HB 1683-FN – AS INTRODUCED
2012 SESSION
HOUSE BILL 1683-FN
AN ACT relative to political advertising by business organizations.
This bill requires the filing of a statement with the secretary of state before a corporation, limited liability company, or limited partnership engages in political advertising or advocacy advertising in this state.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2456
03/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to political advertising by business organizations.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Authority for Political and Advocacy Advertising; Voluntary Corporations. Amend RSA 292 by inserting after section 31 the following new subdivision:
Authority for Political and Advocacy Advertising
292:32 Political Advertising and Advocacy Advertising. In this subdivision:
I. “Advocacy advertising” shall mean any communication during an election cycle that clearly identifies by name, image, or voice of, a candidate for elective office.
II. “Candidate” means any person who has filed a declaration of candidacy pursuant to RSA 655.
III. “Commencement of political advertising and/or advocacy advertising” means the first dissemination during an election cycle by an organization of a communication containing political advertisement or advocacy advertisement.
IV. “Communication” means any publication in any newspaper or other periodical, broadcasting on radio or television, placement on any billboards, automated telephone calls, or postcards or other direct mailing sent to the general public. “Communication” shall exclude:
(a) Any direct contact by an organization or on behalf of an organization to an elected official who is a candidate, including, but not limited to, contact by telephone, letter, or email;
(b) Public testimony before a legislative committee or subcommittee, or before any entity subject to RSA 91-A, the right-to-know law, or a written document filed in the course of a public proceeding or any other communication that is made on the record in a public proceeding;
(c) Communication made in a speech or other public forum;
(d) Communications by an organization during an election cycle which, excluding normal costs of operating overhead and salaries and benefits paid to employees of the organization, cost less than $10,000 in the aggregate;
(e) Free communication by an organization, including but not limited to letters to the editor, opinion columns, press releases, any internet communication, including emails and websites, except internet content placed for a fee on a website not owned by the organization, or other forums generally available to the public at large at no charge;
(f) Any direct communication by an organization made only to its members and/or current or former employees of the organization and/or their family members by direct mail, email, telephone, or an internet site maintained by an organization in the ordinary course of business;
(g) Print or electronic newsletters sent in the regular course of business to members and/or current or former employees of the organization, and/or their family members, or otherwise not distributed to the public at large; and
(h) Holding public or private events, including events attended by a candidate, the distribution of printed materials at such an event, and the printing and distribution of invitations for such an event.
V. “Election cycle” shall mean that period commencing 60 days prior to the holding of a primary and ending at midnight of the day of the next general election, unless in the event of a special election, in which event “election cycle” shall mean that period commencing 21 days prior to the special general election and ending at midnight of the day of the special general election.
VI. “Organization” means any voluntary corporation or other entity formed under this chapter.
VII. “Political advertising” means any communication which expressly or implicitly advocates the success or defeat of any party, measure, or person at any election.
292:33 Identification and Filing with New Hampshire Secretary of State.
I. All political advertising and/or advocacy advertising by an organization shall indicate the name of the organization and the president or chief executive officer shall sign his or her name and address. The signature and identification shall comply with the requirements of RSA 664:14, III and IV. No later than 3 business days after commencing any political advertising or advocacy advertising, except, if such advertising commences within 4 days before the day of an election, then no later than one business day after such commencement, any voluntary corporation or association, domestic or foreign engaging in political advertising or advocacy advertising, or any other organization that claims exemption from federal taxation under section 501 or any other section of the Internal Revenue Code, and any amendments thereto, excluding any organization which has obtained an exemption under section 501(c)(3) of the Internal Revenue Code and also excluding any political committee registered with the secretary of state pursuant to RSA 664, shall file a statement with the New Hampshire secretary of state, corporate division, that the organization is engaging in political advertising and/or advocacy advertising. The organization shall attach to the statement a vote of the board of directors or board of trustees of the organization, as applicable, certified as true and complete by the secretary of the organization, authorizing:
(a) The organization to engage in political advertising and/or advocacy advertising in the state of New Hampshire; and
(b) The president or the executive director of the organization to expend the organization’s funds or other assets on political advertising and/or advocacy advertising.
II. Only one statement needs to be filed in each election cycle. The statement shall be in substance the following form:
______________________, of __________________________, ______________ County, State of ____________________, is engaging in [check the appropriate box or boxes]:
□ Political Advertising
□ Advocacy Advertising
in the state of New Hampshire. Attached hereto is a true and complete copy of a vote of the board of (choose one) directors/trustees of ____________ authorizing it to engage in political advertising or advocacy advertising in the state of New Hampshire, and further authorizing the organization’s president or executive director to expend the organization’s funds or other assets for political advertising or advocacy advertising.
____________________________________
[Duly Authorized Secretary of __________]
292:34 Filing Fee. There shall be no filing fee required by the secretary of state with any registration under this subdivision; provided, however, that the organization shall pay any other fees required to do business in the state of New Hampshire.
292:35 Penalties. A violation of this subdivision shall result in a civil penalty of up to $250 per violation. Any person may make complaint in writing to the attorney general of any violation of this subdivision. If the attorney general determines that a provision of this subdivision has been violated, he or she may:
I. Issue an order requiring the violator to cease and desist from its violation.
II. If the attorney general’s order is not obeyed, the attorney general or designee may petition to the Merrimack County superior court for an order of enforcement, and to enjoin any further political advertising or advocacy advertising until the appropriate statement has been filed.
III. Prosecute to final judgment through his or her designee if sufficient cause for such prosecution is found.
292:36 Private Right of Action. Any candidate or opposing candidate of a candidate who is referred to in advocacy advertising or political advertising may have a private right of action to enforce the provisions of this subdivision by filing a petition with the Merrimack County superior court requesting an injunction to enjoin further political advertising or advocacy advertising until the required statements have been filed with the secretary of state, corporate division. Upon a finding by the superior court that the required statements have not been filed, and the ordering of any enforcement or injunctive relief, the complaining candidate shall be entitled to attorney’s fees and costs. Upon a finding by the superior court that the complaint by the candidate was frivolous or not filed in good faith, the organization shall be entitled to its attorney’s fees and costs.
2 New Subdivision; Corporate Approval for Political and Advocacy Advertising; Business Corporations. Amend RSA 293-A by inserting after section 7.47 the following new subdivision:
Corporate Approval for Political and Advocacy Advertising
293-A:7.48 Political Advertising and Advocacy Advertising. In this subdivision:
(a) “Advocacy advertising” shall mean any communication during an election cycle that clearly identifies by name, image, or voice of, any candidate for elective office.
(b) “Candidate” means any person who has filed a declaration of candidacy pursuant to RSA 655.
(c) “Commencement of political advertising and/or advocacy advertising” means the first dissemination during an election cycle by an organization of a communication containing political advertisement or advocacy advertisement.
(d) “Communication” means any publication in any newspaper or other periodical, broadcasting on radio or television, placement on any billboards, automated telephone calls, or postcards or other direct mailing sent to the general public. “Communication” shall exclude:
(1) Any direct contact by or on behalf of a corporation to an elected official who is a candidate, including, but not limited to, contact by telephone, letter, or email;
(2) Public testimony before a legislative committee or subcommittee, or before any entity subject to RSA 91-A, the right-to-know law, or a written document filed in the course of a public proceeding or any other communication that is made on the record in a public proceeding;
(3) Communication made in a speech or other public forum;
(4) Free communication by a corporation, including but not limited to letters to the editor, opinion columns, press releases, any internet communication, including emails and websites, except internet content placed for a fee on a website not owned by the corporation, or other forums available to the public at large at no charge;
(5) Communications by a corporation during an election cycle which, excluding normal costs of operating overhead and salaries and benefits paid to employees of the corporation, cost less than $10,000 in the aggregate;
(6) Any direct communication by a corporation made only to shareholders and/or current or former employees of the corporation, and/or their family members by direct mail, email, telephone, or an internet site maintained by a corporation in the ordinary course of business;
(7) Print or electronic newsletters sent in the regular course of business to shareholders and/or current or former employees of the corporation, and/or their family members, or otherwise not distributed to the public at large; and
(8) Holding public or private events, including events attended by a candidate, the distribution of printed material at events, and the printing and distribution of invitations for such an event.
(e) “Election cycle” shall mean that period commencing 60 days prior to the holding of a primary and ending at midnight of the day of the next general election, unless in the event of a special election, in which event “election cycle” shall mean that period commencing 21 days prior to the special general election and ending at midnight of the day of the special general election.
(f) “Political advertising” means any communication which expressly or implicitly advocates the success or defeat of any party, measure, or person at any election.
293-A:7.49 Identification and Filing with New Hampshire Secretary of State. All political advertising and/or advocacy advertising shall indicate the name of the corporation and the president or chief executive officer shall sign his or her name and address. The signature and identification shall comply with the requirements of RSA 664:14, III and IV. No later than 3 business days after commencing any political advertising or advocacy advertising, except, if such advertising commences within 4 days before the day of an election, then no later than one business day after such commencement, any corporation, domestic or foreign, engaging in political advertising or advocacy advertising in the state of New Hampshire, shall file a statement with the New Hampshire secretary of state, corporate division, that the corporation is engaging in either political advertising or advocacy advertising. The corporation shall attach to the statement a vote of the board of directors of the corporation, certified as true and complete by the secretary of the corporation, authorizing the president of the corporation to expend corporate funds or other corporate assets for the purpose of paying for political advertising and/or advocacy advertising. Only one statement needs to be filed in each election cycle. The statement shall be in substance the following form:
______________________, of __________________________, ______________ County, State of ____________________, is engaging in [check the appropriate box or boxes]:
□ Political Advertising
□ Advocacy Advertising
in the state of New Hampshire. Attached hereto is a true and complete copy of a vote of the board of directors of the corporation authorizing the president of the corporation to expend corporate funds or other assets for political advertising or advocacy advertising.
____________________________________
[Duly Authorized Secretary of __________]
293-A:7.50 Filing Fee. There shall be no filing fee required by the secretary of state with any registration under this subdivision; provided, however, that the corporation shall pay any other fees required to do business in the state of New Hampshire.
293-A:7.51 Penalties. A violation of RSA 293-A:7.49 shall result in a civil penalty of up to $250 per violation. Any candidate or voter may make a complaint in writing to the attorney general of any violation of this subdivision. If the attorney general determines that a provision of this subdivision has been violated, he or she may:
(a) Issue an order requiring the violator to cease and desist from its violation.
(b) If the attorney general’s order is not obeyed, petition to the Merrimack County superior court for an order of enforcement, and to enjoin any further political advertising or advocacy advertising until the appropriate statement has been filed.
(c) Prosecute to final judgment through his or her designee if sufficient cause for such prosecution is found.
293-A:7.52 Private Right of Action. Any candidate or opposing candidate of a candidate who is referred to in advocacy advertising or political advertising, may have a private right of action to enforce the provisions of this subdivision by filing a petition with the Merrimack County superior court requesting an injunction to enjoin further political advertising or advocacy advertising until the required statements have been filed with the secretary of state, corporate division. Upon a finding by the superior court that the required statements have not been filed, and the ordering of injunctive relief, the complaining candidate shall be entitled to attorney’s fees and costs. Upon a finding by the superior court that the complaint by the candidate was frivolous, or not filed in good faith, the corporation shall be entitled to its attorney’s fees and costs.
3 Political Advertising and Advocacy Advertising; Limited Partnerships. Amend RSA 304-B by inserting after section 64 the following new subdivision:
Political Advertising and Advocacy Advertising
304-B:65 Political Advertising and Advocacy Advertising. As used in this subdivision:
I. “Advocacy advertising” shall mean any communication during an election cycle that clearly identifies by name, image, or voice of, a candidate for elective office.
II. “Candidate” means any person who has filed a declaration of candidacy, pursuant to RSA 655.
III. “Commencement of political advertising and/or advocacy advertising” shall mean the first dissemination during an election cycle by an organization of a communication containing political advertisement or advocacy advertisement.
IV. “Communication” means any publication in any newspaper or other periodical, broadcasting on radio or television, placement on any billboards, automated telephone calls, or postcards or other direct mailing sent to the general public. “Communication” shall exclude:
(a) Any direct contact by or on behalf of a limited partnership to an elected official who is a candidate, including, but not limited to, contact by telephone, letter, or email;
(b) Public testimony before a legislative committee or subcommittee, or before any entity subject to RSA 91-A, the right-to-know law, or a written document filed in the course of a public proceeding or any other communication that is made on the record in a public proceeding;
(c) Communication made in a speech or other public forum;
(d) Communication by a limited partnership during an election cycle which, excluding normal costs of operating overhead and salaries and benefits paid to employees of the limited partnership, costs less than $10,000 in the aggregate;
(e) Free communication by a limited partnership, including but not limited to letters to the editor, opinion columns, press releases, any internet communication, including emails and websites, except internet content placed for a fee on a website not owned by the limited partnership, or other forums generally available to the public at large at no charge;
(f) Any direct communication by a limited partnership made only to its partners and/or current or former employees of the limited partnership, and/or their family members by direct mail, email, telephone, or an internet site maintained by a limited partnership in the ordinary course of business;
(g) Print or electronic newsletters sent in the regular course of business to partners and/or current or former employees of the limited partnership, and/or their family members, or otherwise not distributed to the public at large; and
(h) Holding public or private events, including events attended by a candidate, the distribution of printed materials at such an event, and the printing and distribution of invitations for such an event.
V. “Election cycle” shall mean that period commencing 60 days prior to the holding of a primary and ending at midnight of the day of the next general election, unless in the event of a special election, in which event “election cycle” shall mean that period commencing 21 days prior to the special general election and ending at midnight of the day of the special general election.
VI. “Political advertising” means any communication which expressly or implicitly advocates the success or defeat of any party, measure, or person at any election.
304-B:66 Identification and Filing with New Hampshire Secretary of State. All political advertising and/or advocacy advertising shall indicate the name of the limited partnership and a general partner shall sign his or her name and address. If the general partner is not a natural person, then a natural person who has an ownership interest in a general partner shall sign his or her name and address. The signature and identification shall comply with the requirements of RSA 664:14, III and IV. No later than 3 business days after commencing any political advertising or advocacy advertising, except, if such advertising commences within 4 days before the day of an election, then no later than one business day after such commencement, any limited partnership, domestic or foreign, engaging in political advertising or advocacy advertising in the state of New Hampshire, shall file a statement with the New Hampshire secretary of state, corporate division, that the limited partnership is engaging in either political advertising or advocacy advertising. The limited partnership shall attach to the statement a vote of the general partners of the limited partnership, certified as true and complete by one of the general partners of the limited partnership, authorizing the limited partnership to engage in political advertising or advocacy advertising in the state of New Hampshire. The limited partnership vote shall be dated no more than 12 months prior to the date of filing with the secretary of state. Only one statement needs to be filed in each election cycle. The statement shall be in substance the following form:
______________________, of __________________________, ______________ County, State of ____________________, is engaging in [check the appropriate box or boxes]:
□ Political Advertising
□ Advocacy Advertising
in the state of New Hampshire. Attached hereto is a true and complete copy of a partnership vote of the general partners of the limited partnership authorizing the general partner or general partners of the limited partnership to expend partnership funds or other assets for political advertising or advocacy advertising.
____________________________________
[Duly Authorized Secretary of __________]
304-B:67 Filing Fee. There shall be no filing fee required by the secretary of state with any registration under this subdivision; provided, however, that the limited partnership shall pay any other fees required to do business in the state of New Hampshire.
304-B:68 Penalties. A violation of this subdivision shall result in a civil penalty of up to $250 per violation. Any candidate or voter may make a complaint in writing to the attorney general of any violation of this subdivision. If the attorney general determines that a provision of this subdivision has been violated, he or she may:
I. Issue an order requiring the violator to cease and desist from its violation.
II. If the attorney general’s order is not obeyed, petition to the Merrimack County superior court for an order of enforcement, and to enjoin any further political advertising or advocacy advertising until the appropriate statement has been filed.
III. Prosecute to final judgment through his or her designee if sufficient cause for such prosecution is found.
304-B:69 Private Right of Action. Any candidate or opposing candidate of a candidate who is referred to in advocacy advertising or political advertising, may have a private right of action to enforce the provisions of this subdivision by filing a petition with the Merrimack county superior court requesting an injunction to enjoin further political advertising or advocacy advertising until the required statements have been filed with the secretary of state, corporate division. Upon a finding by the superior court that the required statements have not been filed, and the ordering of any enforcement or injunctive relief, the complaining candidate shall be entitled to attorney’s fees and costs. Upon a finding by the superior court that the complaint by the candidate was frivolous or not filed in good faith, the limited partnership shall be entitled to attorney’s fees and costs.
4 New Subdivision; Management Approval for Political and Advocacy Advertising; Limited Liability Companies. Amend RSA 304-C by inserting after section 85 the following new subdivision:
Political Advertising and Advocacy Advertising
304-C:86 Political Advertising and Advocacy Advertising. In this subdivision:
I. “Advocacy advertising” means any communication during an election cycle that clearly identifies by name, image, or voice of, any candidate for elective office.
II. “Candidate” means any person who has filed a declaration of candidacy pursuant to RSA 655.
III. “Commencement of political advertising and/or advocacy advertising” means the first dissemination during an election cycle by an organization of a communication containing political advertisement or advocacy advertisement.
IV. “Communication” means any publication in any newspaper or other periodical, broadcasting on radio or television, placement on any billboards, automated telephone calls, or postcards or other direct mailing sent to the general public. “Communication” shall exclude:
(a) Any direct contact by or on behalf of a limited liability company to an elected official who is a candidate, including, but not limited to, contact by telephone, letter, or email;
(b) Public testimony before a legislative committee or subcommittee, or before any entity subject to RSA 91-A, the right-to-know law, or a written document filed in the course of a public proceeding or any other communication that is made on the record in a public proceeding;
(c) Communication made in a speech or other public forum;
(d) Free communication by a limited liability company, including but not limited to letters to the editor, opinion columns, press releases, any internet communication, including emails and websites, except internet content placed for a fee on a website not owned by the limited liability company, or other forums generally available to the public at large at no charge;
(e) Communications by a limited liability company during an election cycle which, excluding normal costs of operating overhead and salaries and benefits paid employees of the limited liability company, cost less than $10,000 in the aggregate;
(f) Any direct communication by a limited liability company made only to its members and/or current or former employees of the limited liability company, and/or their family members, by direct mail, email, telephone, or an internet site maintained by a limited liability company in the ordinary course of business;
(g) Print or electronic newsletters sent in the regular course of business to members and/or current or former employees of the limited liability company, and/or their family members, or otherwise not distributed to the public; and
(h) Holding public or private events, including events attended by a candidate, the distribution of printed materials at such an event, and the printing and distribution of invitations for such an event.
V. “Election cycle” shall mean that period commencing 60 days prior to the holding of a primary and ending at midnight of the day of the next general election, unless in the event of a special election, in which event “election cycle” shall mean that period commencing 21 days prior to the special general election and ending at midnight of the day of the special general election.
VI. “Political advertising” means any communication which expressly or implicitly advocates the success or defeat of any party, measure, or person at any election.
304-C:87 Identification and Filing with New Hampshire Secretary of State. All political advertising and/or advocacy advertising shall indicate the name of the limited liability company and the manager or a member shall sign his or her name and address. If the manager or member is not a natural person, then a natural person who has an ownership interest in a manager or member shall sign his or her name and address. The signature and identification shall comply with the requirements of RSA 664:14, III and IV. No later than 3 business days after commencing any political advertising or advocacy advertising, except, if such advertising commences within 4 days before the day of an election, then no later than one business day after such commencement, any limited liability company, domestic or foreign, engaging in political advertising or advocacy advertising in the state of New Hampshire, shall file a statement with the New Hampshire secretary of state, corporate division, that the limited liability company is engaging in either political advertising or advocacy advertising. The limited liability company shall attach to the statement a vote of the members of the limited liability company, certified as true and complete by the manager of the limited liability company, or, if member managed, a vote of the members of the limited liability company certified by a member as true and complete, authorizing the limited liability company to engage in political advertising or advocacy advertising in the state of New Hampshire. The vote shall also authorize a manager or, if member managed, a member, of the limited liability company to expend company funds or other company assets for the purpose of paying for political advertising and/or advocacy advertising in the state of New Hampshire. Only one statement needs to be filed in each election cycle. The manager vote or member vote, as applicable, shall be dated no more than 12 months prior to the date of filing with the secretary of state. The statement shall be in substance the following form:
______________________, of __________________________, ______________ County, State of ____________________, is engaging in [check the appropriate box or boxes]:
□ Political Advertising
□ Advocacy Advertising
in the state of New Hampshire. Attached hereto is a true and complete copy of a vote of the limited liability company authorizing the limited liability company to engage in political advertising or advocacy advertising, and authorizing the limited liability company to expend company funds or other assets for political advertising or advocacy advertising.
____________________________________
[Duly Authorized Secretary of __________]
304-C:88 Filing Fee. There shall be no filing fee required by the secretary of state with any registration under this subdivision; provided, however, that the limited liability company shall pay any other fees required to do business in the state of New Hampshire.
304-C:89 Penalties. A violation of this subdivision shall result in a civil penalty of up to $250 per violation. Any candidate or voter may make a complaint in writing to the attorney general of any violation of this subdivision. If the attorney general determines that a provision of this subdivision has been violated, he or she may:
I. Issue an order requiring the violator to cease and desist from its violation.
II. If the attorney general’s order is not obeyed, petition to the Merrimack County superior court for an order of enforcement, and to enjoin any further political advertising or advocacy advertising until the appropriate statement has been filed.
III. Prosecute to final judgment through his or her designee if sufficient cause for such prosecution is found.
304-C:90 Private Right of Action. Any candidate or opposing candidate of a candidate who is referred to in advocacy advertising or political advertising, may have a private right of action to enforce the provisions of this subdivision by filing a petition with the Merrimack county superior court requesting an injunction to enjoin further political advertising or advocacy advertising until the required statements have been filed with the secretary of state. Upon a finding by the superior court that the required statements have not been filed, and the ordering of any enforcement or injunctive relief, the complaining candidate shall be entitled to attorney’s fees and costs. Upon a finding by the superior court that the complaint by the candidate was frivolous or not filed in good faith, the limited liability company shall be entitled to its attorney’s fees and costs.
5 Effective Date. This act shall take effect January 1, 2013.
LBAO
12-2456
01/03/12
HB 1683-FN - FISCAL NOTE
AN ACT relative to political advertising by business organizations.
FISCAL IMPACT:
The Office of Legislative Budget Assistant is unable to complete a fiscal note for this bill as it is awaiting information from the Department of State. When completed, the fiscal note will be forwarded to the House Clerk's Office.