senate Bill S1460

2013-2014 Legislative Session

Relates to defining the term "express advocacy"

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to elections
Jan 09, 2013 referred to elections

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S1460 - Bill Details

See Assembly Version of this Bill:
A690
Current Committee:
Law Section:
Election Law
Laws Affected:
Amd §14-100, El L

S1460 - Bill Texts

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Relates to the defining the term "express advocacy".

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BILL NUMBER:S1460

TITLE OF BILL: An act to amend the election law, in relation to
defining the term "express advocacy"

SUBJECT AND PURPOSE: To enhance and strengthen New York State's
campaign finance laws by defining, for the first time in New York
State law, the terms "independent expenditure" and "express advocacy."
This bill aims to ensure that entities engaged in express advocacy of
candidates are captured by the registration and disclosure provisions
of the election law.

SUMMARY AND DESCRIPTION OF PROVISIONS: The bill adds new subdivisions
12 and 13 to § 14-100 of the Election Law to define "express advocacy"
and "independent expenditure", respectively.

The new definition of "express advocacy" captures, and subjects to
full disclosure under the Election Law, those entities that are
engaged in express advocacy activity which has heretofore not been
captured by the statute.

The new definition of "independent expenditure" expands the definition
of this term as recently adopted by the New York State Board of
Elections in its regulations. This new definition states that
independent expenditures also include references to "clearly
identified candidates" as set forth in the definition of "express
advocacy."

LEGISLATIVE HISTORY: None.

JUSTIFICATION: This bill will bolster and tighten New York State's
campaign finance laws by mandating that those organizations engaging
in express advocacy of candidates fully disclose their sources of
funding and how much they spend on political communications and
thereby giving citizens a clearer view of the election-related
communications landscape.

The nexus of New York State's current definition of "express advocacy"
(contained in SBOE regulations) is found in the 1976 U.S. Supreme
Court decision Buckley v. Valeo. In Buckley, the Supreme Court,
amongst other things, held that use of certain words (later deemed the
"eight magic words") in an election-related communication rendered
that communication "express advocacy" and therefore subject to limits
and disclosure under federal campaign finance laws.

Following the reasoning in Buckley, New York law currently only
requires financial disclosure for organizations engaging in
election-related communications which expressly advocates for or
against candidates using any of the "eight magic words."

Both the Federal Election Commission and the Campaign Finance Board of
the city of New York have adopted a "functional equivalent" standard
regarding "express advocacy." This means that if an election-related
communication does not contain any of the "eight magic words" but
rather the functional equivalent of them, then such election-related
communication shall be deemed "express advocacy" and subject to full
disclosure. This bill strengthens New York State campaign finance law


by broadening its scope though incorporation of this "functional
equivalent" standard.

It is particularly important that the "functional equivalent" standard
be written into New York law now, a time when the involvement of
independent expenditure groups in our elections are on the rise and
their support or opposition of candidates has reached new levels.

FISCAL IMPLICATIONS: There will be additional costs to the State Board
of Elections for oversight and enforcement duties associated with the
changes contained herein.

EFFECTIVE DATE: This act takes effect immediately.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1460

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen.  STEWART-COUSINS -- read twice and ordered printed,
  and when printed to be committed to the Committee on Elections

AN ACT to amend the election law,  in  relation  to  defining  the  term
  "express advocacy"

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 1 of section 14-100 of  the  election  law,  as
amended  by  chapter  71  of  the  laws  of  1988, is amended to read as
follows:
  1. "political committee" means any corporation aiding or promoting and
any committee, political club or combination  of  one  or  more  persons
operating  or co-operating to aid or to promote the success or defeat of
a political party or principle, or of any ballot proposal; or to aid  or
take  part in the election or defeat of a candidate for public office or
to aid or take part in the election or defeat of a candidate  for  nomi-
nation  at  a  primary election or convention, including all proceedings
prior to such primary election, or of a candidate for any party position
voted for at a primary election, or to aid or defeat the  nomination  by
petition  of  an independent candidate for public office; but nothing in
this article shall apply  to  any  committee  or  organization  for  the
discussion  or  advancement of political questions or principles without
connection with any vote or to a national committee  organized  for  the
election  of  presidential  or  vice-presidential  candidates;  PROVIDED
HOWEVER THAT EXPRESS ADVOCACY AS DEFINED BY SUBDIVISION TWELVE  OF  THIS
SECTION  SHALL  BE  SUBJECT TO THE PROVISIONS OF THIS ARTICLE; provided,
[however] FURTHER, that a person or corporation making  contribution  or
contributions  to  a  candidate or a political committee which has filed
pursuant to section 14-118 OF THIS  ARTICLE  shall  not,  by  that  fact
alone, be deemed to be a political committee as herein defined.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02373-01-3

S. 1460                             2

  S  2.  Section 14-100 of the election law is amended by adding two new
subdivisions 12 and 13 to read as follows:
  12. "EXPRESS ADVOCACY" MEANS A COMMUNICATION:
  (1)  THAT CONTAINS EXPRESS WORDS SUCH AS VOTE, OPPOSE, SUPPORT, ELECT,
DEFEAT, OR REJECT, WHICH CALL FOR THE ELECTION OR DEFEAT OF A CANDIDATE,
OR
  (2) WHEN TAKEN AS A WHOLE WITH LIMITED REFERENCE TO  EXTERNAL  EVENTS,
SUCH  AS  THE  PROXIMITY TO THE ELECTION, COULD ONLY BE INTERPRETED BY A
REASONABLE PERSON AS CONTAINING ADVOCACY OF THE ELECTION  OR  DEFEAT  OF
ONE OR MORE CLEARLY IDENTIFIED CANDIDATES BECAUSE:
  (A)  THE ELECTORAL PORTION OF THE COMMUNICATION IS UNMISTAKABLE, UNAM-
BIGUOUS, AND SUGGESTIVE OF ONLY ONE MEANING; AND
  (B) REASONABLE MINDS COULD NOT DIFFER  AS  TO  WHETHER  IT  ENCOURAGES
ACTIONS  TO ELECT OR DEFEAT ONE OR MORE CLEARLY IDENTIFIED CANDIDATES OR
ENCOURAGES SOME OTHER KIND OF ACTION.
  13. "INDEPENDENT EXPENDITURE" MEANS AN EXPENDITURE MADE IN SUPPORT  OR
OPPOSITION OF A CANDIDATE:
  (I)  THAT  EXPRESSLY ADVOCATES FOR THE ELECTION OR DEFEAT OF A CLEARLY
IDENTIFIED CANDIDATE; AND
  (II) THAT THE CANDIDATE OR HIS OR HER AGENTS OR  AUTHORIZED  POLITICAL
COMMITTEE(S)  DID  NOT  AUTHORIZE, REQUEST, SUGGEST, FOSTER OR COOPERATE
WITH IN ANY WAY.
  S 3. This act shall take effect immediately.

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