CAMPAIGN FINANCE AND BALLOT MEASURE GUIDE

Transcription

1 TENNESSEE CAMPAIGN FINANCE AND BALLOT MEASURE GUIDE These resurces are current as f 6/2017. We d ur best t peridically update these resurces and welcme any cmments r questins regarding new develpments in the law. Please us at advcacy@afj.rg. What s New in This Guide The fllwing changes/additins have been made since the previus versin f this guide: This guide is the first iteratin fr Tennessee. This guide summarizes key aspects f laws and regulatins gverning campaign finance n the state level. The laws discussed in this publicatin apply t electin activities surrunding candidates fr lcal and statewide ffice. It is nt intended t prvide legal advice r t serve as a substitute fr legal advice. In sme jurisdictins, city and/r cunty regulatins may als apply t certain plitical activities. Check with the apprpriate lcal jurisdictin befre undertaking any activity.! 1

2 Table f Cntents I. Cntributin Limits and Surce Restrictins II. Cmmunicatins III. Crdinatin IV. Registratin and Reprting Requirements V. Ballt Measures VI. Cntact Infrmatin fr State and Lcal Agencies! 2

3 TYPES OF TENNESSEE ORGANIZATIONS Plitical Actin Cmmittees (PACs): Affiliated plitical campaign cmmittee: Plitical campaign cmmittees established, financed, maintained, r cntrlled by any crpratin, labr rganizatin, r any ther persn, including any parent, subsidiary, branch, divisin, department, r lcal unit f such crpratin, labr rganizatin, r any ther persn, r by any grup f such persns. TCA (1). Plitical campaign cmmittee: Any crpratin r any ther rganizatin making expenditures t supprt r ppse any measure. TCA (12)(A); r Any cmmittee, club, crpratin, assciatin r ther grup f persns which receives cntributins r makes expenditures t supprt r ppse any candidate fr public ffice r measure during a calendar quarter in an aggregate amunt exceeding tw hundred fifty dllars ($1000). TCA (12)(B). Multi-Candidate Cmmittee is defined as a cmmittee that makes expenditures t supprt r ppse tw r mre candidates fr public ffice r tw r mre measures. TCA (9). CONTRIBUTION LIMITS AND SOURCE RESTRICTIONS T Candidates T Cmmittees Single Measure Frm: Individuals Gvern r Other Statewide Legislativ e Municipal PACs Parties $4,000 $4,000 $1,500 $1,500 N limit N limit N limit PACs $11,800 $11,800 $11,800 (State Senate) $7,800 (State Rep.) $7,800 N limit N limit N limit Crpratins $250 $250 $250 $250 $250 $250 Legal Crprate cntributins: Since June 1, 2011, Tennessee has allwed crpratins t make cntributins t candidates and PACs in Tennessee Hwever,! 3

4 crpratins making campaign cntributins ttaling ver $250 in the aggregate t candidates in a calendar quarter must register as a PAC and file campaign financial disclsure reprts. Cntributins t PACs: Cntributins t PACs are unlimited. Ttal cntributin limits frm PACs (TCA ): Statewide ffice: 50% f ttal cntributins; All electins except statewide: $118,000 Ttal cntributin limits frm Plitical Party PACs (TCA ): Statewide ffice: $393,000; State Senate: $63,300; and State Rep/All ther state and lcal ffices: $31,600. Legislative sessin fundraising blackut: Frm the cnvening f the General Assembly in rganizatinal sessin thrugh the earlier f June 1 r the last day f regular sessin in dd numbered years and frm the cnvening f regular legislative sessin t the earlier f May 15 r the cnclusin f annual sessin in even numbered years and frm the cnvening f an extrardinary sessin thrugh the cnclusin f extrardinary sessin, the gvernr r a legislatr may nt have a fundraiser r slicit r accept cntributins fr the gvernr r legislatr s benefit r fr the benefit f anther legislative candidate r gubernatrial candidate, a plitical party legislative caucus PAC r any member f a plitical party legislative caucus PAC. TCA (a)(1). PAC fundraiser blackut during legislative sessin: Frm the cnvening f the General Assembly in rganizatin sessin thrugh the earlier f June 1 r the last day f regular sessin in dd numbered years and frm the cnvening f regular legislative sessin t the earlier f May 15 r the cnclusin f annual sessin in even numbered years and frm the cnvening f an extrardinary sessin thrugh the cnclusin f extrardinary sessin, a plitical party PAC is prhibited frm cnducting a fundraiser, sliciting r accepting campaign cntributins fr the benefit f a legislative candidate, gubernatrial candidate, a caucus r any caucus member. TCA (b). Lbbyist blackut during extrardinary legislative sessin: An emplyer f a lbbyist r a PAC cntrlled by an emplyer f a lbbyist is prhibited frm making a campaign cntributin t a gubernatrial r legislative candidate during regular r extrardinary legislative sessin. TCA ! 4

5 PAC campaign cntributin blackut just prir t electins: During the nine (9) day perid prir t any electin day, a PAC is prhibited frm making a campaign cntributin t a candidate fr state r lcal public ffice, unless the cmmittee is a plitical party PAC. TCA PACs can cntribute t elected fficials during this nine (9) day blackut perid as lng as the elected fficial is nt up fr electin. Online cntributins: The abve rules apply t all nline cntributins. Treasurers r candidates shuld cntact their respective vendrs t turn ff the nline cntributin ptin during the prhibitive perids. What t d if a candidate receives a cntributin during blackut perid: Shuld a candidate receive a campaign cntributin during ne f the abve blackut perids, the candidate shuld return that cntributin within sixty (60) days f receipt. TCA Gvernment buildings: Fr state emplyees, it is unlawful t use public buildings r facilities fr meetings r preparatin f campaign activity in supprt f any particular candidate, party r measure unless reasnably equal pprtunity is prvided fr presentatin f all sides r views, r reasnably equal access t the buildings r facilities is prvided all sides. TCA (b). Exceptins: ppularly elected fficials, fficials elected by the general assembly, qualified candidates fr public ffice, members f the gvernr s cabinet, and members f the gvernr s staff are expressly excluded frm the prvisins f TCA (b). See TCA (3). Cash cntributins: Individuals may cntribute $50 in cash t any candidate r PAC. Cntributins exceeding $50 per electin must be made by check, mney rder r ther written instrument. TCA What are cnsidered cntributins: Individuals: In-kind cntributins: Generally, the dnatin f anything f value is an in-kind cntributin. This includes the dnatin f rent, ffice machines, furniture, stamps, etc. The fair market value f the dnated item cunts against the cntributin limits. Dnatin f services is als cnsidered an in-kind cntributin.! 5

6 Fundraising tickets and items: The purchase f a fundraising item r ticket t a fundraiser is a cntributin. The full purchase price cunts as the cntributin. Lans: Laning mney t a candidate r plitical cmmittee is a cntributin, even if the individual charges interest n the lan. PACs and Single Measure Campaign Cmmittee: A reprtable cntributin is defined as any advance, cnveyance, depsit, distributin, transfer f funds, lan, lan guaranty, persnal funds f a candidate, payment, gift, pledge r subscriptin, f mney r like thing f value and any cntract, agreement, prmise r ther bligatin made fr the purpse f influencing a measure r nminatin fr electin r the electin f any persn fr public ffice. TCA (4). In-kind cntributins are gds r services prvided t a candidate withut charge (such as the use f equipment r advertisement materials at n cst t the candidate) and must be listed separately n the campaign disclsure statement frm ther campaign cntributins. TCA (c)(1) and Rule (6). What are nt cnsidered cntributins: Individuals: Vlunteering: An individual may help candidates and cmmittees by vlunteering persnal services. Yur services are nt cnsidered cntributins as lng as yu are nt paid by anyne. (If yur services are cmpensated by smene ther than the cmmittee itself, the payment is cnsidered a cntributin by that persn t the cmmittee.) As a vlunteer, the expenses yu incur vlunteering are nt cnsidered cntributins. Hme event: A fundraising party r receptin is nt cnsidered a cntributin as lng as the cst f the invitatins, fd and beverages d nt exceed $100. Vter registratin: Nnpartisan activity designed t encurage individuals t vte r register t vte is nt cnsidered a cntributin. PACs and Single Measure Campaign cmmittee: Vlunteer wrk: Services, including expenses prvided withut cmpensatin by a candidate, r any individuals wh vlunteer a prtin r all f their time n behalf f a candidate are nt cntributins. TCA (4)(A). Publicity: Nt included within the meaning f cntributin is any news stry, cmmentary r editrial distributed thrugh the facilities f any bradcasting statin, newspaper,! 6

7 magazine, r ther peridical publicatin, unless such facilities are wned whlly r in part r cntrlled by a plitical party, plitical cmmittee r candidate. TCA (4)(B). Vter registratin effrts: Any nnpartisan activity designed t encurage individuals t vte r t register t vte is nt cnsidered a campaign cntributin. TCA (4)(C). Internal cmmunicatins: Nt included within the meaning f cntributin is any written, ral r electrnically transmitted cmmunicatin by any membership rganizatin r crpratin t its members r stckhlders, if such membership rganizatin r crpratin is nt rganized primarily fr the purpse f influencing the nminatin fr electin r electin f any persn t public ffice. Hwever, if the rganizatin r crpratin simply finances the disseminatin, distributin r republicatin in whle r in part f campaign materials prepared by the candidate r candidate s cmmittee, then such financing shall be cnsidered a campaign cntributin. TCA (4)(D). Other candidate-related activities: Nt included within the meaning f cntributin is the use f real r persnal prperty and the cst f invitatins, fd and beverages nt exceeding ne hundred dllars ($100), vluntarily prvided n an individual s residential premises fr candidate-related activities. TCA (4)(E). Cntributins frm nnprfit rganizatins: 501(c)(3) entities cannt supprt r ppse a candidate fr public ffice. COMMUNICATIONS PAC cmmunicatins: Publicity: Nt included within the meaning f cntributin is any news stry, cmmentary r editrial distributed thrugh the facilities f any bradcasting statin, newspaper, magazine, r ther peridical publicatin, unless such facilities are wned whlly r in part r cntrlled by a plitical party, plitical cmmittee r candidate. TCA (4)(B). Independent Expenditures: An independent expenditure is mney spent fr a cmmunicatin expressly advcating the electin r defeat f a clearly identified candidate which is nt made with the cperatin r with the prir cnsent f, r in cnsultatin with, r at the request f, r! 7

8 suggestin f, a candidate r any agent r authrized cmmittee f the candidate. Tenn. Cmp. R. & Regs Independent expenditures are nt cnsidered cntributins and are unlimited. An individual may spend any amunt n each cmmunicatin as lng as the expenditure is truly independent. One may, fr example, pay fr an advertisement in a newspaper r n the radi urging the public t vte fr the candidate ne wants elected. Or ne may prduce and distribute psters r yard signs telling peple nt t vte fr a candidate ne ppses. Issue Advcacy v. Express Advcacy: Tennessee des nt have a statutry definitin fr express advcacy. Hwever, the Tennessee Supreme Curt adpted the Buckley v. Vale magic wrds test fr express advcacy. Express advcacy is limited t cmmunicatins that cntain express wrds f advcacy f the electin r defeat f a candidate r issue such as vte fr, elect, supprt, etc. Bemis v. Pentecstal Church v. State, 731 S.W.2d 897 (Tenn. 1987). Disclaimers: When a disclaimer is required: Whenever any persn makes an expenditure fr the purpse f financing a cmmunicatin that expressly advcates the electin r defeat f a clearly identified candidate, as defined by , r that slicits any cntributin, thrugh any bradcasting statin, newspaper, magazine, utdr advertising facility, pster, yard sign, direct mailing r any ther frm f general public plitical advertising, a disclaimer shall appear and be presented in a clear and cnspicuus manner t give the reader, bserver r listener adequate ntice f the identity f persns wh paid fr and, where required, wh authrized the cmmunicatin. Such persn is nt required t place the disclaimer n the frnt face r page f any such material, as lng as a disclaimer appears within the cmmunicatin, except n cmmunicatins, such as billbards, that cntain nly a frnt face. TCA (emphasis added). Disclaimer requirements: Such cmmunicatin, including any slicitatin, if paid fr and authrized by a candidate, an authrized cmmittee f a candidate, r its agent shall clearly state that the cmmunicatin has been paid fr by the authrized plitical cmmittee, in additin t the identity f the persn wh is the head f such cmmittee, r the identity f the treasurer f such cmmittee. TCA (a)(1) (emphasis added).! 8

9 Such cmmunicatin, including any slicitatin, if authrized by a candidate, an authrized cmmittee f a candidate r an agent theref, but paid fr by any ther persn, shall clearly state that the cmmunicatin is paid fr by such ther persn and is authrized by such candidate, authrized cmmittee r agent. TCA (a)(2) (emphasis added). Such cmmunicatin, including any slicitatin, if made n behalf f r in ppsitin t a candidate, but paid fr by any ther persn and nt authrized by a candidate, authrized cmmittee f a candidate r its agent, shall clearly state that the cmmunicatin has been paid fr by such persn and is nt authrized by any candidate r candidate's cmmittee. TCA (a)(3) (emphasis added). Fr slicitatins directed t the general public n behalf f a plitical cmmittee which is nt an authrized cmmittee f a candidate, such slicitatin shall clearly state the full name f the persn wh paid fr the cmmunicatin. TCA (a)(4)(A) (emphasis added). Fr purpses f this sectin, whenever a separate segregated fund slicits cntributins t the fund frm thse persns it may slicit, such cmmunicatin shall nt be cnsidered a frm f general public advertising. Such advertisements shall als include the name f the printer f such advertisement, and the identity f the persn wh paid fr the advertisement. TCA (a)(4)(B) (emphasis added). When Disclaimer is nt required: Bumper stickers, pins, buttns, pens, nvelties, and similar small items upn which the disclaimer cannt be cnveniently printed d nt require a disclaimer. Electineering Cmmunicatins Tennessee des nt have a statutry definitin fr Electineering Cmmunicatins. In the 2015 legislative sessin, there was a bill that wuld have defined Electineering cmmunicatin. SB 970 (Kelsey). The bill, which did nt pass, defined Electineering cmmunicatin as any bradcast, cable, r satellite televisin, r radi transmissin, United States pstal service mailing, billbard, newspaper, r peridical that: (1) Clearly identifies a candidate fr a state r lcal public ffice by either specifically naming the candidate, r identifying the candidate withut using the candidate's name;! 9

10 (2) Is bradcast, transmitted, mailed, erected, distributed, r therwise published within 60 days befre any electin fr that ffice in the jurisdictin in which the candidate is seeking electin; and (3) Either alne, r in cmbinatin with ne r mre cmmunicatins identifying the candidate by the same persn during the 60 days befre an electin, has a fair market value f $1,000 r mre. COORDINATION Independent expenditures: As lng as expenditures have nt been crdinated with a candidate r any agent r authrized cmmittee f a candidate, they remain classified as independent expenditures and are nt treated as cntributins. Tenn. Cmp. R. & Regs What is crdinatin? Based n infrmatin abut the candidate s plans, prjects, r needs prvided t the expending persn by the candidate, r by the candidate s agent(s), with a view tward having an expenditure made; r Made by r thrugh any persn wh is, r has been, authrized t raise r expend funds, wh is, r has been, an fficer f any authrized cmmittee, r wh is, r has been, receiving any frm f cmpensatin r reimbursement frm the candidate, the candidate s cmmittee r agent. Tenn. Cmp. R. & Regs (4)(a). Questins arise where ne rganizatin makes bth cntributins and expenditures. In this case, the Tennessee Attrney General has pined: [T]he Registry s determinatin that the particular expenditure was crdinated and therefr a cntributin under the statute must be supprted by evidence which is bth substantial and material in light f the entire recrd... The evidence befre the tribunal must be such relevant evidence as a reasnable mind might accept as adequate t supprt a ratinal cnclusin and such as t furnish a reasnably sund basis fr the actin under cnsideratin.. [A]ny determinatin that an expenditure is crdinated, rather than independent, under the statute shuld be based n cncrete factual evidence. Tenn. Op. Att y Gen. N (July 24, 1996) (citatins mitted).! 10

11 Thus, crdinatin is nt illegal. Hwever, crdinatin means that the independent expenditures are n lnger independent and qualify as cntributins. Taking persnal/vacatin time t avid crdinatin: Say fr example that an emplyee f a PAC wants t crdinate with a candidate during the PAC blackut perid. TCA There is nthing in the Registry s regulatins r Tennessee s campaign finance laws that wuld prevent smene wh wrks fr an rganizatin that prvides services t candidates t take time ff t vlunteer fr thse candidates if the persn chses t d s n their wn time. REGISTRATION AND REPORTING REQUIREMENTS What s a cntributin? See Cntributin Limits and Surce Restrictins. What s an expenditure? TCA (6). Expenditure means a purchase, payment, distributin, lan, advance, depsit r gift f mney r anything f value made fr the purpse f influencing a measure r the nminatin fr electin r electin f any persn t public ffice. Expenditure als includes the use f campaign funds by an fficehlder fr the furtherance f the ffice f the fficehlder. Candidates State public ffice Shall file with the registry f electin finance a statement f all cntributins received and expenditures made by r n behalf f such candidate. TCA (a). Lcal public ffice Shall file with each cunty electin cmmissin f the cunty where the electin is held a statement f all cntributins received and all expenditures made by r n behalf f the candidate. TCA (b). When filed? TCA (c). Quarterly during an electin year, within ten (10) days fllwing the cnclusin f the quarterly reprts ending March 31, June 30, September 30, and January 15. Als required t file pre-primary statement and pre-general electin statement. The pre-primary statement shall cver the perid frm the last day included in the July quarterly statement thrugh the tenth day befre the primary electin. The pre-primary statement is due seven (7) days befre the primary electin. The pre-general statement shall cver the perid frm the last day included in the Octber quarterly! 11

12 PACs statement thrugh the tenth day befre the general electin. Such pre-general statement is due seven (7) days befre the general electin. State electin PACs Shall file with the registry f electin finance a statement f all cntributins received and expenditures made by r n behalf f such cmmittee. TCA (a). Lcal electin PACs Shall file with each cunty electin cmmissin f the cunty where the electin is held a statement f all cntributins received and all expenditures made by r n behalf f the cmmittee. TCA (b). When filed? TCA (c). Quarterly during an electin year, within ten (10) days fllwing the cnclusin f the quarterly reprts ending March 31, June 30, September 30, and January 15. Als required t file pre-primary statement and pre-general electin statement. The pre-primary statement shall cver the perid frm the last day included in the July quarterly statement thrugh the tenth day befre the primary electin. The pre-primary statement is due seven (7) days befre the primary electin. The pre-general statement shall cver the perid frm the last day included in the Octber quarterly statement thrugh the tenth day befre the general electin. Such pre-general statement is due seven (7) days befre the general electin. Treasurers. TCA (e). Each candidate and PAC shall certify the name and address f their treasurer t the registry f electin finance r the cunty electin cmmissin befre they can receive cntributins. A candidate may serve as their wn treasurer. Supplemental semiannual statements. TCA If the final statement f a candidate shws an unexpended balance f cntributins, cntinuing debts and bligatins, r an expenditure deficit, the campaign treasurer shall file with the registry f electin finance r the cunty electin cmmissin, a supplemental statement f cntributins and expenditures. ENFORCEMENT AND PENALTIES Class 1 ffense. TCA (a)(1). A Class 1 ffense is the late filing f any reprt r statement. A Class 1 ffense shall be punishable by a civil penalty f nt mre than $25/day up t a maximum f $750.! 12

13 Fr lcal public ffices, the cunty administratr f electins shall have persnally served upn, r send by return receipt requested mail, an assessment letter t any candidate r cmmittee upn discvery that the due reprt has nt been filed. The administratr shall frward a cpy f such ntice t the registry f electin finance. Fr state public ffices, the registry f electin finance shall have persnally served upn, r send by return receipt requested mail, an assessment letter t any candidate r cmmittee upn the discvery that the due reprt has nt been filed. The civil penalty f $25/day will begin t accrue 5 days after service and shall cntinue t accrue until the reprt is filed r fr 30 days, whichever ccurs first. Assessment letter Fr a Class 1 ffense, the registry shall send an assessment letter t a candidate r cmmittee in a frm sufficient t advise the candidate r cmmittee f the factual basis fr the vilatin, maximum penalty, and the date a respnse t the letter must be filed. Class 2 ffense. TCA (a)(2). A Class 2 ffense means failing t file a reprt within 35 days after service f prcess r receipt f ntice by registered r certified mail an assessment r any ther vilatins. A Class 2 ffense is punishable by a maximum civil penalty f nt mre than $10,000 r 15% f the amunt in cntrversy, if 15% f the amunt in cntrversy is greater than $10,000. N penalty shall be impsed if a candidate fails t list a cntributin but crrects the missin t the registry s satisfactin within 10 business days frm the date the candidate is served prcess by, r receives ntice frm the registry. A candidate shall nly be allwed t crrect 2 missins in ne calendar year and the ttal f the missins shall nt exceed $2,000. Civil Penalty. TCA (c). Treasurer If the civil penalty is nt paid within 30 days after assessment becmes final r by the qualifying deadline fr electin, whichever is earlier, the candidate wing such civil penalty shall be ineligible t qualify fr electin t any state r lcal public ffice until such penalty and csts are paid. Fr any civil penalty levied by the registry against a multicandidate campaign cmmittee, the treasurer f the cmmittee is persnally liable fr the penalty. TCA (f)(1) SINGLE MEASURE CAMPAIGNS Wh must file campaign financial disclsure statements?! 13

14 Reprts f appintment f treasurers and disclsure f cntributins and expenditures are required f: (1) a grup f tw r mre individuals making expenditures t supprt r ppse any state r lcal measure in a referendum, (2) a crpratin r any ther rganizatin making expenditures t supprt r ppse any state r lcal measure in a referendum, (3) any cmmittee, club, assciatin r grup f persns receiving cntributins r making expenditures ttaling mre than tw hundred fifty dllars ($250) in a calendar year t supprt r ppse any state r lcal measure in a referendum. Where must SMCs file reprts? Single-measure plitical campaign cmmittees making expenditures t supprt r ppse a statewide referendum, such as a prpsed amendment t the cnstitutin, must file all reprts with the Registry. Single-measure cmmittees making expenditures t supprt r ppse a lcal measure must file with the lcal cunty electin cmmissin where the electin is held. What must a SMC d t begin a campaign peratin? Plitical Campaign Treasurers. Befre any mnies can be received r spent, single-measure cmmittees must certify the name and address f its plitical treasurer t the Registry f Electin Finance fr a state referendum and t the cunty electin cmmissin fr a lcal referendum. This is accmplished by cmpleting and filing an appintment f plitical treasurer statement. Campaign Bank Accunt. A single-measure cmmittee must pen and maintain a separate bank accunt int which all campaign cntributins are t be depsited. Additinally, all expenditures frm campaign funds must be expended frm this bank accunt. Reprting requirements are the same as candidates and cmmittees. There are n cntributin limits fr SMCs.! 14

15 CONTACT INFORMATION FOR STATE AND LOCAL AGENCIES Tennessee Registry f Electin Finance 404 James Rbertsn Parkway Suite 104 Nashville, TN (615) registry.inf@tn.gv Cmpiled by Isaac Kimes, Esq. Cpyright These materials are cpyrighted and may nt be reprduced withut permissin. FOR FURTHER ASSISTANCE Fr assistance regarding these resurces r fr mre infrmatin abut federal law, please cntact ur attrney ne-n-ne cunseling service: advcacy@afj.rg Telephne: NPLOBBY ( ) Fr assistance regarding state law in Tennessee, please cntact: Isaac Kimes, Esq. isaac.kimes@gmail.cm! 15