N.Y. Election Law § 14-107: Independent expenditure reporting

§ 14-107. Independent expenditure reporting. 1. For purposes of this

article:

(a) "Independent expenditure" means an expenditure made by an

independent expenditure committee in the form of (i) an audio or video

communication via broadcast, cable or satellite, (ii) a written

communication via advertisements, pamphlets, circulars, flyers,

brochures, letterheads or (iii) other published statements, where such

expenditure is conveyed to five hundred or more members of a general

public audience, or in the form of any paid internet or digital

advertisement targeted to fifty or more members of a general public

audience, or in the form of a public-facing website, which: (i)

irrespective of when such communication is made, contains words such as

"vote," "oppose," "support," "elect," "defeat," or "reject," which call

for the election or defeat of the clearly identified candidate, (ii)

refers to and advocates for or against a clearly identified candidate or

ballot proposal on or after January first of the year of the election in

which such candidate is seeking office or such proposal shall appear on

the ballot, or (iii) within sixty days before a general or special

election for the office sought by the candidate or thirty days before a

primary election, includes or references a clearly identified candidate.

An independent expenditure shall not include communications where such

candidate, the candidate's political committee or its agents, a party

committee or its agents, or a constituted committee or its agents or a

political committee formed to promote the success or defeat of a ballot

proposal or its agents, did authorize, request, suggest, foster or

cooperate in such communication.

(b) Independent expenditures do not include expenditures in connection

with:

(i) a written news story, commentary, or editorial or a news story,

commentary, or editorial distributed through the facilities of any

broadcasting station, cable or satellite unless such publication or

facilities are owned or controlled by any political party, political

committee or candidate; or

(ii) a communication that constitutes a candidate debate or forum; or

(iii) internal communication by members to other members of a

membership organization of not more than five hundred members, for the

purpose of supporting or opposing a candidate or candidates for elective

office, provided such expenditures are not used for the costs of

campaign material or communications used in connection with

broadcasting, telecasting, newspapers, magazines, or other periodical

publication, billboards, or similar types of general public

communications; or

(iv) internal communications by members to other members of a

membership organization of not more than five hundred members or

communications by a corporation organized for charitable purposes

pursuant to §501(c)(3) of the internal revenue code, within sixty days

before a general or special election for the office sought by the

candidate or thirty days before a primary election, that includes or

references a clearly identified candidate but does not otherwise qualify

as an independent expenditure under this section.

(v) a communication published on the Internet, unless the

communication is a paid advertisement or a public-facing website paid

for, hosted, and/or operated by a political committee.

(c) An independent expenditure committee shall not include payments or

expenditures made by a party or constituted committee that is required

to file disclosure reports under this chapter.

(d) Independent expenditures shall not include payments or

expenditures where coordination occurs in the creation, formation, or

operation of the independent expenditure committee making the payment or

expenditure.

Coordination shall include:

(i) The candidate or the candidate's authorized committee, or an agent

of the candidate or candidate's authorized committee, participated in

the creation or formation of the independent expenditure committee

within two years of the general election, primary or special election in

which the candidate is a candidate for nomination or election and the

payment or expenditure made is for the benefit of that candidate.

(ii) The candidate or an agent of the candidate appears at any

fundraising event hosted by an independent expenditure committee, or its

agent, making a payment or expenditure that benefits that candidate

within two years of the general election, primary or special election in

which the candidate is a candidate for nomination or election.

(iii) The independent expenditure committee making the payment or

expenditure, or its agent, employed or retained an individual, other

than an individual described in subparagraph (viii) of this paragraph,

who was employed by the candidate, the candidate's authorized committee

or an agent of the candidate or has held a policymaking,

non-administrative position in the office of the candidate's elected

office within two years of the general election, primary or special

election in which the candidate is a candidate for nomination or

election, and the payment or expenditure is made for the benefit of that

candidate.

(iv) The independent expenditure committee making the payment or

expenditure, or its agent, is a member of the candidate's immediate

family or is established, directed, or managed by a member of the

immediate family of the candidate, and the payment or expenditure is

made for the benefit of that candidate.

(v) The independent expenditure committee making the payment or

expenditure benefiting the candidate, republishes, disseminates, or

distributes, in whole or in part, any video, audio, written, or other

campaign-related material prepared by the candidate or the candidate's

authorized committee or by an agent of the candidate or the candidate's

authorized committee. This paragraph shall not apply if the independent

expenditure committee making the payment or expenditure obtains the

communication or materials from a publicly available source.

(vi) The candidate or the candidate's authorized committee, or an

agent of the candidate or the candidate's authorized committee, shares

or rents space for a campaign-related purpose with or from the

independent expenditure committee, or its agent, making the payment or

expenditure benefitting the candidate.

(vii) The independent expenditure committee, or its agent, making the

payment or expenditure benefitting the candidate has participated in

strategic discussions with the candidate, the candidate's authorized

committee, or an agent of the candidate or the candidate's authorized

committee within two years of the general election, primary or special

election in which the candidate is a candidate for nomination or

election. Discussions shall be deemed strategic if information about the

candidate's or opponent's electoral campaign plans, projects, or

activities that is not obtained from a publicly available source is

conveyed to the independent expenditure committee, or its agent, making

the payment or expenditure. This paragraph shall only apply to

discussions occurring after the independent expenditure committee is

formed or, one week after the candidate has been certified for that

election, whichever occurs first.

(viii) The independent expenditure committee, or its agent, making the

payment or expenditure benefitting the candidate, and the candidate or

the candidate's authorized committee knowingly retain the same

individual or entity to provide professional campaign services within

two years of the general election, primary or special election in which

the candidate is a candidate for nomination or election, and the

professional campaign services provider discloses strategic information

regarding one party with the other party. Information shall be deemed

strategic if it relates to either party's respective campaign or

independent expenditure plans, projects, or activities that are not

obtained from a publicly available source. This subparagraph shall not

prohibit a candidate, a candidate's authorized committee, or an agent of

the candidate or the candidate's authorized committee from retaining the

same professional campaign services provider as the independent

expenditure committee, or its agent, making the payment or expenditure

benefitting the candidate upon the professional campaign services

provider entering into a confidentiality agreement with both parties

expressly stating that it will not disclose strategic information

regarding each party with the other party.

(ix) The independent expenditure committee, or its agent, making the

payment or expenditure benefitting the candidate, utilizes strategic

information or data related to the candidate, that is not from a

publicly available source and is not otherwise available by

subscription, from an individual who has been previously compensated,

reimbursed or retained by the candidate as a consultant, political,

media or fundraising advisor, vendor or contractor within two years of

the general election, primary or special election in which the candidate

is a candidate for nomination or election.

(e) The following shall not be coordination:

(i) A candidate's or a party or constituted committee's response to an

inquiry about that candidate's or party or constituted committee's

positions on legislative or policy issues.

(ii) A public communication in which a candidate is clearly identified

only in his or her capacity as the owner or operator of a business that

existed prior to the candidacy is not a coordinated communication with

respect to the clearly identified candidate if: (A) The medium, timing,

content, and geographic distribution of the public communication are

consistent with public communications made prior to the candidacy; and

(B) The public communication does not promote, support, attack, or

oppose that candidate or another candidate in their capacity as

candidates who seeks the same office as that candidate.

(f) For purposes of this section, the term "immediate family" means

spouse, child, parent, grandparent, brother, half-brother, sister, or

half-sister of the candidate, and the spouses of such persons.

(g) For purposes of this section, "agent" means a person authorized by

the candidate or the candidate's authorized committee, who acts on

behalf of or at the direction of a candidate or the candidate's

authorized committee; or a party committee or constituted committee

acting on behalf of a candidate; or a person authorized by an

independent expenditure committee who acts on behalf of or at the

direction of such committee.

2. Whenever any person makes an independent expenditure, such

communication shall, in a manner consistent with section 14-106 of this

article, clearly state the name of the person who paid for, or otherwise

published or distributed the communication and state, with respect to

communications regarding candidates, that the communication was not

expressly authorized or requested by any candidate, or by any

candidate's political committee or any of its agents; provided, however,

that paragraphs three and four of section 14-106 of this article shall

not apply to the disclosure requirements under this section.

3. Any person prior to making any independent expenditure shall first

register with the state board of elections as a political committee and

as an independent expenditure committee in conformance with this article

provided, however, that no foreign national, government, instrumentality

or agent may register as an independent expenditure committee for the

purpose of making independent expenditures in any state or local

election. Such person shall comply with all disclosure obligations

required for political committees by law and shall provide the following

additional information upon registration:

(a) Where the person making the statement is an individual, the name,

address, occupation and employer of the person.

(b) Where the person making the statement is an entity, the name and

employer of any individual who exerts operational or managerial

influence or control over the entity, as well as any salaried employee

of the entity. The disclosures required by this paragraph shall include

the name of at least one natural person.

(c) Identification of individuals named in paragraphs (a) and (b) of

this subdivision who have, during the two-year period before the

statement is filed, been employed or retained as a political, media, or

fundraising adviser or consultant for a candidate, any entity directly

controlled by a candidate, or any party committee or constituted

committee, or have held a formal position in the office of a candidate's

elected office, or any party committee or constituted committee, and the

name of the relevant employer.

(d) Identification of individuals named in paragraphs (a), (b) and (c)

of this paragraph who are members of a candidate's immediate family.

(e) The information provided pursuant to this subdivision shall be

updated within twenty-four hours of any change in ownership or control

of any registered entity.

4. (a) Required disclosures. (i) Any independent expenditure

committee who has registered pursuant to subdivision three of this

section shall disclose to the state board of elections electronically,

once a week on Monday any contribution to such committee of one thousand

dollars or more, any expenditures, except paid internet and digital

advertisements, made by such committee over five thousand dollars, and

any independent expenditure in the form of a paid internet or digital

advertisement over five hundred dollars made during the reporting

period.

(ii) Any independent expenditure committee who has registered with the

state board of elections pursuant to subdivision three of this section

shall disclose to the state board of elections electronically, within

twenty-four hours, any contribution to such independent expenditure

committee of one thousand dollars or more or expenditure made by such

committee over five thousand dollars made within thirty days before any

primary, general, or special election.

(b) The disclosures required by paragraph (a) of this subdivision

shall include, in addition to any other information required by law:

(i) the name, address, occupation and employer of the person making

the statement;

(ii) For each expenditure or payment made: (1) the dollar amount paid

for each independent expenditure, the name and address of the person or

entity receiving the payment, the date the payment was made and a

description of the independent expenditure;

(2) the election to which the independent expenditure pertains and the

name of the clearly identified candidate or the ballot proposal

referenced and whether the candidate or ballot proposal is supported or

opposed; and

(3) A list of all expenditures made by and liabilities incurred for

services rendered during the relevant reporting period.

(iii) For each contribution received the name, address, occupation and

employer of any person providing a contribution, gift, loan, advance or

deposit of one thousand dollars or more for the independent expenditure,

or the provision of services for the same and the date it was given.

5. A copy of all political communications paid for by the independent

expenditure, including but not limited to broadcast, cable or satellite

schedules and scripts, advertisements, pamphlets, circulars, flyers,

brochures, letterheads and other printed matter and statements or

information conveyed to one thousand or more members of a general public

audience by computer or other electronic devices, and paid internet or

digital advertisements, shall be filed with the state board of elections

with the statements required by this section.

5-a. The state board of elections shall maintain and make available

online for public inspection in a machine readable format, a complete

record of any independent expenditure in the form of a paid internet or

digital advertisement required to be filed under subdivision five of

this section. The record shall be maintained for a period no less than

five years from the date of filing and contain a digital copy of the

independent expenditure and the information provided on the registration

form of the independent expenditure committee making such expenditure

pursuant to paragraphs (a) and (b) of subdivision three of this section.

The state board of elections shall promulgate rules necessary to comply

with the provisions of this subdivision which shall be effective no

later than one hundred twenty days after the effective date of this

subdivision.

6. Every statement required to be filed pursuant to this section shall

be filed electronically with the state board of elections.

7. The state board of elections shall promulgate regulations with

respect to the statements required to be filed by this section and shall

provide forms suitable for such statements.

8. (a) All criminal liability related to this section shall require

knowing and willful violations in accordance with section 14-126 of this

article.

(b) A knowing and willful violation of the provisions of subdivisions

three and four of this section shall subject the person to a civil

penalty equal to five thousand dollars or the cost of the communication,

whichever is greater, in a special proceeding or civil action brought by

the board.