Campaign finance: advertising; transparency requirements for paid political advertisements; provide…

Full Bill Text

HOUSE BILL NO. 6439 A bill to amend 1976 PA 388, entitled "Michigan campaign finance act," by amending section 15 (MCL 169.215), as amended by 2015 PA 269, and by adding section 59a. the people of the state of michigan enact: Sec. 15. (1) The secretary of state shall do all of the following: (a) Make available through his or her the secretary of state's offices, and furnish to county clerks, appropriate forms, instructions, and manuals required by this act. (b) Develop a filing, coding, and cross-indexing system for the filing of required reports and statements consistent with this act, and supervise the implementation of the filing systems by the clerks of the counties. (c) Receive all statements and reports required by this act to be filed with the secretary of state. (d) Prepare forms, instructions, and manuals required under this act. (e) Promulgate rules and issue declaratory rulings to implement this act in accordance with the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. (f) Upon On receipt of a written request and the required filing, waive payment of a late filing fee if the request for the waiver is based on good cause and accompanied by adequate documentation. One or more of the following reasons constitute good cause for a late filing fee waiver: ( i ) The incapacitating physical illness, hospitalization, accident involvement, death, or incapacitation for medical reasons of a person an individual required to file, a person an individual whose participation is essential to the preparation of the statement or report, or a member of the immediate family of these persons. individuals. ( ii ) Other unique, unintentional factors beyond the filer's control not stemming from a negligent act or nonaction so that a reasonably prudent person would excuse the filing on a temporary basis. These factors include the loss or unavailability of records due to a fire, flood, theft, or similar reason and difficulties related to the transmission of the filing to the filing official, such as exceptionally bad weather or strikes involving transportation systems. (2) A The secretary of state shall issue a declaratory ruling shall be issued under this section only if the person requesting the ruling has provided a reasonably complete statement of facts necessary for the ruling or if the person requesting the ruling has, with the permission of the secretary of state, supplied supplemental facts necessary for the ruling. A request for a declaratory ruling that is submitted to the secretary of state shall must be made available for public inspection within not later than 48 hours after its receipt. An interested person may submit written comments regarding the request to the secretary of state within not later than 10 business days after the date the request is made available to the public. Within Not later than 45 business days after receiving a declaratory ruling request, the secretary of state shall make a proposed response available to the public. An interested person may submit written comments regarding the proposed response to the secretary of state within not later than 5 business days after the date the proposal is made available to the public. Except as otherwise provided in this section, the secretary of state shall issue a declaratory ruling within not later than 60 business days after a request for a declaratory ruling is received. If the secretary of state refuses to issue a declaratory ruling, the secretary of state shall notify the person making the request of the reasons for the refusal and shall issue an interpretative statement providing an informational response to the question presented within the same time limitation applicable to a declaratory ruling. A declaratory ruling or interpretative statement issued under this section shall must not state a general rule of law, other than that which is stated in this act, until the general rule of law is promulgated by the secretary of state as a rule under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, or under judicial order. (3) Under extenuating circumstances, the secretary of state may issue a notice extending for not more than 30 business days the period during which the secretary of state shall respond to a request for a declaratory ruling. The secretary of state shall not issue more than 1 notice of extension for a particular request. A person requesting a declaratory ruling may waive, in writing, the time limitations provided by this section. (4) The secretary of state shall make available to the public an annual summary of the declaratory rulings and interpretative statements issued by the secretary of state. (5) A person may file with the secretary of state a complaint that alleges a violation of this act. Within Not later than 5 business days after a complaint that meets the requirements of subsection (6) is filed, the secretary of state shall give notice to the person against whom the complaint is filed. The notice shall must include a copy of the complaint. Within Not later than 15 business days after this notice is mailed, the person against whom the complaint was filed may submit a response to the secretary of state. The secretary of state may extend the period for submitting a response an additional 15 business days for good cause. The secretary of state shall provide a copy of a response received to the complainant. Within Not later than 10 business days after the response is mailed, the complainant may submit a rebuttal statement to the secretary of state. The secretary of state may extend the period for submitting a rebuttal statement an additional 10 business days for good cause. The secretary of state shall provide a copy of the rebuttal statement to the person against whom the complaint was filed. (6) A complaint filed under subsection (5) shall must satisfy all of the following requirements: (a) Be signed by the complainant. (b) State the name, address, and telephone number of the complainant. (c) Include the complainant's certification that, to the best of the complainant's knowledge, information, and belief, formed after a reasonable inquiry under the circumstances, each factual contention of the complaint is supported by evidence. However, if, after a reasonable inquiry under the circumstances, the complainant is unable to certify that certain factual contentions are supported by evidence, the complainant may certify that, to the best of his or her the complainant's knowledge, information, or belief, there are grounds to conclude that those specifically identified factual contentions are likely to be supported by evidence after a reasonable opportunity for further inquiry. (7) The secretary of state shall develop a form that satisfies the requirements of subsection (6) and may be used for the filing of complaints. (8) A person who files a complaint with a false certificate under subsection (6)(c) is responsible for a civil violation of this act. A person may file a complaint under subsection (5) alleging that another person has filed a complaint with a false certificate under subsection (6)(c). (9) The secretary of state shall investigate the allegations under the rules promulgated under this act. If the violation involves the secretary of state, the immediate family of the secretary of state, or a campaign or committee with which the secretary of state is connected, directly or indirectly, the secretary of state shall refer the matter to the attorney general to determine whether a violation of this act has occurred. (10) No Not later than 45 business days after receipt of a rebuttal statement submitted under subsection (5), or if no response or rebuttal is received under subsection (5), the secretary of state shall post on the secretary of state's Internet website whether or not there may be reason to believe that a violation of this act has occurred. When the secretary of state determines whether there may be reason to believe that a violation of this act occurred or did not occur or determines to terminate its proceedings, the secretary of state shall, within not later than 30 days of after that determination, post on the secretary of state's Internet website any complaint, response, or rebuttal statement received under subsection (5) regarding that violation or alleged violation and any correspondence that is dispositive of that violation or alleged violation between the secretary of state and the complainant or the person against whom the complaint was filed. If the secretary of state determines that there may be reason to believe that a violation of this act occurred, the secretary of state shall endeavor to correct the violation or prevent a further violation by using informal methods such as a conference, conciliation, or persuasion, and may enter into a conciliation agreement with the person involved. Unless violated, a conciliation agreement is a complete bar to any further civil or criminal action with respect to matters covered in the conciliation agreement. The secretary of state shall, within not later than 30 days after a conciliation agreement is signed, post that agreement on the secretary of state's Internet website. If, after 90 business days, the secretary of state is unable to correct or prevent further violation by these informal methods, the secretary of state shall do either of the following: (a) Refer the matter to the attorney general for the enforcement of any criminal penalty provided by this act. (b) Commence a hearing as provided in subsection (11) for enforcement of any civil violation. (11) The secretary of state may commence a hearing to determine whether a civil violation of this act has occurred. The hearing shall must be conducted in accordance with the procedures set forth in chapter 4 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.271 to 24.287. 24.288. If after a hearing the secretary of state determines that a violation of this act has occurred, the secretary of state may issue an order requiring the person to pay a civil fine not more than triple the amount of the improper contribution or expenditure plus not more than $1,000.00 for each violation. (12) A final decision and order issued by the secretary of state is subject to judicial review as provided by chapter 6 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.301 to 24.306. The secretary of state shall deposit a civil fine imposed under this section in the general fund. The secretary of state may bring an action in circuit court to recover the amount of a civil fine. (13) When a report or statement is filed under this act, the secretary of state shall review the report or statement and may investigate an apparent violation of this act under the rules promulgated under this act. If the secretary of state determines that there may be reason to believe a violation of this act has occurred and the procedures prescribed in subsection (10) have been complied with, the secretary of state may refer the matter to the attorney general for the enforcement of a criminal penalty provided by this act, or commence a hearing under subsection (11) to determine whether a civil violation of this act has occurred. (14) No Not later than 60 business days after a matter is referred to the attorney general for enforcement of a criminal penalty, the attorney general shall determine whether to proceed with enforcement of that penalty. (15) Unless otherwise specified in this act, a person who violates a provision of this act is subject to a civil fine of not more than $1,000.00 for each violation. A civil fine is in addition to, but not limited by, a criminal penalty prescribed by this act. (16) In addition to any other sanction provided for by this act, the secretary of state may require a person who files a complaint with a false certificate under subsection (6)(c) to do either or both of the following: (a) Pay to the secretary of state some or all of the expenses incurred by the secretary of state as a direct result of the filing of the complaint. (b) Pay to the person against whom the complaint was filed some or all of the expenses, including, but not limited to, reasonable attorney fees incurred by that person in proceedings under this act as a direct result of the filing of the complaint. (17) Except as otherwise provided in section 57, there There is no private right of action, either in law or in equity, under this act. Except as otherwise provided in section 57, the The remedies provided in this act are the exclusive means by which this act may be enforced and by which any harm resulting from a violation of this act may be redressed. The criminal penalties provided by this act may only be enforced by the attorney general and only upon on referral by the secretary of state as provided under subsection (10) or (13). (18) The secretary of state may waive the filing of a campaign statement required under section 33, 34, or 35 if the closing date of the particular campaign statement falls on the same or a later date as the closing date of the next campaign statement filed by the same person, or if the period that would be otherwise covered by the next campaign statement filed by the same person is 10 days or less. (19) The secretary of state may prioritize review of complaints of potential violations in accordance with section 59a. The secretary of state may modify the complaint review and decision procedures under this section in accordance with section 59a. (20) (19) The clerk of each county shall do all of the following: (a) Make available through the county clerk's office the appropriate forms, instructions, and manuals required by this act. (b) Under the supervision of the secretary of state, implement the filing, coding, and cross-indexing system prescribed for the filing of reports and statements required to be filed with the county clerk's office. (c) Receive all statements and reports required by this act to be filed with the county clerk's office. (d) Upon On written request, waive the payment of a late filing fee if the request for a waiver is based on good cause as prescribed in subsection (1)(f). Sec. 59a. (1) Except as otherwise provided in this subsection, a covered political advertisement containing a record-based factual claim must include a clear and conspicuous source disclosure that directly links to the official public record that supports the claim. A disclosure that links directly to an official legislative website maintained by this state is presumed to be compliant with this section. The secretary of state may approve an alternative to a source disclosure for a covered political advertisement whose size or technological format makes compliance with this section unreasonable. (2) A covered political advertisement must not state or imply that a legislator voted for or against a bill unless the advertisement cites the legislator's final passage vote on the bill. If a procedural or preliminary action is referenced, the covered political advertisement must clearly state that the action was not final passage and disclose the final passage outcome or state that no final passage vote occurred, as applicable. (3) A person that receives written notice of an alleged omission or clerical or formatting error may correct the advertisement without a civil fine if the person ceases further dissemination of the noncompliant version and begins a good-faith correction not later than 48 hours after notice. If notice is received during the 60 days before an election, the person must begin a good-faith correction not later than 24 hours after notice. A cure under this subsection is unavailable for any of the following: (a) The mischaracterization of a vote. (b) The omission of a final passage vote. (c) A materially deceptive disclosure. (4) This section does not apply to any of the following: (a) A statement of opinion, commentary, satire, parody, or editorial analysis that does not purport to assert a record-based factual claim. (b) News, editorial, or commentary content disseminated by a broadcasting station, streaming service, newspaper, magazine, periodical, or online publication unless the content is a paid political advertisement. (c) A live debate, interview, speech, press conference, legislative proceeding, or other live event, or an unedited recording of that event, unless compensation was paid specifically to disseminate the recording as a covered political advertisement. (d) A communication by an individual acting independently and without compensation that is not paid for, sponsored, or placed by a candidate, committee, political party, political organization, corporation, labor organization, or other person. (5) Nothing in this section prohibits a covered political advertisement from accurately discussing a committee vote, amendment, substitute, motion, conference report, or other legislative action merely because that action was not final passage. (6) The secretary of state may prioritize review under section 15 of covered political advertisements disseminated during the 60 days before an election. The review by the secretary of state of a potential violation of this section is limited to potential violations of disclosure requirements and the verification of the official public record. The review by the secretary of state of a potential violation of this section must not include a determination of the truth, fairness, or political meaning of opinions, inferences, characterizations, predictions, or policy arguments. If the secretary of state determines that there is reason to believe a violation of this section is occurring or is about to occur and that dissemination before completion of the process under section 15 is likely to cause irreparable harm that cannot reasonably be remedied after the election, the secretary of state may bring a civil action in a court of appropriate jurisdiction for appropriate injunctive relief. The secretary of state may refer questions regarding verification of legislative records to an appropriate nonpartisan legislative entity or the office of the house or senate clerk for advisory confirmation of the official public record. The advisory confirmation must be limited to the content and status of the official public record. (7) Except as otherwise provided in subsection (8), a person who violates this section may be ordered to do any of the following: (a) Correct or cease further dissemination of the advertisement that violates this section. (b) Provide a corrective source disclosure in substantially the same medium and to substantially the same audience, if reasonably practicable. (c) Pay a civil fine of not more than the documented cost attributable to producing and disseminating the advertisement that violates this section or $10,000.00, whichever is less. The person responsible for the advertisement shall preserve and, on request, provide records reasonably necessary to determine the attributable cost. (8) If a person commits a second or subsequent violation of this section not later than 4 years after the most recent violation, knowingly commits a violation of this section, or commits a violation of this section during the 60 days before an election, the person who violates this section is subject to a civil fine of not more than 3 times the documented cost attributable to producing and disseminating the advertisement that violated this section or $50,000.00, whichever is less. In determining the amount of the civil fine, the secretary of state shall consider the person's culpability, the scope and duration of dissemination, steps taken to prevent or correct the violation, prior violations, and ability to pay. (9) As used in this section: (a) "Covered political advertisement" means any paid or sponsored communication disseminated through any medium, including print, mailers, broadcast television, cable, radio, satellite, digital or online advertising, video streaming platforms, social media platforms, websites, mass text messages, mass emails, or compensated social media influencer content, that is intended to influence the nomination or election of a candidate or the qualification, passage, or defeat of a ballot question. (b) "Final passage vote" means the recorded roll call vote taken by the full legislative body on the final version of a bill or resolution that determines whether the measure is passed in the form before the body. Final passage vote includes a recorded vote on a conference report or other final legislative action when the vote determines final passage in that body. (c) "Knowingly" means having actual knowledge or a reckless disregard as to whether a disclosure or claim is materially deceptive. (d) "Materially deceptive disclosure" means a disclosure or presentation that is fabricated, altered, misleading by omission, misrepresents a procedural or preliminary action as final passage, selectively presents portions of an official public record such that a reasonable person would be misled, attributes a vote to the wrong official, or links to a record that does not address the claim made in the advertisement. (e) "Official public record" means a record created, received, maintained, or published by a federal, state, or local governmental body during the body's official duties and made publicly accessible by the body. (f) "Procedural or preliminary action" means a vote, motion, amendment, substitute, or committee action occurring before final passage. (g) "Record-based factual claim" means a statement that purports to state a verifiable fact derived from an official public record, including a claim regarding a final passage vote, procedural or preliminary action, sponsorship, committee action, or executive action. A record-based factual claim does not include a prediction, inference, policy characterization, or statement about expected effect of legislation or governmental action. (h) "Social media influencer" means an individual who, in exchange for compensation or another thing of value, disseminates political content intended to influence voters on behalf of or at the direction of a candidate, committee, or political organization. (i) "Source disclosure" means a disclosure that includes the bill or resolution number, the chamber, the roll call identifier, the date of the action, and a direct hyperlink or QR code linking to the official public record maintained by the governmental body responsible for that record. If a covered political advertisement is audio only, or in a form in which a visual link cannot reasonably be displayed, the disclosure may replace the direct hyperlink or QR code with a short internet address or direct listeners to a website that links directly to the relevant official public record. If a covered political advertisement is in a constrained format, including, but not limited to, a text message, a hyperlink or short internet link containing the required information under this subdivision is sufficient. A third-party summary, commentary, excerpt, or secondary website does not constitute a source disclosure.