the aggregate;

(c) The contributions received on or before March 31 of the election year total one thousand two hundred fifty dollars or more;

(d) The contributions received on or before June 30 of the election year total two thousand five hundred dollars or more;

(e) The contributions received on or before September 30 of the election year total three thousand seven hundred fifty dollars or more; or

(f) The candidate otherwise anticipates that five thousand dollars or more will be received during the election cycle.

(3) Surplus funds carried over from a candidate's previous campaign are not contributions to the candidate's new campaign and do not count toward the five thousand dollar reporting threshold.

(4) A candidate or candidate's authorized committee that receives, or expects to receive, five thousand dollars or more shall:

(a) Within two weeks of the date the reporting obligation begins under subsection (1) or (2) of this section, file:

(i) A candidate registration, PDC form C1;

(ii) A personal financial affairs statement, PDC form F1 and, if relevant, the F1 Supplement; and

(iii) Contribution and expenditure reports, PDC forms C3 and C4 with appropriate attachments and schedules; and

(b) Otherwise comply with the campaign finance reporting and other provisions of chapter 42.17 RCW and TITLE 390 WAC.

[]

OTS-9543.1


NEW SECTION
WAC 390-05-275   Definition -- Party organization.   "Party organization," as that term is used in chapter 42.17 RCW and TITLE 390 WAC, means a bona fide political party as defined in RCW 42.17.020.

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Washington State Code Reviser's Office