WSR 13-09-049

PROPOSED RULES

PUBLIC DISCLOSURE COMMISSION


[ Filed April 15, 2013, 3:26 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 12-19-074.

Title of Rule and Other Identifying Information: Amending WAC 390-05-290 Definition -- Political advertising, 390-05-520 Periodical, 390-18-030 Advertising -- Exemptions from identification and 390-17-405 Volunteer services; and new section WAC 390-18-015 Online political advertising.

Hearing Location(s): 711 Capitol Way, Room 206, Olympia, WA 98504, on May 22, 2013, at 9:30 a.m.

Date of Intended Adoption: May 22, 2013.

Submit Written Comments to: Nancy Krier, 711 Capitol Way, Room 206, Olympia, WA 98504, e-mail nancy.krier@pdc.wa.gov, fax (360) 753-1112, by May 13, 2013.

Assistance for Persons with Disabilities: Contact Jana Greer by e-mail jana.greer@pdc.wa.gov, (360) 586-0544 or (360) 753-1111.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The public disclosure commission (PDC) implements the campaign finance and disclosure laws in chapter 42.17A RCW. Those laws describe that political campaign contributions and expenditures are to be fully disclosed, and that sponsors of political advertising are to be identified to the public. The commission's rules are in TITLE 390 WAC. The commission proposes to amend four rules (WAC 390-05-290, 390-05-520, 390-18-030 and 390-17-405), and adopt one new rule (WAC 390-18-015) to address online political advertising and volunteer online services provided to a candidate or political committee.

In 2007, through an interpretive statement, the commission provided guidance to campaigns with respect to online campaign activity. The commission also determined it would not engage in rule making on that subject at that time, but in the future would review that guidance and may subsequently update its rules as online campaign activity developed.

Since May 2012, the commission has been reviewing and considering information about developments occurring since 2007 in online political advertising and current uses of technology by campaigns in Washington. The commission has determined that online campaign activity is becoming increasingly used by candidates, political committees and others to support or oppose candidate and ballot measures and to sway voters, but its rules in TITLE 390 WAC do not yet reflect such developments. Therefore, the commission determined it should provide more guidance and clarification to campaigns with respect to their online activity and the requirements under chapter 42.17A RCW, and it should update its rules to improve disclosure to the public about who is sponsoring online political advertising. The commission determined that it should revise its rules to:

- Update definitions to address online campaign activity, including to provide definitions of "mass communication" and "online" (proposed amendments to WAC 390-05-290 and 390-05-520);

- Explain disclosure requirements for online political advertising (proposed new WAC 390-18-015);

- Update exemptions from sponsor identification in political advertising to provide alternatives when it is impractical to provide the identification because of technological limitations for small online ads (proposed amendments to WAC 390-18-030);

- Update exemptions from sponsor identification to address political advertising produced and disseminated by individuals using their own modest resources and acting independently of campaigns and other entities, recognizing such activity now occurs online (proposed amendments to WAC 390-18-030); and

- Update the volunteer services rule to include web-based activity by campaign volunteers (such as responding to e-mails, maintaining the campaign's web site, and the like) (proposed amendments to WAC 390-17-405).

Reasons Supporting Proposal: The proposed rule amendments and proposed new rule modernize and clarify the political advertising and campaign rules by recognizing and addressing online advertising and online volunteer services to a campaign. The proposals benefit campaigns and political advertising sponsors by providing more contemporary guidance. The proposals benefit the public, including the voters, by enhancing disclosure of who is sponsoring online political advertising in today's campaigns.

Statutory Authority for Adoption: RCW 42.17A.110, 42.17A.320.

Statute Being Implemented: RCW 42.17A.005, 42.17A.320.

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: This rule should result in no increased costs to the agency.

Name of Proponent: PDC, governmental.

Name of Agency Personnel Responsible for Drafting: Nancy Krier, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 753-1980; Implementation and Enforcement: Andrea McNamara Doyle, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 753-1111.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The implementation of these rule amendments has minimal impact on small business. The PDC is not subject to the requirement to prepare a school district fiscal impact statement, per RCW 28A.305.135 and 34.05.320.

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 RCW 34.05.328. Further, the PDC does not voluntarily make that section applicable to the adoption of these rules pursuant to subsection (5)(a)(ii), and to date, the joint administrative rules review committee has not made the section applicable to the adoption of these rules.

April 15, 2013

Nancy Krier

General Counsel

OTS-5369.3


AMENDATORY SECTION(Amending Order 85-03, filed 7/9/85)

WAC 390-05-290   ((Definition -- ))Political advertising definitions.   (1) "Mass communication" means a communication intended to reach a large audience through any of the following methods:

(a) Advertising displays, newspaper advertising, billboards, signs;

(b) Brochures, articles, tabloids, fliers, periodicals;

(c) Radio or television presentations;

(d) Sample ballots (see WAC 390-17-030);

(e) Online or other electronic transmission methods;

(f) One hundred or more letters, e-mails, text messages or similar communications that are identical or substantially similar in nature, directed to specific recipients, and sent within a thirty-day period; and

(g) Other mass means of disseminating political advertising, unless excluded by chapter 42.17A RCW or commission rule.

(2) "Online" means disseminating through a network of interconnected computers or devices, such as the internet or similar systems enabling electronic dissemination or exchange of communications. Examples include, but are not limited to, internet web sites, web-based social media (such as Facebook, Twitter, and other electronic publishing platforms), e-mails, and text messages.

(3) "Political advertising" is defined under RCW 42.17A.005 to include a mass communication used for the purpose of appealing, directly or indirectly, for votes or for financial or other support or opposition in any election campaign.

(4) Political advertising does not include letters to the editor, news or feature articles, editorial comment or replies thereto in a regularly published newspaper, periodical, or on a radio or television broadcast where payment for the ((printed)) space or ((broadcast)) time is not normally required.

[Statutory Authority: RCW 42.17.370(1). 85-15-020 (Order 85-03), 390-05-290, filed 7/9/85.]


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

WAC 390-05-520   Periodical.   For electioneering communications, "periodical" means a publication on paper that is serial in nature and appears or is intended to appear indefinitely ((at regular)), issued regularly or at stated intervals at least once every three months. For all other political advertising, "periodical" means a publication that is serial in nature and appears or is intended to appear indefinitely, issued regularly or at stated intervals at least once every three months.

[Statutory Authority: RCW 42.17.370 and 42.17.562. 06-11-132, 390-05-520, filed 5/23/06, effective 6/23/06.]

OTS-5370.3


AMENDATORY SECTION(Amending WSR 12-03-002, filed 1/4/12, effective 2/4/12)

WAC 390-17-405   Volunteer services.   (1) In accordance with RCW 42.17A.005 (13)(b)(vi), an individual may perform services or labor for a candidate or political committee without incurring a contribution, so long as the individual is not compensated by any person for the services or labor rendered and the services are of the kind commonly performed by volunteer campaign workers. These commonly performed services include:

(a) Office staffing;

(b) Doorbelling or leaflet drops;

(c) Mail handling (folding, stuffing, sorting and postal preparation, processing e-mails to and from the campaign);

(d) Political or fund-raising event staffing;

(e) Telephone bank activity (conducting voter identification, surveys or polling, and get-out-the-vote campaigns);

(f) Construction and placement of yard signs, hand-held signs or in-door signs;

(g) Acting as a driver for candidate or candidate or committee staff;

(h) Scheduling of campaign appointments and events;

(i) Transporting voters to polling places on election day;

(j) Except as provided in subsection (2) of this section, preparing campaign disclosure reports required by chapter 42.17A RCW and otherwise helping to ensure compliance with state election or public disclosure laws;

(k) Campaign consulting and management services, polling and survey design, public relations and advertising (including online advertising), or fund-raising performed by any individual, so long as the individual does not ordinarily charge a fee or receive compensation for providing the service; ((and))

(l) Creating, designing, posting to and maintaining a candidate or political committee's official campaign web site or online forum, so long as the individual does not ordinarily charge a fee or receive compensation for providing the service; and

(m) All similar activities as determined by the commission.

(2) An attorney or accountant may donate his or her professional services to a candidate, a candidate's authorized committee, a political party or a caucus political committee, without making a contribution in accordance with RCW 42.17A.005 (13)(b)(viii), if the attorney or accountant is:

(a) Employed and his or her employer is paying for the services rendered;

(b) Self-employed; or

(c) Performing services for which no compensation is paid by any person. However, neither RCW 42.17A.005 (13)(b)(viii) nor this section authorizes the services of an attorney or an accountant to be provided to a political committee without a contribution ensuing, unless the political committee is a candidate's authorized committee, political party or caucus political committee and the conditions of RCW 42.17A.005 (13)(b)(viii) and (a), (b) or (c) of this subsection are satisfied, or unless the political committee pays the fair market value of the services rendered.

[Statutory Authority: RCW 42.17A.110. 12-03-002, 390-17-405, filed 1/4/12, effective 2/4/12. Statutory Authority: RCW 42.17.370. 07-07-005, 390-17-405, filed 3/8/07, effective 4/8/07. Statutory Authority: RCW 42.17.370(1). 98-12-037, 390-17-405, filed 5/28/98, effective 6/28/98. Statutory Authority: RCW 42.17.390. 94-11-017, 390-17-405, filed 5/5/94, effective 6/5/94.]

OTS-5400.3


NEW SECTION
WAC 390-18-015   Online political advertising.   (1) For the purposes of RCW 42.17A.320, the procedures in this rule apply to online political advertising unless otherwise exempted by chapter 42.17A RCW or commission rule.

(2) All online advertising must include a candidate's party preference as described in RCW 42.17A.320(1).

(3) Advertising disseminated in a paper publication and reproduced in an identical manner in the online edition (such as an online edition of a newspaper), or disseminated only in an online edition of the publication must include the disclosures required in WAC 390-18-010(4).

(4) Independent expenditure advertising prepared for radio, telephone and television that is reproduced in an identical manner online or prepared only for online dissemination must provide the disclosures required in WAC 390-18-010 (6)(a).

(5) Political committee web sites and other online forums created by a political committee must include the sponsor's name and address. Political committees sponsoring online independent expenditures advertising must provide the disclosures required in WAC 390-18-010 (6)(c).

(6) Other online political advertising sponsored for the purpose of appealing, directly or indirectly, for votes or for financial or other support in an election campaign must include the sponsor's name and address.

(7) Small online advertising may provide required disclosures by using an automatic display described in WAC 390-18-030 when advertising character or size limits imposed by the online provider make full compliance with RCW 42.17A.320 impractical.

[]


AMENDATORY SECTION(Amending WSR 12-03-002, filed 1/4/12, effective 2/4/12)

WAC 390-18-030   Advertising -- Exemptions from identification and alternatives for online advertising.   ((Pursuant to)) (1) RCW 42.17A.320(((6),)) requires that political advertising must identify certain information. The commission is authorized to exempt advertising where the sponsor identification disclosures required by RCW 42.17A.320 (1) and (2) are impractical. In addition, other political advertising is exempt from providing certain disclosures.

(2) The following forms of advertising need not include the sponsor's name and address, the "no candidate authorized this ad" sponsor identification, the "top five contributors," or the identification of the individual, corporation, union, association, or other entity that established, maintains, or controls the sponsoring political committee as otherwise required by RCW 42.17A.320 (1) and (2) because such identification is impractical: Ashtrays, badges and badge holders, balloons, bingo chips, brushes, bumper stickers (( -- )) - size 4" x 15" or smaller, buttons, cigarette lighters, clothes pins, clothing, coasters, combs, cups, earrings, emery boards, envelopes, erasers, frisbees, glasses, golf balls, golf tees, hand-held signs, hats, horns, ice scrapers, inscriptions, key rings, knives, labels, letter openers, magnifying glasses, matchbooks, nail clippers, nail files, newspaper ads of one column inch or less (excluding online ads), noisemakers, paper and plastic cups, paper and plastic plates, paper weights, pencils, pendants, pennants, pens, pinwheels, plastic tableware, pocket protectors, pot holders, reader boards where message is affixed in moveable letters, ribbons, 12-inch or shorter rulers, shoe horns, skywriting, staple removers, stickers (( -- )) - size 2-3/4" x 1" or smaller, sunglasses, sun visors, swizzle sticks, state or local voters pamphlets published pursuant to law, tickets to fund-raisers, water towers, whistles, yard signs (( -- )) - size 4' x 8' or smaller, yo-yos, and all other similar items.

(3) Online political advertising must provide the same disclosures that apply to non-online advertising to the extent practical. As an alternative, small online advertising with character or size limits imposed by the provider in a manner that makes full compliance with RCW 42.17A.320 impractical may provide the required disclosures by using an automatic display with the advertising that takes the reader directly to the required disclosures.

(a) These automatic displays must be clear and conspicuous, unavoidable, immediately visible, remain visible for at least four seconds, and display a color contrast as to be legible. Online advertising that includes only audio must include the disclosures in a manner that is clearly spoken.

(b) Examples include nonblockable pop-ups, roll-overs, a separate text box or link that automatically appear with or in the advertising, or other similar mechanisms that disclose the information required in RCW 42.17A.320.

(4) Political advertising created and distributed by an individual using his or her own modest resources is not required to provide the disclosures in RCW 42.17A.320, when all of the following criteria are satisfied:

(a) The individual spends less than one hundred dollars in the aggregate to produce and distribute the advertising or less than fifty dollars to produce and distribute online political advertising;

(b) The individual acts independently and not as an agent of a candidate, authorized committee, political committee, corporation, union, business association, or other organization or entity;

(c) The advertising is not a contribution under RCW 42.17A.005 (13)(a)(ii) or (iii) or WAC 390-05-210;

(d) The individual does not receive donations, contributions, or payments from others for the advertising, and is not compensated for producing or distributing the advertising; and

(e) The advertising is either:

A letter, flier, handbill, text or e-mail from the individual that does not appear in a newspaper or other similar mass publication (except for letters to the editor and similar communications addressed in WAC 390-05-490(4)); or

Disseminated on the individual's social media site, personal web site, or an individual's similar online forum where information is produced and disseminated only by the individual.

(5) Political advertising that is internal political communications to members is not required to separately include the disclosures in RCW 42.17A.320 where the sponsor's name is otherwise apparent on the face of the communication.

[Statutory Authority: RCW 42.17A.110. 12-03-002, 390-18-030, filed 1/4/12, effective 2/4/12. Statutory Authority: RCW 42.17.370. 11-05-051, 390-18-030, filed 2/10/11, effective 3/13/11. Statutory Authority: RCW 42.17.370 and 42.17.562. 06-11-132, 390-18-030, filed 5/23/06, effective 6/23/06. Statutory Authority: RCW 42.17.370(1). 04-12-057, 390-18-030, filed 5/28/04, effective 6/28/04. Statutory Authority: RCW 42.17.390. 95-01-074A, 390-18-030, filed 12/16/94, effective 1/16/95. Statutory Authority: RCW 42.17.370(1). 85-15-020 (Order 85-03), 390-18-030, filed 7/9/85.]