HOUSE OF REPRESENTATIVES

                      Olympia, Washington

Bill Analysis      Bill No.  HB 1673

Penalizing false political advertising.

Brief Title                              Hearing Date: 2/19/99

Reps. Lambert and O=Brien                   Staff: Steve Lundin

Sponsor(s)                          State Government Committee

                                              Phone:  786-7127

BACKGROUND:

It is a violation of the state=s public disclosure laws for a person to sponsor false political advertising in support of or opposition to a candidate, or a campaign in support of or opposition to a ballot proposition, if:

oThe false political advertising is made with actual malice; and

oThe violation is proven by clear and convincing evidence.

A person who is in violation of the public disclosure laws is subject to a civil penalty of not more than $10,000 for each violation.  In addition, an election may be voided by a court if it finds that a violation of the public disclosure laws by a candidate or political committee probably affected the outcome of an election.  If such a finding is made, a special election is held within 60 days of the finding.

The state Supreme Court in split decisions recently found this statute relating to false political advertising to be unconstitutional.  Four separate decisions were issued, none of which had a majority of the court.  Three justices found the statute to be facially unconstitutional.   Two justices found the portion of the statute relating to false advertising about ballot propositions to be facially unconstitutional, but indicated that constitutional legislation could be crafted relating to false advertising about candidates without indicating whether the clear and convincing evidence requirement was a necessary element of the statute.  Two justices indicated that the statute was constitutional as it applied to both ballot measures and candidates, but emphasized the clear and convincing evidence requirement.  Two justices found the statute to be constitutional as it applied to both ballot measures and candidates and mentioned, but did not emphasize, the clear and convincing evidence requirement.

SUMMARY:

The public disclosure statute making it a violation to sponsor false political advertising is repealed and replaced with three separate provisions.  These three separate provisions only apply to false political advertising about a candidate and require the person to have knowingly sponsored the false advertising with actual malice, but do not include a clear and convincing evidence requirement.  A violation of these provisions within 30 or fewer days of a primary or general election is subject to double the maximum civil penalty otherwise provided in the public disclosure laws.

One provision makes it a violation to sponsor political advertising falsely representing a candidate to be an incumbent for the office that is sought when in fact the candidate is not the incumbent.

A second provision makes it a violation to sponsor political advertising falsely representing that a candidate has the support or endorsement of a person or organization when in fact the candidate does not have this support or endorsement.

A third statute makes it a violation to sponsor political advertising that contains a false statement of material fact calculated to benefit or harm a candidate.

FISCAL NOTE:  Not requested.

EFFECTIVE DATE:  Ninety days after adjournment of session in which bill is passed.