WSR 98-19-111

PROPOSED RULES

PUBLIC DISCLOSURE COMMISSION

[Filed September 23, 1998, 9:20 a.m.]



Original Notice.

Preproposal statement of inquiry was filed as WSR 98-16-054.

Title of Rule: Time limit to solicit or accept contributions (moratorium on contributions during the legislative session freeze period).

Purpose: To implement RCW 42.17.710, the statutory provision that prohibits state officials and persons acting on their behalf from soliciting or accepting contributions during a legislative session freeze period.

Statutory Authority for Adoption: RCW 42.17.370(1).

Statute Being Implemented: RCW 42.17.710.

Summary: The proposed amendment to WAC 390-17-400 effectuates the decision rendered by the Washington State Supreme Court in Senate Republican Campaign Committee v. The Public Disclosure Commission and rewrites and reorganizes the rule so that it is clearer and easier to understand.

Reasons Supporting Proposal: The proposed amendment provides needed guidance to state officials, caucus political committees, political parties and others who are affected by the prohibition contained in RCW 42.17.710.

Name of Agency Personnel Responsible for Drafting and Implementation: Vicki Rippie, Public Disclosure Commission, 711 Capitol Way, Room 403, Olympia, (360) 586-4838; and Enforcement: Susan Harris, Public Disclosure Commission, 711 Capitol Way, Room 403, Olympia, (360) 753-1981.

Name of Proponent: Public Disclosure Commission, governmental.

Rule is necessary because of state court decision, 943 P.2d. 1358 (Wash. 1997).

Explanation of Rule, its Purpose, and Anticipated Effects: During a legislative session freeze period, RCW 42.17.710 prohibits state officials and anyone acting on behalf of state officials from soliciting or accepting contributions to a candidate, to retire a campaign debt or to a public office fund.

The State Supreme Court has said that the statutory language prohibiting the solicitation or acceptance of contributions to candidates means that caucus political committees may solicit or accept contributions during a freeze period so long as those contributions are not used for the benefit of incumbent state officials or known candidates. Prior to this decision, the commission had prohibited caucus committees from soliciting or accepting all contributions (on the premise that caucus committees act on behalf of state officials and exist for the purpose of electing candidates to state office).

The proposed rule implements the Supreme Court's decision regarding caucus political committees. It also applies the court's findings to situations where, during a legislative freeze period, a state official or someone acting on behalf of a state official solicits or accepts contributions on behalf of other types of political committees, including political parties, PACs and ballot measure committees.

Proposal Changes the Following Existing Rules: The changes clarify how RCW 42.17.710 impacts caucus political committees, political parties, PACs and other political committees during the legislative session, the thirty days before and after session and during any special session of the legislature in light of the decision by the Washington State Supreme Court.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The amendment does not have an impact on small businesses unless those businesses choose to make political contributions in response to a solicitation from a state official or a person employed by or acting on behalf of a state official.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Public Disclosure Commission is not specified in section 201, chapter 403, Laws of 1995, as being subject to this section nor has it been brought under the section as otherwise provided in the chapter law.

Hearing Location: John A. Cherberg Building, First Floor, Senate Hearing Room #2, 304 15th Avenue, Olympia, WA, on October 27, 1998, at 9:00 a.m.

Assistance for Persons with Disabilities: Jennifer Alloway, 753-1111.

Submit Written Comments to: Vicki Rippie, Public Disclosure Commission, P.O. Box 40908, Olympia, WA 98504-0908, fax (360) 753-1112, by October 16, 1998.

Date of Intended Adoption: October 27, 1998.

September 22, 1998

Melissa Warheit

Executive Director



AMENDATORY SECTION (Amending WSR 96-01-103, filed 12/19/95)



WAC 390-17-400  Time limit to solicit or accept contributions. ((For purposes of complying with RCW 42.17.710:)) The purpose of this rule is to clarify and implement RCW 42.17.710.

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

(2) (("Legislative caucus" means the caucus of members of a major political party in the state house of representatives or in the state senate.)) "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")) "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 adjournment of the regular legislative session.

(b) If a special session is held immediately following the end of the regular legislative session, ((this)) 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 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) ((An unsuccessful incumbent)) A state official must comply with RCW 42.17.710 until ((his or her term expires)) he or she no longer holds state office.

(6) ((A state official may solicit or accept contributions during the legislative session freeze period to assist his or her campaign for a federal office.

(7) A state official is not prohibited from accepting gifts and other items permitted under chapter 42.52 RCW during the legislative session freeze period so long as the gift or other item is not (a) used to defray non-reimbursed public office related expenses, (b) a contribution to a candidate or authorized committee, or (c) used to retire a campaign debt.

(8) During the legislative session freeze period, no person shall solicit or accept contributions on behalf of or for the benefit of a state official for the purpose of retiring a campaign debt of the state official or raising funds for a state official's future election to a non-federal public office.

(9) During the legislative session freeze period, a bona fide political party shall not solicit or accept contributions on behalf of or for the benefit of a state official for the purpose of retiring a campaign debt of the state official or raising funds for a state official's future election to a non-federal public office. However, a bona fide political party may solicit or accept contributions for its own fundraising purposes.

(10) During the legislative session freeze period, a state official may sponsor, speak at or attend a fundraising event held by or on behalf of a bona fide political party as long as no contributions raised in conjunction with the event are earmarked or otherwise designated for one or more candidates for non-federal office.

(11) During the legislative session freeze period, no person shall solicit or accept contributions to a caucus political committee or any other political committee financed, controlled or operated by the legislative caucus as a whole or the officers of the caucus political committee, unless the purpose of the other political committee is to support or oppose a ballot measure.

(12) RCW 42.17.710 does not apply to the solicitation or acceptance of a contribution from a member of a legislative caucus using his or her personal funds as defined in WAC 390-17-305 or surplus funds as defined in RCW 42.17.020(41) by a caucus political committee or any other political committee financed, controlled or operated by the legislative caucus as a whole or by the officers of the caucus political committee.

(13) RCW 42.17.710 does not apply to a candidate's acceptance or use of his or her personal funds as defined in WAC 390-17-305 or his or her surplus funds as defined in RCW 42.17.020(41).

(14) During the legislative session freeze period, a state official is not prohibited from soliciting or accepting contributions on behalf of a nonprofit charitable organization.)) "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 non-reimbursed 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 non-reimbursed 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 non-reimbursed 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.

(e) Any other expenditure that directly benefits or promotes the election to state or local office of incumbent state officials or known candidates.



[Note: Possible additional language. If the Commission determines that the proposed language of WAC 390-17-400(14)(d) would be enhanced by including a definition of "candidate recruitment poll or survey," the following language, or text substantially similar to the following language, may be added to the end of proposed subsection (14)(d).]



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.





[Statutory Authority: RCW 42.17.370(1). 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.]



Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Legislature Code Reviser

Register

Washington State Code Reviser's Office