PRINTER'S NO. 4545
No. 2825 Session of 2008
INTRODUCED BY FREEMAN, ARGALL, BENNINGTON, BOYD, BRENNAN, GEORGE, MAHONEY, MELIO, MOUL, NAILOR, M. O'BRIEN, ROCK, SIPTROTH, K. SMITH, GIBBONS, SONNEY, GINGRICH, BENNINGHOFF AND MURT, OCTOBER 15, 2008
REFERRED TO COMMITTEE ON STATE GOVERNMENT, OCTOBER 15, 2008
AN ACT 1 Amending the act of June 3, 1937 (P.L.1333, No.320), entitled 2 "An act concerning elections, including general, municipal, 3 special and primary elections, the nomination of candidates, 4 primary and election expenses and election contests; creating 5 and defining membership of county boards of elections; 6 imposing duties upon the Secretary of the Commonwealth, 7 courts, county boards of elections, county commissioners; 8 imposing penalties for violation of the act, and codifying, 9 revising and consolidating the laws relating thereto; and 10 repealing certain acts and parts of acts relating to 11 elections," defining "mass mailing," "public communication," 12 "electioneering communication" and "targeting to relevant 13 electorate"; providing for disclosure of electioneering 14 communications; and further providing for contributions or 15 expenditures by national banks, corporations or 16 unincorporated associations. 17 The General Assembly of the Commonwealth of Pennsylvania 18 hereby enacts as follows: 19 Section 1. Section 1621 of the act of June 3, 1937 20 (P.L.1333, No.320), known as the Pennsylvania Election Code, is 21 amended by adding definitions to read: 22 Section 1621. Definitions.--As used in this article, the 23 following words have the following meanings: 24 * * *
1 (c.1) The words "electioneering communication" shall mean 2 the following: 3 (1) Any broadcast, cable or satellite communication which: 4 (i) refers to a clearly identified candidate; and 5 (ii) is made within: 6 (A) sixty (60) days before a municipal, general or special 7 election for the office sought by the candidate or thirty (30) 8 days before a primary of a political party that has authority to 9 nominate a candidate for the office sought by the candidate; and 10 (B) is targeted to the relevant electorate. 11 (2) The term shall not include: 12 (i) a communication appearing in a news story, commentary or 13 editorial distributed through the facilities of any broadcasting 14 station, unless such facilities are owned or controlled by any 15 political party, political committee or candidate; 16 (ii) a communication which constitutes an expenditure or an 17 independent expenditure under this act; 18 (iii) a communication which constitutes a candidate debate 19 or forum or which solely promotes such a debate or forum and is 20 made by or on behalf of the person sponsoring the debate or 21 forum; 22 (iv) a communication made regarding a candidate for any 23 local office, including the office of judge of the court of 24 common pleas; 25 (v) a communication made regarding a candidate for any 26 political party office; or 27 (vi) any other communication exempted under such regulations 28 as the Secretary of the Commonwealth may promulgate to ensure 29 appropriate implementation of this article, except that under 30 any regulation, a communication may not be exempted if it meets 20080H2825B4545 - 2 -
1 the requirements of this subclause and is a public communication 2 that refers to a clearly identified candidate for office that 3 promotes or supports a candidate for that office, or attacks or 4 opposes a candidate for that office, regardless of whether the 5 communication expressly advocates a vote for or against a 6 candidate. 7 * * * 8 (f.1) The words "mass mailing" shall mean a mailing by 9 United States mail or a facsimile of more than five hundred 10 (500) pieces of mail matter of an identical or substantially 11 similar nature within any thirty-day period. 12 * * * 13 (i.1) The words "public communication" shall mean a 14 communication by means of any broadcast, cable, satellite 15 communication, newspaper, magazine, outdoor advertising 16 facility, mass mailing, telephone bank to the general public or 17 any other form of general public political advertising. 18 * * * 19 (j.1) The words "targeting to relevant electorate" shall 20 mean a communication which refers to a clearly identified 21 candidate, if the communication can be received by: 22 (1) fifty thousand (50,000) or more persons in this 23 Commonwealth in the case of a candidate for a Statewide office; 24 (2) twenty thousand (20,000) or more persons in the district 25 the candidate seeks to represent in the case of a candidate for 26 the Senate of the Commonwealth of Pennsylvania; or 27 (3) five thousand (5,000) or more persons in the district 28 the candidate seeks to represent in the case of a candidate for 29 the House of Representatives of the Commonwealth of 30 Pennsylvania. 20080H2825B4545 - 3 -
1 * * * 2 Section 2. The act is amended by adding a section to read: 3 Section 1626.2. Disclosure of Electioneering 4 Communications.-- 5 (a) Every person who makes a disbursement for the direct 6 costs of producing and airing electioneering communications in 7 an aggregate amount in excess of ten thousand dollars ($10,000) 8 during any calendar year shall, within twenty-four (24) hours of 9 each disclosure date, file with the appropriate supervisor a 10 statement containing the information described in subsection 11 (b). If the twenty-four-hour period ends on a Saturday, Sunday, 12 holiday or any time after the close of business, the statement 13 shall be filed on the next business day. 14 (b) Each statement required to be filed under this section 15 shall be made under penalty of perjury and shall contain the 16 following information: 17 (1) If the person making the disbursement is an individual, 18 the name, home address, occupation and employer of the 19 individual. 20 (2) If the person making the disbursement is not an 21 individual, the name and address of the person's principal place 22 of business. 23 (3) The name of any person sharing or exercising direction 24 or control of the person named under clause (1) or (2), as well 25 as the name of the custodian of the accounts of the person named 26 under clause (1) or (2). 27 (4) The amount of each disbursement of more than two hundred 28 fifty dollars ($250) during the period covered by the statement 29 and the name of the person to whom the disbursement was made. 30 (5) The elections to which the electioneering communications 20080H2825B4545 - 4 -
1 pertain and the names, if known, of the candidates identified or 2 to be identified. 3 (6) If the disbursements were paid out of a segregated bank 4 account which consists of funds contributed solely by 5 individuals who are United States citizens or nationals or 6 lawfully admitted for permanent residence, as defined in section 7 101(a)(20) of the Immigration and Nationality Act (66 Stat. 163, 8 8 U.S.C. § 101(a)(20)), the names and addresses of all 9 contributors who contributed an aggregate amount of one thousand 10 dollars ($1,000) or more during the period beginning on the 11 first day of the preceding calendar year and ending on the 12 disclosure date. Nothing in this clause shall be construed to 13 prohibit the use of funds in the segregated account for a 14 purpose other than electioneering communications. 15 (7) If the disbursements were paid out of funds not 16 described in clause (6), the names and addresses of all 17 contributors who contributed an aggregate amount of one thousand 18 dollars ($1,000) or more to the person making the disbursement 19 during the period beginning on the first day of the preceding 20 calendar year and ending on the disclosure date. 21 (c) For purposes of this section, a person shall be treated 22 as having made a disbursement if the person has executed a 23 contract to make the disbursement. 24 (d) Any requirement to report under this section shall be in 25 addition to any other reporting requirement under this act. 26 (e) Nothing in this section may be construed to establish, 27 modify or otherwise affect the definition of "political 28 activities" or "electioneering activities," including the 29 definition of "participating in, intervening in or influencing 30 or attempting to influence a political campaign on behalf of or 20080H2825B4545 - 5 -
1 in opposition to any candidate for public office," for purposes 2 of the Internal Revenue Code of 1986 (Public Law 99-514, 26 3 U.S.C. § 1 et seq.). 4 (f) A person who fails to make a statement as required under 5 this section shall be subject to prosecution under 18 Pa.C.S. § 6 4902 (relating to perjury). 7 (g) For purposes of this section, the following words and 8 phrases shall have the meaning ascribed in this subsection: 9 The words "disclosure date" shall mean the first date during 10 any calendar year by which a person has made disbursements for 11 the direct costs of producing or airing electioneering 12 communications aggregating in excess of ten thousand dollars 13 ($10,000); and any other date during such calendar year by which 14 a person has made disbursements for the direct costs of 15 producing or airing electioneering communications aggregating in 16 excess of ten thousand dollars ($10,000) since the most recent 17 disclosure date for the calendar year. 18 Section 3. Section 1633 of the act is amended by adding a 19 subsection to read: 20 Section 1633. Contributions or Expenditures by National 21 Banks, Corporations or Unincorporated Associations.--* * * 22 (e) (1) The following shall apply: 23 (i) An electioneering communication shall be treated as made 24 by an entity described in subsection (a) if an entity pursuant 25 to subsection (a) directly or indirectly disburses any amount 26 for any of the costs of the communication. 27 (ii) A section 501(c)(4) organization that derives amounts 28 from business activities or receives funds from any entity 29 pursuant to subsection (a) of this section shall be considered 30 to have paid for any communication out of such amounts unless 20080H2825B4545 - 6 -
1 such organization paid for the communication out of a segregated 2 account to which only individuals can contribute, as described 3 in section 1626.2(b)(6) of this act. 4 (iii) An electioneering communication does not include a 5 communication by a section 501(c)(4) organization or a political 6 organization, as defined in section 527(e)(1) of the Internal 7 Revenue Code of 1986 (Public Law 95-514, 26 U.S.C. § 1527(e)) 8 made under section 1626.2(b)(6) or (7) of this act if the 9 communication is paid for exclusively by funds provided directly 10 by individuals who are United States citizens or nationals or 11 lawfully admitted for permanent residence, as defined in section 12 101(a)(20) of the Immigration and Nationality Act (66 Stat. 163, 13 8 U.S.C. § 101(a)(20)). For purposes of this subclause, the term 14 "provided directly by individuals" does not include funds the 15 source of which is an entity described in subsection (a) of this 16 section. 17 (2) Nothing in this subsection shall be construed to 18 authorize an organization exempt from taxation under section 19 501(a) of the Internal Revenue Code of 1986 (Public Law 99-514, 20 26 U.S.C. § 501(a)) to carry out any activity which is 21 prohibited under Federal law. 22 (3) An entity described in subsection (a) is prohibited from 23 expressly advocating for the election or defeat of a candidate. 24 A communication includes indicia of express advocacy if it 25 mentions any election, candidate, political party, opposing 26 candidate or voting by the general public or takes a position on 27 any candidate's or office holder's character, qualifications or 28 fitness for office. Content that would support a determination 29 that a communication has an interpretation other than as an 30 appeal to vote for or against a clearly identified candidate 20080H2825B4545 - 7 -
1 includes content that: 2 (i) focuses on a public policy issue and either urges a 3 candidate to take a position on the issue or urges the public to 4 contact the candidate about the issue; 5 (ii) proposes a commercial transaction, such as purchase of 6 a book, video or other product or service, or such as 7 attendance, for a fee, at a film exhibition or other event; or 8 (iii) includes a call to action or other appeal that, 9 interpreted in conjunction with the rest of the communication, 10 urges an action other than voting for or against or contributing 11 to a clearly identified candidate or political party. 12 (4) A person shall be treated as having made a disbursement 13 if the person has executed a contract to make the disbursement. 14 (5) For purposes of this subsection, the following words and 15 phrases shall have the meaning ascribed in this clause: 16 The words "section 501(c)(4) organization" shall mean an 17 organization which: 18 (i) is described in section 501(c)(4) of the Internal 19 Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. 26 § 20 501(c)(4)) and is exempt from taxation under section 501(a) of 21 the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. 22 § 501(a)); or 23 (ii) has submitted an application to the Internal Revenue 24 Service for determination of its status as an organization 25 described in subclause (i). 26 The words "targeted communication" shall mean an 27 electioneering communication that is distributed from a 28 television or radio broadcast station or provider of cable or 29 satellite television service and is targeted to the relevant 30 electorate. 20080H2825B4545 - 8 -
1 Section 4. This act shall take effect in 60 days. F10L25RLE/20080H2825B4545 - 9 -