Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-24-061.

     Title of Rule and Other Identifying Information: TITLE 390 WAC, rules implementing chapter 445, Laws of 2005 (ESSB 5034 Electioneering communications), including independent expenditure reporting (WAC 390-16-060), and other related rules in TITLE 390 WAC.

     Hearing Location(s): Public Disclosure Commission, 711 Capitol Way, Room 206, Olympia, WA 98504, on April 27, 2006, at 9:30 a.m.

     Date of Intended Adoption: April 27, 2006.

     Submit Written Comments to: Doug Ellis, Assistant Director, 711 Capitol Way, Room 206, Olympia, WA 98504, e-mail dellis@pdc.wa.gov, fax (206) 753-1112, by April 24, 2006.

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

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To adopt new rules and amend existing rules to implement ESSB 5034 Electioneering communications legislation approved by the legislature and signed by the governor on May 13, 2005. The new rules and rule amendments will provide guidance to filers who engage in electioneering communications and independent expenditures.

     Reasons Supporting Proposal: To comply with statutory provisions under chapter 445, Laws of 2005.

     Statutory Authority for Adoption: RCW 42.17.370, [42.17].562(4).

     Statute Being Implemented: RCW 42.17.561-[42.17].575, [42.17].510, [42.17].020, and 42.17.640

     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 new rules and rule amendments are consistent with the legislative intent to improve disclosure of campaign spending and to fully implement the statutory restrictions on the uses of political party's exempt funds (soft money).

     Name of Proponent: Public disclosure commission, governmental.

     Name of Agency Personnel Responsible for Drafting: Vicki Rippie, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 753-1111; 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 these new rules and rule amendments impacts persons engaging in electioneering communications and independent expenditures. Small businesses are only affected if they engage in this election campaign activity.

     A cost-benefit analysis is not required under RCW 34.05.328. The public disclosure commission (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 this rule adoption pursuant to subsection (5)(a)(i) of section 201, and, to date, the joint audit and review committee has not made section 201 application to this rule adoption.

March 16, 2006

Vicki Rippie

Executive Director

OTS-8651.3

AMENDATORY SECTION(Amending WSR 96-09-015, filed 4/8/96, effective 5/9/96)

WAC 390-05-210   Definition -- Contribution.   (1) The term "contribution" as defined in RCW 42.17.020 shall be deemed to include, among other things, furnishing services or property or rights on a discriminatory basis or at less than their fair market value as defined in WAC 390-05-235, for the purpose of assisting any candidate or political committee. When such in-kind contribution of goods or services is provided, it shall be reported at its fair market value((,)) per WAC 390-05-235 and, pursuant to RCW 42.17.640, the fair market value is the amount of the contribution to be allocated to the contributor in determining compliance with the contributor's contribution limit.

     (2) Duplicating political advertising. The financing by a person of the dissemination, distribution, or republication, in whole or in part, of broadcast, written, graphic, or other form of political advertising prepared by a candidate, a political committee, or the authorized agent of a candidate or political committee is a contribution to the candidate or political committee.

     (3) Consulting with a state, local or judicial candidate. An expenditure made by a person in cooperation, consultation, concert or collaboration with, or at the request or suggestion of a candidate, the candidate's authorized committee or agent is a contribution to such candidate. An expenditure is presumed to be made in cooperation, consultation, concert or collaboration with, or at the request or suggestion of a candidate, the candidate's authorized committee or agent when:

     (a) Any arrangement, coordination or direction by the candidate, the candidate's authorized committee or agent is given to the expending person prior to the publication, distribution, display or broadcast of political advertising or electioneering communications or prior to an expenditure being made by that person supporting that candidate or opposing one or more of that candidate's opponents; or

     (b) An expenditure is made based on information about the candidate's plans, projects or needs provided to the expending person by the candidate, the candidate's authorized committee or agent with a view toward having an expenditure made; or

     (c) An expenditure is made by, through ((or)), in consultation with, or with the assistance of, including the fund-raising assistance of, any person who, during the ((current election cycle, (i) is or has been authorized to raise or spend over $500 per election on behalf of the candidate, or (ii))) twelve months preceding the expenditure, is or has been an officer of the candidate's authorized committee; or

     (d) The expenditure is made by or in consultation with any person who, during the ((current election cycle)) twelve months preceding the expenditure, is or has been receiving any form of campaign-related compensation or reimbursement from the candidate, the candidate's authorized committee or agent.

     (4) Consulting with a caucus political committee. An expenditure, that does not qualify as a contribution to a candidate under subsection (3) of this section, made by a person in cooperation, consultation, concert or collaboration with, or at the request or suggestion of a caucus political committee or its agent is a contribution to such caucus political committee. An expenditure is presumed to be made in cooperation, consultation, concert or collaboration with, or at the request or suggestion of a caucus political committee or its agent when:

     (a) Any arrangement, coordination or direction by the caucus political committee, its agent or another political committee financed, controlled or operated by the caucus is given to the expending person prior to the publication, distribution, display or broadcast of political advertising or electioneering communications or prior to an expenditure being made by that person supporting that caucus political committee or one or more of the candidates supported by it or opposing one or more of those candidates' opponents; or

     (b) An expenditure is made based on information about the caucus political committee's plans, projects or needs provided to the expending person by the caucus political committee, its agent or another political committee financed, controlled or operated by the caucus with a view toward having an expenditure made; or

     (c) An expenditure is made by, through ((or)), in consultation with, or with the assistance of, including the fund-raising assistance of, any person who, during the ((current election cycle, (i) is or has been authorized to raise or spend over $500 per year on behalf of the caucus political committee, or (ii))) twelve months preceding the expenditure, is or has been an officer of the caucus political committee or another political committee financed, controlled or operated by the caucus; or

     (d) The expenditure is made by or in consultation with any person who, during the ((current election cycle)) twelve months preceding the expenditure, is or has been receiving any form of campaign-related compensation or reimbursement from the caucus political committee, its agent or another political committee financed, controlled or operated by the caucus.

     (5) Consulting with a bona fide political party. An expenditure, that does not qualify as an contribution to a candidate under subsection (3) of this section, made by a person in cooperation, consultation, concert or collaboration with, or at the request or suggestion of a bona fide political party or its agent is a contribution to such bona fide political party. An expenditure is presumed to be made in cooperation, consultation, concert or collaboration with, or at the request or suggestion of a bona fide political party when:

     (a) Any arrangement, coordination or direction by the bona fide political party, its agent or a political committee financed, controlled or operated by the party is given to the expending person prior to the publication, distribution, display or broadcast of political advertising or electioneering communications or prior to an expenditure being made by that person supporting that bona fide political party or one or more of the candidates supported by it or opposing one or more of those candidates' opponents; or

     (b) An expenditure is made based on information about the bona fide political party's plans, projects or needs provided to the expending person by the bona fide political party or its agent with a view toward having an expenditure made; or

     (c) An expenditure is made by, through ((or)), in consultation with, or with the assistance of, including the fund-raising assistance of, any person who, during the ((current election cycle, (i) is or has been authorized to raise or spend over $2,500 per year in nonexempt funds on behalf of the bona fide political party, or (ii))) twelve months preceding the expenditure, is or has been an officer of the bona fide political party or a political committee financed, controlled or operated by the bona fide political party; or

     (d) The expenditure is made by or in consultation with any person who, during the ((current election cycle)) twelve months preceding the expenditure, is or has been receiving any form of campaign-related compensation or reimbursement from the bona fide political party, its agent or a political committee financed, controlled or operated by the bona fide political party.

     (6) Consulting with other political committees. An expenditure made by a person in cooperation, consultation, concert or collaboration with, or at the request or suggestion of a political committee is a contribution to such political committee. An expenditure is presumed to be made in cooperation, consultation, concert or collaboration with, or at the request or suggestion of a political committee when:

     (a) Any arrangement, coordination or direction by the political committee, its agent or another political committee financed, controlled or operated by the committee is given to the expending person prior to the publication, distribution, display or broadcast of political advertising or prior to an expenditure being made by that person ((supporting)) benefiting that political committee; or

     (b) An expenditure is made based on information about the political committee's plans, projects or needs provided to the expending person by the political committee or its agent with a view toward having an expenditure made; or

     (c) An expenditure is made by, through ((or)), in consultation with, or with the assistance of, including the fund-raising assistance of, any person who, during the ((current election cycle, (i) is or has been authorized to raise or spend over $5,000 on behalf of the political committee or another political committee financed, controlled or operated by the committee, or (ii))) twelve months preceding the expenditure, is or has been an officer of the political committee or another political committee financed, controlled or operated by the committee; or

     (d) An expenditure is made by or in consultation with any person who, during the ((current election cycle)) twelve months preceding the expenditure, is or has been receiving any form of campaign-related compensation or reimbursement from the political committee, its agent or another political committee financed, controlled or operated by the committee.

[Statutory Authority: RCW 42.17.370(1). 96-09-015, § 390-05-210, filed 4/8/96, effective 5/9/96. Statutory Authority: RCW 42.17.370. 93-16-064, § 390-05-210, filed 7/30/93, effective 8/30/93; 91-14-041, § 390-05-210, filed 6/27/91, effective 7/28/91. Statutory Authority: RCW 42.17.370(1). 88-14-064 (Order 88-02), § 390-05-210, filed 7/1/88; 85-15-020 (Order 85-03), § 390-05-210, filed 7/9/85; Order 62, § 390-05-210, filed 8/26/75.]

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     (2) "Electioneering communication" also does not include:

     (a) Letters to the editor or comparable communications to news media described in RCW 42.17.020 (21)(c);

     (b) Communications conveyed through web sites, e-mails, telephone calls, or in-person leaflet/pamphlet drops at street addresses; or

     (c) Communications conveyed in a manner not specified in RCW 42.17.020(20).

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     (1) The commission will examine whether the organization is a legitimate membership organization with common interest goals and objectives, taking into account such factors as the organization's permanence, structure and whether it has formal organizing documents, membership criteria and services it provides its members.

     (2) With respect to the status of members of an organization, the commission will examine whether a valid, active relationship exists between the organization and its members or classes of members for purposes other than influencing the outcome of an election, taking into account such factors as whether the members affirmatively accept membership and the rights and obligations conferred on members by the organization.

     (3) If a membership organization and its members satisfy the criteria regarding "membership associations" and "members" established by the Federal Election Commission (FEC) in 11 C.F.R. Sec. 100.134 (e)-(g), the commission will consider the organization and its members as qualifying for the exemption in RCW 42.17.020 (15)(b)(v) and (21)(g), unless the communication was not sent primarily to members. However, these FEC criteria are not the only indicators of legitimate membership organizations or valid members, a determination that will be made by the commission on a case-by-case basis as necessary.

     (4) In determining whether an internal political communication is "primarily" limited to the members of an organization or political committee, the commission will consider whether any distribution to nonmembers is incidental and isolated.

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     (a) Designed to benefit or promote the community's health, safety or welfare or nonprofit community events;

     (b) Not selling a product or service;

     (c) Sponsored by an organization with a history of routinely providing the community such outreach public service messages in the service area of the organization;

     (d) Of primary interest to the general public and is not targeted to reach only voters or voters in a specific jurisdiction;

     (e) Not coordinated with or controlled or paid for by a candidate's authorized committee or political committee;

     (f) Subject to the policies for public service announcements of the entity broadcasting, transmitting, mailing, erecting, distributing or otherwise publishing the communication including policies regarding length, timing and manner of distribution; and

     (g) One for which the arrangements to include a reference or depiction of the candidate or candidates in the communication were made at least six months before the candidate became a candidate.

     (2) Examples of public service announcements include but are not limited to communications regarding nonprofit community events, outreach or awareness activities such as: Breast cancer screening, heart disease, domestic violence, organ donation, emergency or other disaster relief for organizations such as the Red Cross, programs designed to encourage reading by school children, childhood safety, fund drives for charitable programs such as United Way, and similar matters.

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     (2) Goods, services, property or rights other than money or its equivalent are deemed to have a monetary value equivalent to their fair market value.

     (3) "Source of funds" does not include those things of value specified in RCW 42.17.020 (15)(b).

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OTS-8652.2

AMENDATORY SECTION(Amending WSR 02-12-007, filed 5/23/02, effective 6/23/02)

WAC 390-16-060   Forms for report of independent expenditures and electioneering communications.   (1) The official form for reports of independent expenditures and electioneering communications as required by RCW 42.17.100 ((and)), 42.17.103 and 42.17.565 is designated "C-6," revised ((6/02)) 5/06. Copies of this form are available at the Commission Office, Room 206, Evergreen Plaza Building, Olympia, Washington 98504 and on-line at www.pdc.wa.gov. Any paper attachments shall be on 8 1/2" x 11" white paper.

     (2) The C-6 report may be filed electronically consistent with WAC 390-19-040 by using an electronic filing alternative provided or approved by the commission. C-6 reports of electioneering communications shall be filed electronically as provided in RCW 42.17.565.

((STRICKEN GRAPHIC

STRICKEN GRAPHIC))

((STRICKEN GRAPHIC

STRICKEN GRAPHIC))

[Statutory Authority: RCW 42.17.370(1). 02-12-007, § 390-16-060, filed 5/23/02, effective 6/23/02; 02-03-018, § 390-16-060, filed 1/4/02, effective 2/4/02. Statutory Authority: RCW 42.17.370. 89-20-068, § 390-16-060, filed 10/4/89, effective 11/4/89. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), § 390-16-060, filed 2/5/86; 82-11-026 (Order 82-03), § 390-16-060, filed 5/10/82; Order 77, § 390-16-060, filed 6/2/76; Order 62, § 390-16-060, filed 8/26/75; Order 6, § 390-16-060, filed 3/23/73.]

     (2) An out-of-state political committee shall report pursuant to RCW 42.17.565 if it sponsors an electioneering communication defined in RCW 42.17.020.

     (3) The sponsor of an electioneering communication shall report pursuant to RCW 42.17.565 and commission rules regarding electioneering communications, even if the expenditure also satisfies the definition of independent expenditure in RCW 42.17.020 or 42.17.100. Persons in compliance with this subsection are deemed in compliance with RCW 42.17.100 or 42.17.103.

     (4) Any person making an expenditure that is reportable under RCW 42.17.200, grass roots lobbying campaigns, that also satisfies the definition of electioneering communication in RCW 42.17.020 shall file pursuant to RCW 42.17.565 and commission rules regarding electioneering communications.

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     (2) An in-kind contribution also occurs when a person makes an expenditure that

•	Supports or opposes a candidate or a ballot measure,
•	Meets the definition of contribution in RCW 42.17.020(((14))) or WAC 390-05-210, and
•	Is other than a monetary contribution made directly to a candidate or political committee.

For example, an in-kind contribution occurs when a person, after collaborating with a candidate or a candidate's agent, purchases space in a newspaper for political advertising supporting that candidate or opposing that candidate's opponent.

     (3) An in-kind contribution also occurs when a person makes an electioneering communication that is a contribution as provided in RCW 42.17.570.

     (4) According to RCW 42.17.095(((8))) and WAC 390-16-238, a candidate may not use his or her campaign funds to make a contribution, including an in-kind contribution, to another candidate or a political committee. However, under RCW 42.17.095(((3))), a candidate may use surplus funds as defined in RCW 42.17.020 to make a contribution to a political party or caucus political committee.

     (((4))) (5) In-kind contributions to recipients who have limits.

     (a) If a state office candidate receives in-kind contributions from any person valued at more than $25 in the aggregate during an election cycle, the contribution is reportable by the giver and the recipient pursuant to chapter 42.17 RCW and is subject to the applicable contribution limit provided in RCW 42.17.640.

     (b) If a bona fide political party or legislative caucus committee receives in-kind contributions from any person valued at more than $25 in the aggregate during a calendar year, the contribution is reportable by the giver and the recipient pursuant to chapter 42.17 RCW and is subject to the applicable contribution limit provided in RCW 42.17.640.

     (c) If a state official against whom recall charges have been filed or a political committee supporting the recall of a state official receives in-kind contributions from any person valued at more than $25 in the aggregate during a recall campaign, the contribution is reportable by the giver and the recipient pursuant to chapter 42.17 RCW and is subject to the applicable contribution limits provided in RCW 42.17.640.

     (((5))) (6) Political committees that make in-kind contributions. A political committee that makes in-kind contributions to a candidate or political committee totaling more than $50 in the aggregate during a reporting period must identify the recipient and the amount of the contribution as part of its C-4 report covering that period.

     If the in-kind contribution is in the form of an expenditure that has been obligated, but not yet paid, the identity of the recipient candidate or political committee, along with a good faith estimate of the value of the contribution, must be disclosed in part 3 of Schedule B, in addition to the other information required by the form. When the expense is paid, the recipient's name and the amount of the contribution must be disclosed on Schedule A, along with the other information required by the form.

     If a political committee provides equipment, property or anything else of value owned, leased or controlled by it to a candidate or political committee, the contributing committee must attach a statement to its C-4 report showing the name of the candidate or political committee to whom the contribution was made and the date, description and fair market value of the in-kind contribution.

     (((6))) (7) Reporting by recipients. Except as provided in subsection (((4))) (5) of this section, in-kind contributions from one source are not reportable by the recipient candidate or political committee until the aggregate value of all in-kind contributions received from that source during a reporting period is more than $50. If this threshold is met, the in-kind contributions must be reported in part 1 of Schedule B to the C-4 report covering that reporting period.

     (((7))) (8) Valuing in-kind contributions.

     (a) For purposes of determining the value of goods or services provided as in-kind contributions, refer to WAC 390-05-235, Definition--Fair market value.

     (b) If an expenditure that constitutes an in-kind contribution is made, the value of the in-kind contribution to a particular candidate or political committee is the portion of the expense that benefits the candidate or political committee.

     (((8))) (9) Application of RCW 42.17.105(((8))) -- Last-minute contributions.

     (a) If an expenditure that constitutes an in-kind contribution is made no later than twenty-two days before a general election and written notice of the in-kind contribution is in the possession of the recipient candidate committee or political committee twenty-two or more days before that general election, the contribution is not subject to the respective $5,000 or $50,000 maximum amounts specified in RCW 42.17.105(((8))).

     (b) If an in-kind contribution is in the form of personal services donated to a campaign for the duration of the twenty-one days before a general election, and if written notice of the value of this donation is in the possession of the recipient candidate or political committee twenty-two or more days before the election, that in-kind contribution is not subject to the respective $5,000 or $50,000 maximum amounts specified in RCW 42.17.105(((8))).

[Statutory Authority: RCW 42.17.370(1). 04-12-054, § 390-16-207, filed 5/28/04, effective 6/28/04; 98-12-034, § 390-16-207, filed 5/28/98, effective 6/28/98. Statutory Authority: RCW 42.17.390. 94-11-016, § 390-16-207, filed 5/5/94, effective 6/5/94. Statutory Authority: RCW 42.17.370. 93-22-002, § 390-16-207, filed 10/20/93, effective 11/20/93; 93-16-064, § 390-16-207, filed 7/30/93, effective 8/30/93. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), § 390-16-207, filed 2/5/86; 82-14-016 (Order 82-04), § 390-16-207, filed 6/28/82; Order 79, § 390-16-207, filed 6/25/76.]

     (2) A corporation is participating in an election campaign if it:

     (a) Makes either a monetary or in-kind contribution to a candidate;

     (b) Makes an independent expenditure or electioneering communication in support of or opposition to a candidate;

     (c) Endorses a candidate prior to contributions being made by a subsidiary, branch or department of the corporation with respect to a candidate or that candidate's opponent;

     (d) Makes a recommendation regarding whether a candidate should be supported or opposed prior to a contribution being made by a subsidiary, branch or department of the corporation; or

     (e) Directly or indirectly collaborates or consults with its subsidiary, branch or department on matters relating to the support of or opposition to a candidate, including the amount of a contribution, when a contribution should be given, or what assistance, services or independent expenditures, or electioneering communications, if any, will be made or should be made in support of or opposition to a candidate.

     (3) Trade associations, labor unions, collective bargaining organizations. Two or more entities are treated as a single entity if one of the two or more entities is a local unit or branch of a trade association, labor union or collective bargaining association that is participating in an election campaign or making contributions.

     (4) A trade association, labor union or collective bargaining organization is participating in an election campaign if it:

     (a) Makes either a monetary or in-kind contribution to a candidate;

     (b) Makes an independent expenditure or electioneering communication in support of or opposition to a candidate;

     (c) Endorses a candidate prior to contributions being made by a local unit or branch of the association, union or organization with respect to a candidate or that candidate's opponent;

     (d) Makes a recommendation regarding whether a candidate should be supported or opposed prior to a contribution being made by a local unit or branch of the association, union or organization; or

     (e) Directly or indirectly collaborates or consults with its local unit or branch on matters relating to the support of or opposition to a candidate, including the amount of a contribution, when a contribution should be given, or what assistance, services or independent expenditures, or electioneering communications, if any, will be made or should be made in support of or opposition to a candidate.

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OTS-8653.3

AMENDATORY SECTION(Amending WSR 04-12-056, filed 5/28/04, effective 6/28/04)

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)(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)(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 ((political advertising)) provisions((,)) of RCW ((42.17.505)) 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) 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 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), 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(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.]

     (b) Contributions made to a caucus political committee, to a candidate or candidate's authorized committee which are earmarked for voter registration, absentee ballot information, get-out-the-vote campaigns, sample ballots are presumed to be for the purpose of promoting individual candidates and are subject to the contribution limits in RCW 42.17.640.

     (c) Contributions made to a caucus political committee, to a candidate or candidate's authorized committee which are earmarked for internal organization expenditures or fund-raising are presumed to be with direct association with individual candidates and are subject to the contribution limits in RCW 42.17.640.

     (2) "Exempt contributions account" is the separate bank account into which only exempt contributions are deposited and out of which only expenditures for exempt activities shall be made.

     (3) "Exempt activities" are those activities referenced in RCW 42.17.640(14) as further clarified by subsections (4), (5), (6), and (7) of this section ((and by the Washington state supreme court's decision regarding issue advocacy in Washington State Republican Party v. Washington State Public Disclosure Commission et al., 141 Wn.2d 245, 4 P.3d 808 (2000))). Only exempt activities are eligible for payment with exempt contributions.

     (4)(a) Except as permitted by WAC 390-17-030, Sample ballots and slate cards, activities referenced in RCW 42.17.640 (14)(a) that promote or constitute political advertising for one or more clearly identified candidates do not qualify as exempt activities.

     (b) A candidate is deemed to be clearly identified if the name of the candidate is used, a photograph or likeness of the candidate appears, or the identity of the candidate is apparent by unambiguous reference.

     (5) Activities referenced in RCW 42.17.640 (14)(a) that do not promote, or constitute political advertising for, one or more clearly identified candidates qualify as exempt activities. For example, get-out-the-vote telephone bank activity that only encourages persons called to "vote republican" or "vote democratic" in the upcoming election may be paid for with exempt contributions regardless of the number of candidates who are benefited by this message.

     (6)(a) "Internal organization expenditures" referenced in RCW 42.17.640 (14)(b) are expenditures for organization purposes, including legal and accounting services, rental and purchase of equipment and office space, utilities and telephones, postage and printing of newsletters for the organization's members or contributors or staff when engaged in organizational activities such as those previously listed, all without direct association with individual candidates.

     (b) "Fund-raising expenditures" referenced in RCW 42.17.640 (14)(b) are expenditures for fund-raising purposes, including facilities for fund-raisers, consumables furnished at the event and the cost of holding social events and party conventions, all without direct association with individual candidates.

     (c) If expenditures made pursuant to subsections (a) and (b) above are made in direct association with individual candidates, they shall not be paid with exempt contributions.

     (7) For purposes of RCW 42.17.640 (14)(a) and this section, activities that oppose one or more clearly identified candidates are presumed to promote the opponent(s) of the candidate(s) opposed.

[Statutory Authority: RCW 42.17.370(1). 02-12-007, § 390-17-060, filed 5/23/02, effective 6/23/02; 02-03-018, § 390-17-060, filed 1/4/02, effective 2/4/02; 96-05-001, § 390-17-060, filed 2/7/96, effective 3/9/96. Statutory Authority: RCW 42.17.370. 93-24-003, § 390-17-060, filed 11/18/93, effective 12/19/93.]

     (2) Contributions are subject to all applicable provisions of chapter 42.17 RCW and TITLE 390 WAC, including RCW 42.17.105(8) and 42.17.640.

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OTS-8674.2

AMENDATORY SECTION(Amending WSR 03-12-034, filed 5/29/03, effective 6/29/03)

WAC 390-18-010   Advertising, political advertising(( -- Identification of sponsor)), electioneering communications, and independent expenditures.   (1) For the purposes of chapter 42.17 RCW ((42.17.510)) and ((this rule, "sponsor" means the candidate, political committee or other person paying for the advertising. If a person acts as an agent for another or is reimbursed by another for the payment, the original source of the payment is the sponsor)) TITLE 390 WAC:

     (a) "Sponsor of an electioneering communication, independent expenditure or political advertising" is defined in RCW 42.17.020.

     (b) Unless the context clearly provides otherwise, "advertising" or "advertisement" means political advertising, electioneering communications, or independent expenditures that are for political advertising and/or electioneering communications subject to the provisions of chapter 42.17 RCW and as defined in RCW 42.17.020 or 42.17.100.

     (2) With advertising for which no payment is demanded or for which a cost is not readily ascertainable, the sponsor is the candidate, political committee or person who solicits or arranges for the advertising to be displayed or broadcast.

     (3) If more than one person sponsors specific advertising, the identity of each sponsor must be shown. However, if a person contributes in cash or in-kind to a candidate or political committee to assist in paying the cost of advertising, ((it is unnecessary to include that contributor's name as)) that person is not deemed a sponsor provided the contribution is reported in accordance with applicable provisions of chapter 42.17 RCW and TITLE 390 WAC.

     (4) Printed advertising shall clearly state, in an area set apart from any other printed matter, that it has been paid for by the sponsor (Example: (1) Paid for by the XYZ committee, mailing address, city, state, zip code; (2) Vote for John Doe, paid for by John Doe, mailing address, city, state, zip code). However, printed advertising undertaken as an independent expenditure ((as defined in RCW 42.17.020)) or electioneering communication shall comply with the "Notice to Voters" and, if relevant, the "Top Five Contributors" provisions of RCW 42.17.510 and provide this information in an area set apart from any other printed matter. Political committees((, other than a bona fide political party,)) that sponsor independent expenditure or electioneering communication printed advertising are required to provide the "Top Five Contributors" to that political committee pursuant to WAC 390-18-025; however, this requirement does not apply to bona fide political parties sponsoring independent expenditures.

     (5)(a) ((Political)) Advertising consisting of more than one page but intended to be presented as a single item (i.e. 3-page letter with return envelope) must identify the sponsor on the first page or fold of the advertising. Identification on an enclosed return envelope or the envelope in which the advertising is sent is not sufficient.

     (b) ((Political)) Advertising which is a collection of several items relating to more than one candidate or committee and distributed simultaneously must show the respective sponsor on the respective items.

     (6) The name of the sponsor of all radio or ((televison political)) television advertising shall be clearly spoken or identified as required in RCW 42.17.510. ((However,))

     (a) All radio, telephone and television ((political)) advertising undertaken as an independent expenditure as defined in RCW 42.17.020 shall comply with the "Notice to Voters" and, if relevant, the "Top Five Contributors" provisions of RCW 42.17.510 and this information shall be clearly spoken or identified as provided in RCW 42.17.510.

     (b) All radio and television advertising undertaken as an electioneering communication as defined in RCW 42.17.020 shall comply with the "Notice to Voters" and, if relevant, the "Top Five Contributors" provisions of RCW 42.17.510 and this information shall be clearly spoken or identified as provided in RCW 42.17.510.

     (c) Political committees((, other than a bona fide political party,)) that sponsor independent expenditure or electioneering communication radio and television ((political)) advertising are required to clearly speak or otherwise identify the "Top Five Contributors" to that political committee pursuant to WAC 390-18-025; however, this requirement does not apply to bona fide political parties sponsoring independent expenditures.

[Statutory Authority: RCW 42.17.370. 03-12-034, § 390-18-010, filed 5/29/03, effective 6/29/03. Statutory Authority: RCW 42.17.370(1). 00-22-055, § 390-18-010, filed 10/27/00, effective 11/27/00. Statutory Authority: RCW 42.17.370. 93-16-064, § 390-18-010, filed 7/30/93, effective 8/30/93. Statutory Authority: RCW 42.17.370(1). 85-15-020 (Order 85-03), § 390-18-010, filed 7/9/85.]

     (2) According to RCW 42.17.510, sponsors of electioneering communications identifying a candidate who has expressed a party or independent preference on the declaration of candidacy must clearly identify the candidate's political party or independent status in the advertising.

     (3) To assist sponsors in complying with this requirement, the commission shall publish a list of abbreviations or symbols that clearly identify political party affiliation or independent status. These abbreviations may be used by sponsors ((of political advertising)) to identify a candidate's political party.

[Statutory Authority: RCW 42.17.370(1). 99-12-067, § 390-18-020, filed 5/27/99, effective 6/27/99. Statutory Authority: RCW 42.17.370. 93-16-064, § 390-18-020, filed 7/30/93, effective 8/30/93. Statutory Authority: RCW 42.17.370(1). 85-15-020 (Order 85-03), § 390-18-020, filed 7/9/85.]

     (2)(a) For independent expenditure advertisements, the "top five contributors" identification requirement of RCW 42.17.510 applies to all political committees that make independent expenditures, including continuing political committees((, required to register and report under)) 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(((2))) 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 ((to support or oppose)) 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(1). 02-12-007, § 390-18-025, filed 5/23/02, effective 6/23/02.]

     (2) For independent expenditures identifying sponsors and top five contributors as required by RCW 42.17.510 a "medium that does not include a visual image" means radio or telephone transmissions.

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     (((2) Political tickers are text messages that scroll across a television screen during scheduled programming.))

[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.]

     (2) The term "reelect" may be used in ((a political)) an advertisement by a nonincumbent candidate who has previously been elected to the office being sought provided that in the same advertisement it is clearly stated that the candidate is not the incumbent.

     (3) The term "retain" in ((a political)) an advertisement represents that the candidate is the incumbent but does not imply that the candidate attained the office by election.

     (4) The term "return" in ((a political)) an advertisement represents that the candidate now holds, or has previously held, the office being sought, but does not represent that the office was attained by election.

     (5) Whenever the boundaries of a district or political subdivision are officially altered through redistricting, consolidation or other official procedures, the candidate holding an office in the affected district or political subdivision may, in ((a political)) an advertisement, use the term "reelect," "retain" or "return," as appropriate, if the candidate is seeking the same office in the revised district or political subdivision.

     (6) Stating the office sought (e.g., "mayor") by a candidate in a political advertisement without expressly stating the candidate is seeking election to the office (e.g., "for mayor"; "Elect Smith Mayor") represents that the candidate presently holds that office.

[Statutory Authority: RCW 42.17.370(1). 02-03-018, § 390-18-040, filed 1/4/02, effective 2/4/02. Statutory Authority: RCW 42.17.370. 92-12-037, § 390-18-040, filed 5/29/92, effective 6/29/92. Statutory Authority: RCW 42.17.370(1). 88-14-064 (Order 88-02), § 390-18-040, filed 7/1/88; 86-12-059 (Order 86-03), § 390-18-040, filed 6/3/86.]

     (2) No commercial advertiser shall be required to make available for public inspection information regarding ((political)) advertising prior to the time when the advertisement has initially received public distribution or broadcast.

     (3) The documents and books of account that must be maintained open for public inspection pursuant to RCW 42.17.110(1) are:

     (a) The name of the candidate or ballot measure supported or opposed;

     (b) The name and address of the person who sponsored the advertising;

     (c) The total cost of the advertising, how much of that amount has been paid, who made the payment, when it was paid, and what method of payment was used; and

     (d) Date(s) the commercial advertiser rendered service.

     (4) In addition to subsection (3) of this section and pursuant to RCW 42.17.110 (1)(b), the documents and books of account open for public inspection must include a description of the major work components or tasks, as specified in (a) through (f) of this subsection, that were required to provide the advertising services.

     (a) For printers, reproducers and other persons who provide commercial duplicating services: Quantity of items, item description, design, layout, typesetting, photography, printing, silk screening, binding.

     (b) For mailing services: Quantity of items mailed, binding, stuffing, labeling, list or directory services, postage or delivery.

     (c) For broadcast media: Time and number of spot advertisements. If the broadcaster provides additional services such as copy writing, talent, production, and tape reproduction, some type of record or notation evidencing the additional service must be available.

     (d) For billboard or sign companies: Number and location of signs, design, printing and art work, erection/removal costs.

     (e) For specialty or novelty commercial advertisers: Quantity of items provided, silk screening, design, printing and art work.

     (f) For newspapers and other print media: Amount of advertising space and dates of publication. If the advertiser provides additional services such as design or layout, some type of record evidencing such additional services must be available.

[Statutory Authority: RCW 42.17.370(1). 99-12-068, § 390-18-050, filed 5/27/99, effective 6/27/99. Statutory Authority: RCW 42.17.370. 93-04-072, § 390-18-050, filed 1/29/93, effective 3/1/93.]

     (2) For the purposes of RCW 42.17.020 (20)(c), an electioneering communication is reportable by the sponsor to the commission when the communication, alone or in combination:

     (a) Identifies the same candidate in one or more communications satisfying RCW 42.17.020 (20)(a) and (b) or commission rules;

     (b) Is made by the same sponsor of one or more of the communications;

     (c) When it, either alone, or in combination with one or more communications identifying the candidate by the same sponsor during the sixty days before an election, has a fair market or aggregate value of $5,000 or more; and

     (d) Is not a communication exempted from reporting under RCW 42.17.020(21) or commission rule.

     (3) When the electioneering communication or communications - including radio or television transmissions, mailings, billboards, newspapers and/or periodicals - reach the $5,000 threshold, the sponsor shall electronically report to the commission as required by RCW 42.17.565 within twenty-four hours of, or on the first working day after, the date the electioneering communication is first broadcast, transmitted, erected, distributed, or otherwise published.

     (4) Once the $5,000 threshold is reached, all subsequent electioneering communications by the sponsor identifying the same candidate are reportable as provided in RCW 42.17.565 and this rule.

     (5) When more than one sponsor pays for the electioneering communication, the entire fair market value of the communication is attributable to all sponsors. All sponsors of the same communication are responsible for reporting once the $5,000 threshold is met. A failure to report by one joint sponsor is not attributable to all joint sponsors of a specific communication or communications if the remaining sponsors have reported properly.

     (6) Consistent with WAC 390-16-060 and the requirements of PDC Form C-6, a prorated portion of independent expenditure and electioneering communications expenditures shall be attributed to each candidate or ballot proposition identified in the advertisement or communication. That proration shall be based on a reasonable, good faith estimate of the value of the portion of the advertisement or communication relating to each candidate or proposition identified.

     (7) Examples. The following is a nonexclusive list of examples of reportable activities for electioneering communications:

     (a) Single sponsor, single ad. Sponsor A pays for an electioneering communication identifying Candidate 1 and the communication has a fair market value of $5,000 or more. The electioneering communication is reportable by Sponsor A.

     (b) Single sponsor, multiple ads. Sponsor A pays for three electioneering communications identifying Candidate 1, and the communications have an aggregate fair market value of $5,000 ($1,000 for the first, $2,000 for the second, and $2,000 for the third). All three communications are reportable within 24 hours of the third communication being first broadcast, transmitted, erected, distributed or otherwise published. All subsequent electioneering communications by Sponsor A identifying Candidate 1 are reportable.

     (c) Multiple sponsors, multiple ads. Sponsors A and B jointly agree to pay for three electioneering communications identifying Candidate 1, and the communications have a total fair market value of $5,000 ($1,000 for the first, $2,000 for the second, and $2,000 for the third). All three communications become reportable when the third communication is sponsored. All subsequent electioneering communications by Sponsors A and B identifying Candidate 1 are reportable.

     (d) Multiple sponsors, multiple ads. Sponsors A and B have separately paid for an electioneering communication identifying Candidate 1, and each communication has a fair market value of $4,000. Those communications are not reportable because they have not yet reached the $5,000 threshold. However, Sponsors A and B then jointly agree to pay for another electioneering communication identifying Candidate 1, and the communication has a fair market value of $1,000. Now the $5,000 reporting threshold has been reached and within 24 hours of the jointly sponsored communication being published, that communication and prior separately sponsored communications identifying Candidate 1 are reportable by Sponsors A and B. All subsequent electioneering communications by Sponsors A and B identifying Candidate 1 are reportable.

     (e) Multiple sponsors, multiple ads. Sponsors A, B and C jointly plan and agree to pay for a series of electioneering communications identifying Candidate 1. They decide that Sponsor A will pay for the first ad, Sponsor B will pay for the second ad, and Sponsor C will pay for the third ad. Each ad has a fair market value of $4,999. Because A, B and C are acting in concert as one sponsoring entity for the electioneering communications, upon the publishing of the second ad the $5,000 threshold is met and A, B and C have an obligation to report the electioneering communications within 24 hours. Likewise, A, B and C have an obligation to report the third electioneering communication within 24 hours of its publication. All subsequent electioneering communications by Sponsors A, B and/or C identifying Candidate 1 are reportable.

     (f) Prorating an ad. If 80% of one or more electioneering communications with a fair market value of $7,000 relates to a message or messages about Candidate 1, and the remaining 20% relates equally to two ballot propositions, the communication is reportable by the sponsor or sponsors because the $5,000 threshold has been met. All subsequent electioneering communications identifying Candidate 1 are reportable.

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