HOUSE BILL NO. 607
INTRODUCED BY T. FACEY
A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING CANDIDATES FOR ELECTION TO CERTAIN STATE OFFICES THE ALTERNATIVE OF A PUBLICLY FINANCED ELECTION CAMPAIGN AND PROVIDING FOR PUBLIC FUNDING THROUGH THE COMMISSIONER OF POLITICAL PRACTICES; PROVIDING LEGISLATIVE FINDINGS; PROVIDING DEFINITIONS; PROVIDING REQUIREMENTS FOR RECEIPT OF PUBLIC MONEY; REQUIRING CONTINUING COMPLIANCE BY CANDIDATES; SPECIFYING THE TIMING AND AMOUNT OF PAYMENTS TO CANDIDATES; SPECIFYING PURPOSES FOR WHICH PAYMENTS OF PUBLIC MONEY TO CANDIDATES MAY BE SPENT; REQUIRING DISCLOSURE OF CERTAIN ELECTION CAMPAIGN SPENDING; REQUIRING DISCLOSURE OF AMOUNTS SPENT FOR ISSUE ADVERTISING AND REQUIRING PAYMENTS TO CERTAIN CANDIDATES TO RESPOND TO THAT ADVERTISING; CREATING THE PUBLIC MONEY ELECTION CAMPAIGN FUND AND SPECIFYING THE CONTENT AND USE OF THE FUND; PROVIDING FOR ADMINISTRATION OF PAYMENTS FROM THE PUBLIC MONEY FUND TO CERTAIN CANDIDATES; SPECIFYING TREATMENT OF POLITICAL PARTY CONTRIBUTIONS AND EXPENDITURES; CREATING A PRIVATE RIGHT OF ACTION; REQUIRING RULEMAKING; CREATING OFFENSES AND PROVIDING PENALTIES; CREATING INDIVIDUAL AND CORPORATE TAX CHECKOFFS AND CREDITS AND AUTHORIZING LOANS BY THE BOARD OF INVESTMENTS TO PROVIDE MONEY FOR THE PUBLIC MONEY FUND; PROVIDING A FUND TRANSFER AND A STATUTORY APPROPRIATION; AMENDING SECTIONS 13-1-101, AND 17-7-502, MCA; AND PROVIDING EFFECTIVE DATES, A RETROACTIVE APPLICABILITY DATE, AND A TERMINATION DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 13-1-101, MCA, is amended to read:
"13-1-101. Definitions. As used in this title, except as provided in [sections 2 through 27] and unless the context clearly indicates otherwise, the following definitions apply:
(1) "Active elector" means a qualified elector whose name is on the active list.
(2) "Active list" means a list of active electors maintained by an election administrator pursuant to 13-2-219.
(3) "Anything of value" means any goods that have a certain utility to the recipient that is real and that is ordinarily not given away free but is purchased.
(4) "Application for voter registration" means a completed voter registration card submitted to the election administrator and subject to confirmation, as provided in 13-2-207.
(5) "Candidate" means:
(a) an individual who has filed a declaration or petition for nomination, acceptance of nomination or appointment as a candidate for public office as required by law;
(b) for the purposes of chapter 35, 36, or 37, an individual who has solicited or received and retained contributions, made expenditures, or given consent to an individual, organization, political party, or committee to solicit or receive and retain contributions or make expenditures on the individual's behalf to secure nomination or election to any office at any time, whether or not the office for which the individual will seek nomination or election is known when the:
(i) solicitation is made;
(ii) contribution is received and retained; or
(iii) expenditure is made; and
(c) an officeholder who is the subject of a recall election.
(6) (a) "Contribution" means:
(i) an advance, gift, loan, conveyance, deposit, payment, or distribution of money or anything of value to influence an election;
(ii) a transfer of funds between political committees;
(iii) the payment by a person other than a candidate or political committee of compensation for the personal services of another person that are rendered to a candidate or political committee.
(b) "Contribution" does not mean:
(i) services provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate or political committee or meals and lodging provided by individuals in their private residence for a candidate or other individual;
(ii) the cost of any bona fide news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication of general circulation;
(iii) the cost of any communication by any membership organization or corporation to its members or stockholders or employees, as long as the organization is not a primary political committee; or
(iv) filing fees paid by the candidate.
(7) "Election" means a general, regular, special, or primary election held pursuant to the requirements of state law, regardless of the time or purpose.
(8) "Election administrator" means the county clerk and recorder or the individual designated by a county governing body to be responsible for all election administration duties, except that with regard to school elections, the term means the school district clerk.
(9) "Elector" means an individual qualified and registered to vote under state law.
(10) (a) "Expenditure" means a purchase, payment, distribution, loan, advance, promise, pledge, or gift of money or anything of value made for the purpose of influencing the results of an election.
(b) "Expenditure" does not mean:
(i) services, food, or lodging provided in a manner that they are not contributions under subsection (6);
(ii) payments by a candidate for a filing fee or for personal travel expenses, food, clothing, lodging, or personal necessities for the candidate and the candidate's family;
(iii) the cost of any bona fide news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication of general circulation; or
(iv) the cost of any communication by any membership organization or corporation to its members or stockholders or employees, as long as the organization is not a primary political committee.
(11) "Federal election" means a general or primary election in which an elector may vote for individuals for the office of president of the United States or for the United States congress.
(12) "General election" or "regular election" means an election held for the election of public officers throughout the state at times specified by law, including elections for officers of political subdivisions when the time of the election is set on the same date for all similar political subdivisions in the state. For ballot issues required by Article III, section 6, or Article XIV, section 8, of the Montana constitution to be submitted by the legislature to the electors at a general election, "general election" means an election held at the time provided in 13-1-104(1). For ballot issues required by Article XIV, section 9, of the Montana constitution to be submitted as a constitutional initiative at a regular election, regular election means an election held at the time provided in 13-1-104(1).
(13) "Inactive elector" means an individual whose name is placed on an inactive list.
(14) "Inactive list" means a list of inactive electors maintained by an election administrator pursuant to 13-2-219.
(15) "Individual" means a human being.
(16) "Issue" or "ballot issue" means a proposal submitted to the people at an election for their approval or rejection, including but not limited to initiatives, referenda, proposed constitutional amendments, recall questions, school levy questions, bond issue questions, or a ballot question. For the purposes of chapters 35, 36, or 37, an issue becomes a "ballot issue" upon certification by the proper official that the legal procedure necessary for its qualification and placement upon the ballot has been completed, except that a statewide issue becomes an "issue" upon approval by the secretary of state of the form of the petition or referral.
(17) "Person" means an individual, corporation, association, firm, partnership, cooperative, committee, club, union, or other organization or group of individuals or a candidate as defined in subsection (5).
(18) "Political committee" means a combination of two or more individuals or a person other than an individual who makes a contribution or expenditure:
(a) to support or oppose a candidate or a committee organized to support or oppose a candidate or a petition for nomination; or
(b) to support or oppose a ballot issue or a committee organized to support or oppose a ballot issue; or
(c) as an earmarked contribution.
(19) "Political subdivision" means a county, consolidated municipal-county government, municipality, special district, or any other unit of government, except school districts, having authority to hold an election for officers or on a ballot issue.
(20) "Primary" or "primary election" means an election held throughout the state to nominate candidates for public office at times specified by law, including nominations of candidates for offices of political subdivisions when the time for nominations is set on the same date for all similar subdivisions in the state.
(21) "Public office" means a state, county, municipal, school, or other district office that is filled by the people at an election.
(22) "Registrar" means the county election administrator and any regularly appointed deputy or assistant election administrator.
(23) "Special election" means an election other than a statutorily scheduled primary or general election held at any time for any purpose provided by law. It may be held in conjunction with a statutorily scheduled election.
(24) "Voting machine or device" means any equipment used to record, tabulate, or in any manner process the vote of an elector."
NEW SECTION. Section 2. Short title. [Sections 2 through 27] may be cited as the "Public Financing of Election Campaigns Act".
NEW SECTION. Section 3. Findings and declaration. (1) The legislature finds that the current system of privately financed campaigns for election to statewide and legislative offices undermines democracy in the state in that the system:
(a) violates the democratic principle of "one person, one vote" and diminishes the meaning of the right to vote by allowing large contributions to have a deleterious influence on the political process;
(b) violates the rights of all citizens to equal and meaningful participation in the democratic process;
(c) diminishes the free speech rights of nonwealthy voters and candidates whose voices are drowned out by those who can afford to monopolize the arena of paid political communications;
(d) undermines the first amendment right of voters and candidates to be heard in the political process, undermines the first amendment right of voters to hear all candidates' speech, and undermines the core first amendment value of open and robust debate in the political process;
(e) fuels the public perception of corruption and undermines public confidence in the democratic process and democratic institutions;
(f) diminishes elected officials' accountability to their constituents by compelling them to be disproportionally accountable to the major contributors who finance their election campaigns;
(g) creates a danger of actual corruption by encouraging elected officials to take money from private interests that are directly affected by governmental actions;
(h) drives up the cost of election campaigns, making it difficult for qualified candidates without access to large contributors or personal fortunes to mount competitive campaigns;
(i) disadvantages challengers, because large campaign contributors tend to give their money to incumbents, thus causing elections to be less competitive;
(j) inhibits communication with the electorate by candidates without access to large sums of campaign money; and
(k) burdens candidates with the incessant rigors of fundraising and thus decreases the time available to carry out their public responsibilities.
(2) The legislature finds that providing a voluntary public finance system for all primary and general elections would enhance democracy in Montana in that it would:
(a) eliminate the deleterious influence of large contributions on the political process, remove access to wealth as a major determinant of a citizen's influence within the political process, and restore meaning to the principle of "one person, one vote";
(b) restore the rights of all citizens to equal and meaningful participation in the democratic process;
(c) restore the free speech rights of nonwealthy candidates and voters by providing candidates with equal resources with which to communicate with the voters;
(d) help restore the first amendment right of voters and candidates to be heard in the political process, help restore the first amendment right of voters to hear all candidates' speech, and help restore the core first amendment value of open and robust debate in the political process;
(e) diminish the public perception of corruption and strengthen public confidence in the democratic process and democratic institutions;
(f) increase the accountability of elected officials to the constituents who elect them;
(g) eliminate the danger of actual corruption caused by the private financing of the election campaigns of public officials, thus restoring public confidence in the fairness of the electoral and legislative processes;
(h) halt and reverse the escalating cost of elections;
(i) create a more level playing field for incumbents and challengers, create genuine opportunities for qualified residents of Montana to run for statewide and legislative office, and encourage more competitive elections;
(j) facilitate communication with the electorate by candidates, regardless of their access to large sums of campaign money; and
(k) free candidates from the incessant rigors of raising money and allow them more time to carry out their official duties.
(3) The legislature further finds that the unique factual circumstances in Montana require that the provisions of [sections 2 through 27] be enacted to promote the compelling state interests listed in subsections (1) and (2). The provisions of [sections 2 through 27] are designed to create a rough proportionality between the benefits and restrictions that apply to participating candidates. However, it should be clear that [sections 2 through 27] are not entirely neutral. Participating candidates are deliberately favored to further the compelling state interest of encouraging participation in the public financing scheme.
NEW SECTION. Section 4. Definitions. As used in [sections 2 through 27], unless the context indicates otherwise, the following definitions apply:
(1) "Candidate" means a party candidate or an independent candidate.
(2) "Election" means an election, as defined in 13-1-101, of an individual to:
(a) the office of governor or lieutenant governor;
(b) the office of secretary of state;
(c) the office of attorney general;
(d) the office of superintendent of public instruction;
(e) the office of state auditor;
(f) the Montana senate; and
(g) the Montana house of representatives.
(3) "Election cycle" means the period of time beginning the day after the general election until the day of the next general election.
(4) "Excess campaign contribution" means the amount of money received by a nonparticipating candidate as a campaign contribution in excess of the public money funding available to a participating candidate running for the same office.
(5) "General election campaign period" means the period of time beginning the day after the primary election and ending on the day of the general election.
(6) "Immediate family" means the candidate's spouse.
(7) "Independent candidate" means a candidate who does not represent a political party that has been granted ballot status and holds a primary election to choose its nominee for the general election.
(8) "Mass mailing" means a mailing of 200 or more identical or nearly identical pieces of mail sent by a candidate or an elected official to the voters, residents, or postal boxholders within the jurisdiction that a candidate seeks to represent. A mass mailing does not include:
(a) a mailing made in direct response to communications from individuals or groups to whom the matter is mailed;
(b) a mailing to federal, state, or local government officials; and
(c) releases to the communications media.
(9) "Nonparticipating candidate" means a candidate who is on the ballot but has not been certified by the commissioner pursuant to [section 11] as a participating candidate.
(10) "Participating candidate" means a candidate who has been certified as a participating candidate by the commissioner pursuant to [section 11] and is therefore eligible to receive public money funding.
(11) "Participating independent candidate" means a candidate who is both a participating candidate and an independent candidate.
(12) "Participating party candidate" means a candidate who is both a participating candidate and a party candidate.
(13) "Party candidate" means a candidate who represents a political party that has been granted ballot status and holds a primary election to choose its nominee for the general election.
(14) "Primary election campaign period" means the period beginning 90 days before the primary election and ending on the day of the primary election.
(15) "Public money election campaign fund", "public money fund", or "fund" mean the fund created in [section 18].
(16) "Public money funding" means money paid or to be paid by the commissioner from the public money fund to a participating candidate.
(17) "Public money qualifying period" means the period during which candidates are permitted to collect qualifying contributions in order to qualify for public money funding. The period begins 90 days before the beginning of the primary election campaign period and ends 30 days before the primary election.
(18) "Qualifying contribution" means a contribution meeting the requirements of [section 5(1)] given to a candidate for election.
NEW SECTION. Section 5. Requirements for qualifying contributions. (1) To be considered a qualifying contribution, a contribution:
(a) may be made only by a registered voter who resides within the candidate's electoral district, in the case of a legislative election, or within the state, in the case of a statewide election;
(b) must be of $5;
(c) must be received during the public money qualifying period by a candidate seeking to become a participating candidate;
(d) may be made only by cash, check, or money order;
(e) must be acknowledged by a receipt given to the contributor, with a copy of the receipt kept by the candidate and a copy sent to the commissioner. The receipt must include the contributor's signature, printed name, home address, and telephone number and the name of the candidate on whose behalf the contribution is made. The receipt must indicate, by the contributor's signature, that:
(i) the contributor fully understands that the purpose of the contribution is to help the candidate qualify for public money funding; and
(ii) the contribution is made without coercion or reimbursement by volunteers who receive no reimbursement.
(2) The receipt required by subsection (1)(e) and the contribution must be submitted to the commissioner according to a schedule and procedure to be determined by the commissioner. A contribution submitted as a qualifying contribution that does not include a signed and completed receipt may not be counted as a qualifying contribution.
NEW SECTION. Section 6. Eligibility of party candidate for public money funding. (1) A party candidate qualifies as a participating candidate for the primary election campaign period if the party candidate:
(a) files a declaration with the commissioner that the party candidate has complied and will comply with all of the requirements of [sections 2 through 27], including the requirement that during the public money qualifying period, the party candidate has not and will not accept or spend private contributions from any source other than public money qualifying contributions, unless [section 7] applies; and
(b) receives at least the following number of qualifying contributions for the following offices before the close of the public money qualifying period:
(i) 2,500 qualifying contributions for candidates running for the offices of governor and lieutenant governor;
(ii) 750 qualifying contributions for a candidate running for the office of secretary of state;
(iii) 750 qualifying contributions for a candidate running for the office of attorney general;
(iv) 750 qualifying contributions for a candidate running for the office of superintendent of public instruction;
(v) 750 qualifying contributions for a candidate running for the office of state auditor;
(vi) 120 qualifying contributions for a candidate running for the Montana senate; and
(vii) 60 qualifying contributions for a candidate running for the Montana house of representatives.
(2) A party candidate qualifies as a participating candidate for the general election campaign period if the party candidate:
(a) meets all of the applicable requirements and files a declaration with the commissioner that the party candidate has fulfilled and will fulfill all of the requirements of a participating candidate, as provided in [sections 2 through 27], and the rules of the commissioner; and
(b) as a participating candidate during the primary election campaign period, had the highest number of votes of the candidates contesting the primary election from the candidate's respective party and won the party's nomination.
NEW SECTION. Section 7. Eligibility rule for transition from current election cycle. During the election cycle in effect on [the effective date of this section], a candidate may be certified as a participating candidate notwithstanding the acceptance of contributions or making of expenditures from private funds before that date that would, except for this section, disqualify the candidate as a participating candidate if any private funds accepted but not expended before [the effective date of this section] are returned to the contributor or are submitted to the commissioner for deposit in the public money fund.
NEW SECTION. Section 8. Continuing obligation to comply. A participating candidate who accepts public money funding during the primary election campaign period shall comply with the requirements of [sections 2 through 27] through the general election campaign period whether the participating candidate accepts public money funding during the general election campaign period or not.
NEW SECTION. Section 9. Contributions and expenditures. (1) A participating candidate may not, during the primary and general election campaign periods, accept a contribution from a source other than the public money fund or a political party in accordance with [section 21].
(2) A participating candidate who receives a qualifying contribution that is not from the person listed on the receipt required by [section 5] shall pay the qualifying contribution to the commissioner and is liable for other penalties provided by [sections 2 through 27].
(3) During the primary and general election campaign periods, a participating candidate may pay the participating candidate's campaign expenditures, except petty cash expenditures paid from a fund created in accordance with 13-37-215, by means of the public money debit card issued pursuant to [section 20].
(4) An individual applying for certification as a participating candidate shall furnish complete campaign records, including all records of qualifying contributions, to the commissioner at the time of application. Participating candidates shall furnish any of those records to the commissioner upon the request of the commissioner. Individuals applying for certification and participating candidates shall cooperate with the commissioner in the commissioner's performance of an audit or other investigation.
NEW SECTION. Section 10. Contribution and use of personal funds by candidate. The personal funds of a candidate seeking certification as a participating candidate may not be used to meet the qualifying contribution requirements of [section 6] except for one $5 contribution from the candidate and one $5 contribution from the immediate family if the candidate, in the case of a contribution by the candidate, and the immediate family, in the case of a contribution by the immediate family, are registered voters who reside in the electoral district for which the candidate seeks election, in the case of an election to a legislative office, or in the state, in the case of an election to a statewide office.
NEW SECTION. Section 11. Application for certification -- certification by commissioner -- judicial review. (1) A candidate's application for certification as a participating candidate must be signed under oath by the candidate and the candidate's campaign treasurer.
(2) An application for certification as a participating candidate must be submitted to the commissioner and must include:
(a) evidence of the number of qualifying contributions received by the candidate; and
(b) a declaration that the candidate has complied and will comply with all the requirements for eligibility for certification as a participating candidate.
(3) No more than 5 working days after a candidate applies for public money funding, the commissioner shall determine whether the candidate is or is not eligible to receive public money funding. If the commissioner determines that the candidate is eligible, the commissioner shall certify the candidate as a participating candidate and make money from the public money fund available to the participating candidate in accordance with [section 12]. If the election commissioner determines that the candidate is not eligible to receive public money funding, the commissioner shall inform the candidate in writing of that fact.
(4) The commissioner shall revoke the certification of a participating candidate who the commissioner later determines was not eligible for certification because of a violation of [sections 2 through 27] or the rules of the commissioner. If a participating candidate's certification of eligibility is revoked, the candidate shall repay to the commissioner all public money funding paid to the candidate. Money repaid to the commissioner must be deposited in the public money fund.
(5) A decision by the commissioner whether to certify a candidate as a participating candidate is subject to judicial review in the manner provided by [section 23].
NEW SECTION. Section 12. Funding provided to participating candidates -- schedule of payments and amounts of public money funding. (1) A candidate certified as a participating candidate must receive, at the times provided for in subsection (2), public money funding in the amounts provided for in subsection (3). Public money funding may be used by a participating candidate only in the manner and for the purposes provided for in [section 13].
(2) The commissioner shall pay a participating party candidate or participating independent candidate public money funding for a primary election campaign period, in the amount provided in subsection (3), on the day that the commissioner certifies the candidate as a participating candidate. The commissioner shall pay a participating party candidate or participating independent candidate public money funding for a general election campaign period, in the amount provided in subsection (3), within 48 hours after certification of the primary election results.
(3) The commissioner shall pay the following amounts from the public money fund:
(a) to participating party candidates:
(i) in a contested primary election:
(A) $250,000 for candidates running for the offices of governor and lieutenant governor;
(B) $50,000 for a candidate running for the office of attorney general;
(C) $50,000 for a candidate running for the office of superintendent of public instruction;
(D) $50,000 for a candidate running for the office of state auditor;
(E) $7,500 for a candidate running for the Montana senate; and
(F) $5,000 for a candidate running for the Montana house of representatives;
(ii) in an uncontested primary election, to each participating party candidate listed in subsection (3)(a)(i):
(A) 25% of the amount specified in subsection (3)(a)(i)(A) to the candidates listed in that subsection;
(B) 40% of the amount specified in subsections (3)(a)(i)(B) through (3)(a)(i)(D) to the candidates listed in those subsections; and
(C) 20% of the amount specified in subsections (3)(a)(i)(E) and (3)(a)(i)(F) to the candidates listed in those subsections;
(iii) in a contested general election, if the participating party candidate or all of the candidates of that participating party candidate's party combined received at least 20% of the total number of votes cast for all candidates seeking that office in the just-held primary election or in the previous general election, the participating party candidate must receive the full amount of public money funding for the general election, which is:
(A) $1 million for candidates running for the offices of governor and lieutenant governor;
(B) $150,000 for a candidate running for the office of attorney general;
(C) $150,000 for a candidate running for the office of superintendent of public instruction;
(D) $150,000 for a candidate running for the office of state auditor;
(E) $15,000 for a candidate running for the Montana senate; and
(F) $10,000 for a candidate running for the Montana house of representatives;
(iv) in a contested general election, if the participating party candidate or all of the candidates of that participating party candidate's party combined received at least 5% but less than 20% of the total number of votes cast for all candidates seeking that office in the just-held primary election or in the previous general election, the participating party candidate must receive a portion of the full amount of public money funding based on the ratio that the candidates' vote percentage is to 20%; and
(v) in an uncontested general election, to each participating party candidate listed in subsection (3)(a)(i), 10% of the amount provided for a participating party candidate for the same office in a contested general election;
(b) to participating independent candidates:
(i) in a primary election, 25% of the amount received by a party candidate for the same office in a contested primary election; and
(ii) in a general election, the amount received by a party candidate for the same office in a general election.
(4) After the first election cycle in which the commissioner pays public money funding to participating candidates, the commissioner shall increase all public money funding to be paid in the following election cycle by an amount equal to the rate of inflation or the cost-of-living increase, whichever is more, or projected increase, between the previous general election and the next general election, as determined by the rules of the commissioner.
NEW SECTION. Section 13. Purposes for which public money funding may be used -- return of unspent funds. (1) Public money funding may be used by a participating candidate only to pay for campaign-related expenses incurred in the course of a primary or general election campaign.
(2) Public money funding may not be expended in violation of law or for personal, family, or business loans, expenditures, or debts.
(3) A participating candidate who does not expend all public money funding paid to the participating candidate shall return the unspent portion to the commissioner, who shall deposit the money into the public money election campaign fund.
NEW SECTION. Section 14. Disclosure of excess campaign contributions by nonparticipating candidates. (1) If a nonparticipating candidate's total campaign contributions received at any time exceed the amount of public money funding paid to the nonparticipating candidate's participating candidate opponent, the nonparticipating candidate shall declare to the commissioner within 48 hours of receipt every excess campaign contribution, which, taking into account all previous contributions since excess campaign contributions were previously reported to the commissioner, is more than the following amounts for the following candidates:
(a) for the offices of governor and lieutenant governor, $5,000;
(b) for any of the offices listed in [section 12(3)(a)(iii)(B) through (3)(a)(iii)(D)], $1,500;
(c) for a candidate for the Montana senate, $500; and
(d) for a candidate for the Montana house of representatives, $250.
(2) During the last 20 days before the end of the relevant campaign period, a nonparticipating candidate shall declare to the commissioner each excess campaign contribution or total excess campaign contributions over one-half of the amount provided in subsections (1)(a) through (1)(d) within 24 hours of receipt.
(3) The commissioner may make a determination as to whether an excess campaign contribution has been made to a nonparticipating candidate.
(4) Upon receiving an excess campaign contribution declaration from a nonparticipating candidate, or making a determination that a nonparticipating candidate has received more in campaign contributions than a participating candidate, the commissioner shall immediately pay additional public money funding to the opposing participating candidate equal to the excess campaign contributions received by the nonparticipating candidate, subject to the limitations provided in [section 16(5)].
NEW SECTION. Section 15. Definition of independent expenditures. As used in [section 16] and in this section, unless the context indicates otherwise, the following definitions apply:
(1) "Candidate's authorized committee" means a combination of two or more persons that, with the candidate's full knowledge and approval and on behalf of a candidate, organizes to support that candidate or to oppose a different candidate.
(2) "Coordination" means a payment made for a communication or anything of value that is given for the purpose of influencing the outcome of an election and that is made by a person:
(a) in cooperation, consultation, or concert with, at the request or suggestion of, or pursuant to a particular understanding with a candidate, a candidate's authorized committee, or an agent acting on behalf of a candidate or a candidate's authorized committee;
(b) for the dissemination, distribution, or republication, in whole or in part, of a broadcast or a written, graphic, or other form of campaign material prepared by a candidate, a candidate's authorized committee, or an agent of a candidate or a candidate's authorized committee;
(c) based on specific information about the candidate's plans, projects, or needs provided to the person making the payment by the candidate or the candidate's agent who provides the information with a view toward having the payment made;
(d) if, in the same election cycle in which the payment is made, the person making the payment is serving or has served as a member, employee, fundraiser, or agent of the candidate's authorized committee in an executive or policymaking position;
(e) if the person making the payment has served in any formal policy or advisory position with the candidate's campaign or has participated in strategic or policymaking discussions with the candidate's campaign relating to the candidate's pursuit of nomination for election, or election, in the same election cycle as the election cycle in which the payment is made; or
(f) if the person making the payment retains the professional services of an individual or person who, in a nonministerial capacity, has provided or is providing campaign-related services in the same election cycle to a candidate who is pursuing the same nomination or election as any of the candidates to whom the communication refers.
(3) (a) "Express advocacy" means a communication that is made through a broadcast medium, newspaper, magazine, billboard, direct mail, or similar type of general public communication or political advertising that:
(i) advocates the election or defeat of a clearly identified candidate, including any communication that contains a phrase such as "vote for", "re-elect", "support", "cast your ballot for", "(name of candidate) for (name of office)", "(name of candidate) in (year)", "vote against", "defeat", "reject", etc.; or
(ii) contains campaign slogans or individual words that in context can have no reasonable meaning other than to recommend the election or defeat of one or more clearly identified candidates.
(b) the term does not mean:
(i) a news story, commentary, or editorial by a broadcasting station, newspaper, magazine, or other publication, but only if that entity is not owned by or affiliated with any candidate or candidate's authorized committee; or
(ii) a regularly published newsletter or other communication for which circulation is limited to an organization's members, employees, shareholders, and other affiliated individuals and those who request or purchase the communication.
(4) "Independent expenditure" means an expenditure made by a person other than a candidate or a candidate's authorized committee that:
(a) is made for a communication that contains express advocacy; and
(b) is made without the participation or cooperation of and without coordination with a candidate or candidate's authorized committee.
(5) "Professional services" includes services in support of a candidate's pursuit of nomination for election, or election, such as polling, media advice, mass mailing, fundraising, or campaign research.
NEW SECTION. Section 16. Independent expenditures -- definition and payment of additional public money funding. (1) A person who makes or obligates to make an independent expenditure during a primary or general election campaign period that, when considered with other independent expenditures made by that person not reported to the commissioner since a previous report, exceeds $1,000 shall, within 48 hours of making the expenditure or obligation, report each of those independent expenditures to the commissioner.
(2) The report to the commissioner required by subsection (1) must include a sworn statement, by the person making or obligating the independent expenditure, identifying the candidate whom the independent expenditure is intended to help elect or defeat and affirming that the expenditure is totally independent and involves no cooperation or coordination with a candidate, a candidate's authorized committee, or a political party.
(3) A person who makes or obligates to make an independent expenditure during the last 20 days before the end of the relevant campaign period that, when considered with other independent expenditures made by that person during the same period since the previous report to the commissioner, exceeds $500 shall, within 24 hours of making the expenditure, report each expenditure to the commissioner.
(4) Upon receiving a report that an independent expenditure has been made or obligated to be made, the commissioner shall immediately pay additional public money funding, equal in amount to the amount of the independent expenditure, to all participating candidates whom the independent expenditure is intended to oppose or defeat, as reported pursuant to subsections (2) and (3).
(5) The maximum aggregate amount of additional funding that a participating candidate may receive to match independent expenditures or excess campaign contributions of nonparticipating candidates, or both, in an election is 200% of the total amount of public money funding paid by the commissioner to a participating candidate in that election.
(6) An individual or organization may file a complaint with the commissioner if the individual or organization believes that a statement made for the purposes of satisfying subsection (2) is false. The commissioner shall make a prompt determination of a complaint and dispose of the matter as provided in [section 22].
NEW SECTION. Section 17. Issue advertisements -- payment of additional public money. (1) Not later than 48 hours after making or obligating to make an expenditure to purchase an issue advertisement, the person who makes or obligates to make the expenditure shall file a report with the commissioner, containing the following information:
(a) the amount of the expenditure;
(b) the name and address of the person making the expenditure; and
(c) the purpose of the issue advertisement.
(2) Upon receiving a report that an issue advertisement has been made or obligated to be made and upon determination that the advertisement can reasonably be interpreted as having the effect of promoting the defeat of a participating candidate or the election of that participating candidate's opponent, the commissioner shall immediately pay to that participating candidate additional public money funding, equal in amount to the cost of the issue advertisement.
(3) As used in this section, "issue advertisement" means a communication through a broadcasting station, newspaper, magazine, outdoor advertising facility, mass mailing, or other type of general public political advertising:
(a) the purchase of which is not an independent expenditure or a contribution;
(b) that costs, in the aggregate, $1,000 or more;
(c) that contains the name or likeness of one or more candidates;
(d) that is communicated during a primary or general election period; and
(e) that recommends a position on a political issue.
NEW SECTION. Section 18. Public money election campaign fund created -- nature and purpose of fund. (1) There is an account in the special revenue fund, established in 17-2-102, to be known as the public money election campaign fund.
(2) Revenue derived from the sources specified in [section 19] must be deposited in the account as provided in that section. Interest or other income earned on the money in the account accrues to the account.
(3) Money in the account is statutorily appropriated, as provided in 17-7-502, to the commissioner and may be used by the commissioner only for the administration of [sections 2 through 27], including for public money funding payments to participating candidates as provided for in [sections 2 through 27].
NEW SECTION. Section 19. Sources of revenue. (1) Money appropriated by the legislature for the purposes of [sections 2 through 27] must be deposited in the public money election campaign fund.
(2) Other sources of revenue that must be deposited in the fund include:
(a) qualifying contributions paid by candidates seeking certification as participating candidates pursuant to [section 11] and any qualifying contributions collected by a candidate in excess of the number necessary for certification as a participating candidate;
(b) money distributed to a participating candidate who does not remain a candidate until the primary or general election for which the money was paid by the commissioner and the money from the fund that remains unused by a participating candidate following the date of the primary or general election for which that money was paid;
(c) fines levied by the commissioner against candidates for violation of [sections 2 through 27];
(d) money resulting from the voluntary tax checkoffs provided for in [sections 28 and 30] and other donations to the fund;
(e) interest or other income generated by money in the fund;
(f) loans received from the board of investments pursuant to [section 27]; and
(g) other sources of revenue determined necessary by the legislature.
NEW SECTION. Section 20. Administration and payment of money from fund -- public money debit card. (1) Upon certification of a candidate as a participating candidate pursuant to [section 11], the commissioner shall issue to a participating candidate a line of credit evidenced by a public money debit card. The card must enable a participating candidate to draw upon a line of credit to be paid from the public money fund up to the maximum of the amount for which the card is issued.
(2) A participating candidate or other individual authorized by the participating candidate or the participating candidate's campaign treasurer to make or obligate expenditures on behalf of the participating candidate or the participating candidate's campaign may not, except as provided in this section, use another form of payment, including cash, check, or money order, other than the public money debit card, to pay for those expenditures or incur obligations for expenditures.
(3) Cash amounts of $100 or less a day may be drawn on the public money debit card and used to pay expenses of no more than $25 each. Records of all expenditures for which the debit card is used must be maintained and reported to the commissioner at the time and in the manner provided by the rules of the commissioner.
NEW SECTION. Section 21. Political party contributions and expenditures. (1) Participating candidates may accept monetary or in-kind contributions from political parties if the aggregate amount of the contributions from all political parties or their committees does not exceed 5% of the maximum public money funding amount provided for that office.
(2) In-kind contributions made during a general election campaign period on behalf of a group of the party's candidates are not considered an improper party contribution and do not count against the 5% limit provided in subsection (1) if the group includes at least 51% of the candidates whose names will appear on the general election ballot in the political subdivision represented by the party committee making the in-kind contributions.
(3) A contribution made to, and an expenditure made by, a political party during primary and general election campaign periods must be reported to the commissioner for the same purpose and in the same manner as a contribution made to or an expenditure made by a candidate.
(4) [Sections 2 through 27] do not prevent political party funds from being used for any of the following purposes:
(a) general operating expenses of the party;
(b) conventions;
(c) nominating and endorsing candidates;
(d) identifying, researching, and developing the party's positions on issues;
(e) party platform activities;
(f) noncandidate-specific voter registration;
(g) noncandidate-specific get-out-the-vote drives;
(h) travel expenses for noncandidate party leaders and staff;
(i) other noncandidate-specific party building activities; and
(j) sharing the party's voter identification file.
NEW SECTION. Section 22. General powers and duties of commissioner. (1) The powers provided in this section are powers that may be exercised by the commissioner in addition to powers granted by other laws.
(2) After every primary or general election, the commissioner may conduct random audits and investigations to ensure compliance with [sections 2 through 27].
(3) The subjects of audits and investigations must be selected by the commissioner on the basis of impartial criteria established by the commissioner.
(4) The commissioner may investigate anonymous complaints. Complainants may receive whistle blower protection pursuant to rules adopted by the commissioner.
(5) The commissioner may seek an injunction if:
(a) there is a substantial likelihood that a violation of [sections 2 through 27] or the rules of the commissioner is occurring or is about to occur;
(b) the commissioner's failure to act expeditiously will result in irreparable harm to a party affected by the violation or potential violation;
(c) expeditious action will not cause undue harm or prejudice to the interests of others; and
(d) the public interest would be best served by the issuance of an injunction.
(6) The commissioner may levy fines for violations of [sections 2 through 27] or the rules of the commissioner pursuant to a schedule of fines and the procedure provided for contested cases in the Montana Administrative Procedure Act and the rules of the commissioner. Fines paid must be deposited in the public money election campaign fund.
(7) The commissioner shall refer criminal violations to the attorney general for prosecution.
NEW SECTION. Section 23. Private right of action for others -- judicial review of commissioner's action. (1) A person other than the commissioner who believes that a candidate has violated a provision of [sections 2 through 27] has a right of action in the district court in the county in which the person bringing the action resides to enforce the provisions of [sections 2 through 27] or the rules of the commissioner if that person:
(a) has previously filed a complaint with the commissioner regarding the same alleged violation; and
(b) has not been informed by the commissioner in writing within 30 days of the date of filing the complaint that the commissioner intends to bring a civil action or an administrative action or to refer the matter to the attorney general to resolve the same alleged violation.
(2) Except as provided in this section, a person other than the commissioner bringing an action pursuant to subsection (1) may be awarded only the civil relief awardable to the commissioner had the commissioner brought the action.
(3) A party that substantially prevails in a civil action brought pursuant to subsection (1) charging a violation of [sections 2 through 27] or the rules of the commissioner may receive costs as provided by law and reasonable attorney fees.
(4) A person who is aggrieved by the violation of [sections 2 through 27] or the rules of the commissioner may bring an action in the district court for Lewis and Clark County to enforce the provisions of [sections 2 through 27] and the rules of the commissioner. The party that substantially prevails in the action is entitled to costs as provided by law and to reasonable attorney fees.
NEW SECTION. Section 24. Rulemaking. (1) The commissioner shall adopt rules implementing [sections 2 through 27].
(2) The rules must include rules:
(a) governing the use of the public money debit card;
(b) providing whistle blower protection for persons making complaints to the commissioner; and
(c) establishing a schedule of fines and a procedure for levying fines against persons who violate [sections 2 through 27] or the rules of the commissioner.
NEW SECTION. Section 25. Repayment of amounts spent in excess of public money funding. (1) If a participating candidate spends or obligates to spend more than the public money funding that the participating candidate is paid by the commissioner and if the commissioner determines that the additional amount spent or obligated is not an amount that had or could have reasonably been expected to have a significant impact on the election of that participating candidate, whether or not the participating candidate was elected, then the participating candidate shall repay to the public money fund an amount equal to the excess expenditure or obligation.
(2) If a participating candidate spends or obligates to spend more than the public money funding that the candidate is given and if the additional amount spent or obligated is determined by the commissioner to be an amount that had or could reasonably have been expected to have a significant impact on the election of that participating candidate, whether or not that participating candidate was elected, then the participating candidate shall repay to the public money fund an amount equal to 10 times the value of the excess expenditure or obligation.
NEW SECTION. Section 26. Offenses -- penalties. (1) A participating candidate may not knowingly:
(a) accept more public money funding than that amount to which the participating candidate is entitled;
(b) spend more public money funding than the participating candidate has received from the commissioner; or
(c) spend public money funding for a purpose other than those purposes allowed by [section 13].
(2) If a violation of subsection (1) involves an amount of public money funding that had or could reasonably have been expected to have a significant impact on the election of that participating candidate, whether or not that participating candidate was elected, the participating candidate may be fined an amount up to $25,000 or be imprisoned for a term up to 5 years, or both.
(3) A person who provides false information to the commissioner or conceals or withholds information from the commissioner is guilty of an offense and may be fined an amount up to $5,000 for each violation or be imprisoned for a term up to 5 years, or both.
NEW SECTION. Section 27. Loan from board of investments -- repayment. The commissioner may borrow money from the board of investments, and the board is authorized to make loans for the purposes of [sections 2 through 27], including payments made by the commissioner to candidates for public office as provided in [section 12]. Loans made by the board of investments must be repaid at a rate of interest and on a schedule determined by the board from money in the public money election campaign fund. If the money in the fund is insufficient to repay the loans within the period of time determined by the board of investments, the loans must be repaid from the general fund.
NEW SECTION. Section 28. Voluntary checkoff for public money election campaign fund. (1) Each individual taxpayer who is required to file an income tax return under this chapter may contribute part of any tax payment due to the public money election campaign fund, provided for in [section 18], by marking the appropriate box on the state income tax return.
(2) Each state individual income tax return must contain a provision for indicating a contribution to the public money election campaign fund in substantially the following form:
"Public money election campaign fund. Check this box if you wish to designate $5 ___, $10 ___, or more ___ (indicate amount up to a maximum of $50) of your tax payment due to help fund the public money election campaign fund. On a joint return, check the corresponding box for your spouse if your spouse wishes to contribute $5 ___, $10 ___, or more ___ (indicate amount up to a maximum of $50) of the tax payment due for the same purpose."
(3) Money received under this section must be deposited in the public money election campaign fund created by [section 18], after the department has deducted the amount necessary for the department to administer this section as provided in 15-30-153.
NEW SECTION. Section 29. Tax credit for money contributed to public money election campaign fund. (1) A tax credit is allowed against the taxes imposed by this chapter in an amount up to $50 for an amount contributed to the public money election campaign fund provided for in [section 18]. The credit allowed by this section may not exceed the taxpayer's income tax liability.
(2) The contribution for which the credit is allowed may be made by the voluntary checkoff provided for in [section 28] or by another method of donation.
(3) There is no carryback of carryforword of the credit permitted by this section. A contribution made by the voluntary checkoff provided for in [section 28] or by another method of contribution for which a tax credit is claimed must be made in the same tax year for which a return is filed.
NEW SECTION. Section 30. Voluntary checkoff for public money election campaign fund. (1) Each taxpayer that is required to file an income tax return under this chapter may contribute part of any tax payment due to the public money election campaign fund, provided for in [section 18], by marking the appropriate box on the state income tax return.
(2) Each state corporate income tax return must contain a provision for indicating a contribution to the public money election campaign fund in substantially the following form:
"Public money election campaign fund. Check this box if you wish to designate $5 ___, $10 ___, or more ___ (indicate amount up to a maximum of $50) of your tax payment due to help fund the public money election campaign fund."
(3) Money received under this section must be deposited in the public money election campaign fund created by [section 18], after the department has deducted any amount necessary for the department to administer this section.
NEW SECTION. Section 31. Tax credit for money contributed to public money election campaign fund. (1) A tax credit is allowed against the taxes imposed by this chapter in an amount up to $50 for an amount contributed to the public money election campaign fund provided for in [section 18]. The credit allowed by this section may not exceed the taxpayer's income tax liability.
(2) The contribution for which the credit is allowed may be made by the voluntary checkoff provided for in [section 30] or by another method of donation.
(3) There is no carryback of carryforword of the credit permitted by this section. A contribution made by the voluntary checkoff provided for in [section 30] or by another method of contribution for which a tax credit is claimed must be made in the same tax year for which a return is filed.
Section 32. Section 17-7-502, MCA, is amended to read:
"17-7-502. Statutory appropriations -- definition -- requisites for validity. (1) A statutory appropriation is an appropriation made by permanent law that authorizes spending by a state agency without the need for a biennial legislative appropriation or budget amendment.
(2) Except as provided in subsection (4), to be effective, a statutory appropriation must comply with both of the following provisions:
(a) The law containing the statutory authority must be listed in subsection (3).
(b) The law or portion of the law making a statutory appropriation must specifically state that a statutory appropriation is made as provided in this section.
(3) The following laws are the only laws containing statutory appropriations: 2-17-105; 3-5-901; 5-13-403; 10-3-203; 10-3-310; 10-3-312; 10-3-314; 10-4-301; [section 18]; 15-1-111; 15-23-706; 15-31-702; 15-34-115; 15-35-108; 15-36-324; 15-37-117; 15-38-202; 15-65-121; 15-70-101; 16-1-404; 16-1-406; 16-1-411; 17-3-106; 17-3-212; 17-3-222; 17-6-101; 17-7-304; 18-11-112; 19-3-319; 19-6-709; 19-9-702; 19-13-604; 19-17-301; 19-18-512; 19-19-305; 19-19-506; 19-20-604; 20-8-107; 20-26-1503; 22-3-1004; 23-5-136; 23-5-306; 23-5-409; 23-5-610; 23-5-612; 23-5-631; 23-7-301; 23-7-402; 37-43-204; 37-51-501; 39-71-503; 42-2-105; 44-12-206; 44-13-102; 50-4-623; 53-6-703; 53-24-206; 67-3-205; 75-1-1101; 75-5-1108; 75-6-214; 75-11-313; 77-1-505; 80-2-222; 80-4-416; 80-11-518; 81-5-111; 82-11-161; 87-1-513; 90-3-1003; 90-6-710; and 90-9-306.
(4) There is a statutory appropriation to pay the principal, interest, premiums, and costs of issuing, paying, and securing all bonds, notes, or other obligations, as due, that have been authorized and issued pursuant to the laws of Montana. Agencies that have entered into agreements authorized by the laws of Montana to pay the state treasurer, for deposit in accordance with 17-2-101 through 17-2-107, as determined by the state treasurer, an amount sufficient to pay the principal and interest as due on the bonds or notes have statutory appropriation authority for the payments. (In subsection (3): pursuant to sec. 7, Ch. 567, L. 1991, the inclusion of 19-6-709 terminates upon death of last recipient eligible for supplemental benefit; pursuant to Ch. 422, L. 1997, the inclusion of 15-1-111 terminates on July 1, 2008, which is the date that section is repealed; pursuant to sec. 10, Ch. 360, L. 1999, the inclusion of 19-20-604 terminates when the amortization period for the teachers' retirement system's unfunded liability is 10 years or less; pursuant to sec. 4, Ch. 497, L. 1999, the inclusion of 15-38-202 terminates July 1, 2014; and pursuant to sec. 10(2), Ch. 10, Sp. L. May 2000, the inclusion of 15-35-108 and 90-6-710 terminates June 30, 2005.)"
NEW SECTION. Section 33. Codification instruction. (1) [Sections 2 through 27] are intended to be codified as an integral part of Title 13, chapter 37, and the provisions of Title 13, chapter 37, apply to [sections 2 through 27].
(2) [Sections 28 and 29] are intended to be codified as an integral part of Title 15, chapter 30, part 1, and the provisions of Title 15, chapter 30, part 1, apply to [sections 28 and 29].
(3) [Sections 30 and 31] are intended to be codified as an integral part of Title 15, chapter 31, part 4, and the provisions of Title 15, chapter 31, part 4, apply to [sections 29 and 31].
NEW SECTION. Section 34. Fund transfer. There is transferred to the public money election campaign fund $100,000 from the general fund for the purposes of [sections 2 through 27] for each of the fiscal years 2002 and 2003. The money must be deposited in the public money election campaign fund created by [section 18].
NEW SECTION. Section 35. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
NEW SECTION. Section 36. Effective dates. (1) Except as provided in subsections (2), [this act] is effective October 1, 2001.
(2) [Sections 24, 32 through 35, 37, and 38 and this section] are effective on passage and approval.
NEW SECTION. Section 37. Retroactive applicability. [Sections 28 through 31] apply retroactively, within the meaning of 1-2-109, to tax years beginning after December 31, 2000.
NEW SECTION. Section 38. Contingent termination. The voluntary income tax checkoffs created in [sections 28 and 30] terminate January 1 of the first tax year following the 2 immediately preceding tax years in which the voluntary checkoffs raise less than $20,000 in each of those 2 tax years.
- END -
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