HOUSE BILL 1053
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Kathy A. McCoy
AN ACT
RELATING TO ELECTIONS; ELIMINATING STATEMENTS OF EXCEPTION FROM THE CAMPAIGN REPORTING ACT; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 1997; AMENDING AND REPEALING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 1-19-26 NMSA 1978 (being Laws 1979, Chapter 360, Section 2, as amended) is amended to read:
"1-19-26. DEFINITIONS.--As used in the Campaign Reporting Act:
A. "advertising campaign" means an advertisement or series of advertisements used for a political purpose and disseminated to the public either in print, by radio or television broadcast or by any other electronic means, including telephonic communications, and may include direct or bulk mailings of printed materials;
B. "anonymous contribution" means a contribution the contributor of which is unknown to the candidate or [his] the candidate's agent or the political committee or its agent who accepts the contribution;
C. "bank account" means an account in a financial institution located in New Mexico;
D. "campaign committee" means two or more persons authorized by a candidate to raise, collect or expend contributions on the candidate's behalf for the purpose of electing [him] the candidate to office;
E. "candidate" means an individual who seeks or considers an office in an election covered by the Campaign Reporting Act, including a public official, who either has filed a declaration of candidacy or nominating petition or:
(1) for a non-statewide office, has received contributions or made expenditures of one thousand dollars ($1,000) or more or authorized another person or campaign committee to receive contributions or make expenditures of one thousand dollars ($1,000) or more for the purpose of seeking election to the office; or
(2) for a statewide office, has received contributions or made expenditures of two thousand five hundred dollars ($2,500) or more or authorized another person or campaign committee to receive contributions or make expenditures of two thousand five hundred dollars ($2,500) or more for the purpose of seeking election to the office or for candidacy exploration purposes in the years prior to the year of the election;
F. "contribution" means a gift, subscription, loan, advance or deposit of money or other thing of value, including the estimated value of an in-kind contribution, that is made or received for a political purpose, including payment of a debt incurred in an election campaign, but does not include the value of services provided without compensation or unreimbursed travel or other personal expenses of individuals who volunteer a portion or all of their time on behalf of a candidate or political committee, nor does it include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee;
G. "deliver" or "delivery" means to deliver by certified or registered mail, telecopier, electronic transmission or facsimile or by personal service;
H. "election" means any primary, general or statewide special election in New Mexico and includes county and judicial retention elections but excludes municipal, school board and special district elections;
I. "election year" means an even-numbered year in which an election covered by the Campaign Reporting Act is held;
J. "expenditure" means a payment, transfer or distribution or obligation or promise to pay, transfer or distribute any money or other thing of value for a political purpose, including payment of a debt incurred in an election campaign or pre-primary convention, but does not include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee;
K. "person" means an individual or entity;
L. "political committee" means two or more persons, other than members of a candidate's immediate family or campaign committee or a husband and wife who make a contribution out of a joint account, who are selected, appointed, chosen, associated, organized or operated primarily for a political purpose; and political committee includes:
(1) political action committees or similar organizations composed of employees or members of any corporation, labor organization, trade or professional association or any other similar group that raises, collects, expends or contributes money or any other thing of value for a political purpose;
(2) a single individual [who by his] whose actions [represents] represent that [he] the individual is a political committee; and
(3) a person or an organization of two or more persons that within one calendar year expends funds in excess of five hundred dollars ($500) to conduct an advertising campaign for a political purpose;
M. "political purpose" means influencing or attempting to influence an election or pre-primary convention, including a constitutional amendment or other question submitted to the voters;
N. "prescribed form" means a form or electronic format prepared and prescribed by the secretary of state;
O. "proper filing officer" means either the secretary of state or the county clerk as provided in Section 1-19-27 NMSA 1978;
P. "public official" means a person elected to an office in an election covered by the Campaign Reporting Act or a person appointed to an office that is subject to an election covered by that act; and
Q. "reporting individual" means every public official, candidate or treasurer of a campaign committee and every treasurer of a political committee [and
R. "statement of exception" or "statement" means the prescribed form subscribed and sworn to by a candidate to indicate that the candidate does not intend to raise or expend the minimum amount required for the filing of a report of expenditures and contributions as provided in Section 1-19-33 NMSA 1978]."
Section 2. Section 1-19-27 NMSA 1978 (being Laws 1979, Chapter 360, Section 3, as amended) is amended to read:
"1-19-27. REPORTS REQUIRED--PROPER FILING OFFICER.--
A. [Except for those candidates who file a statement of exception in an election year pursuant to Section 1-19-33 NMSA 1978] All reporting individuals shall annually file with the proper filing officer a report of expenditures and contributions on a prescribed form. The report shall be filed on the second Monday in May pursuant to the provisions of Subsection A of Section 1-19-29 NMSA 1978.
B. The proper filing officer for filing reports of expenditures and contributions by a political committee is the secretary of state.
C. The proper filing officer for filing reports of expenditures and contributions [or statements of exception] is the secretary of state for all public officials.
D. The secretary of state shall develop or contract for services to develop an electronic reporting system for receiving and for public inspection of reports of expenditures and contributions [and statements of exception] to the Campaign Reporting Act. The electronic reporting system shall:
(1) enable a person to file reports on-line by filling out forms on the secretary of state's web site; and
(2) provide for encrypted transmissions."
Section 3. Section 1-19-28 NMSA 1978 (being Laws 1979, Chapter 360, Section 4, as amended) is amended to read:
"1-19-28. FURNISHING REPORT FORMS--POLITICAL
COMMITTEES--CANDIDATES.--
A. The secretary of state annually shall furnish to all reporting individuals the prescribed forms for the reporting of expenditures and contributions, supplemental reports [and a statement of exception] and the specific dates the reports [and statement] are due.
B. In addition to the provisions of Subsection A of this section, at the time of filing a declaration of candidacy or a nominating petition, the proper filing officer shall give the candidate the prescribed reporting forms and the schedule of specific dates for filing the required reports [or a statement of exception]. The prescribed forms shall also be made available to all reporting individuals at the office of the secretary of state and in each county at the office of the county clerk."
Section 4. Section 1-19-29 NMSA 1978 (being Laws 1993, Chapter 46, Section 5, as amended) is amended to read:
"1-19-29. TIME AND PLACE OF FILING REPORTS.--
A. Annually, all reporting individuals shall file with the proper filing officer by 5:00 p.m. on the second Monday in May a report of all expenditures made and contributions received on or before the first Monday in May and not previously reported. The report shall be filed annually until the reporting individual's bank account has been closed and the other provisions specified in Subsection [E] D of this section have been satisfied.
B. In an election year, in addition to the May report provided for in Subsection A of this section, all reporting individuals, [except for persons who file a statement of exception pursuant to Section 1-19-33 NMSA 1978 and] except for public officials who are not candidates in an election that year, shall file reports of all expenditures made and contributions received according to the following schedule:
(1) by 5:00 p.m. on the second Monday in October, a report of all expenditures made and contributions received on or before the first Monday in October and not previously reported;
(2) by 5:00 p.m. on the Thursday before a primary, general or statewide special election, a report of all expenditures made and contributions received by 5:00 p.m. on the Tuesday before the election. Any contribution or pledge to contribute that is received after 5:00 p.m. on the Tuesday before the election and that is for five hundred dollars ($500) or more in a legislative or non-statewide judicial election, or two thousand five hundred dollars ($2,500) or more in a statewide election, shall be reported to the proper filing officer either in a supplemental report on a prescribed form within twenty-four hours of receipt or in the report to be filed by 5:00 p.m. on the Thursday before a primary, general or statewide special election, except that any such contribution or pledge to contribute that is received after 5:00 p.m. on the Friday before the election may be reported by 12:00 noon on the Monday before the election; and
(3) by 5:00 p.m. on the thirtieth day after a primary, general or statewide special election, a report of all expenditures made and contributions received on or before the twenty-fifth day after the election and not previously reported.
C. Notwithstanding the other provisions of this section, the report due on the thirtieth day after an election need be the only report filed after the annual May report if the candidate is not opposed in the election and if the report includes all expenditures made and contributions received for that election and not previously reported.
D. A report of expenditures and contributions filed after a deadline set forth in this section shall not be deemed to have been timely filed.
E. Each reporting individual shall file a report of expenditures and contributions annually pursuant to the filing schedule set forth in this section, regardless of whether any expenditures were made or contributions were received during the reporting period. Reports shall be required until the reporting individual delivers a report to the proper filing officer stating that:
(1) there are no outstanding campaign debts;
(2) all money has been expended in accordance with the provisions of Section 1-19-29.1 NMSA 1978; and
(3) the bank account has been closed.
F. Each treasurer of a political committee shall file a report of expenditures and contributions annually pursuant to the filing schedule set forth in this section until the treasurer files a report that affirms that the committee has dissolved or no longer exists and that its bank account has been closed.
G. A reporting individual who is a candidate within the meaning of the Campaign Reporting Act because of the amount of contributions [he] the candidate receives or expenditures [he] the candidate makes and who does not ultimately file a declaration of candidacy or a nominating petition with the proper filing officer shall nevertheless file a report, not later than the second Monday in May for a primary election or the second Monday in October for a general election, of all contributions received and expenditures made on or before the first Monday in May for a primary election or the first Monday in October for a general election and not previously reported.
H. Reports required by this section shall be filed electronically by all reporting individuals.
I. Reporting individuals may apply to the secretary of state for exemption from electronic filing in case of hardship, which shall be defined by the secretary of state."
Section 5. Section 1-19-32 NMSA 1978 (being Laws 1979, Chapter 360, Section 8, as amended) is amended to read:
"1-19-32. INSPECTION OF PUBLIC RECORDS.--
A. Each of the following documents is a public record open to public inspection during regular office hours in the office in which the document was filed or from which the document was issued:
[(1) a statement of exception;
(2)] (1) a report of expenditures and contributions;
[(3)] (2) an advisory opinion issued by the secretary of state;
[(4)] (3) a document specified as a public record in the Campaign Reporting Act; and
[(5)] (4) an arbitration decision issued by an arbitration panel and filed with the secretary of state.
B. Each public record described in Subsection A of this section shall be retained by the state for five years and may be destroyed five years after the date of filing unless a legal action or prosecution is pending that requires the preservation of the public record.
C. The secretary of state shall provide for electronic access to reports of expenditures and contributions [and statements of exception] submitted electronically by reporting individuals. Electronic access shall include access via the internet and shall be in an easily searchable format."
Section 6. Section 1-19-32.1 NMSA 1978 (being Laws 1981, Chapter 331, Section 9, as amended) is amended to read:
"1-19-32.1. REPORTS EXAMINATION--FORWARDING OF
REPORTS.--
A. The secretary of state shall conduct a thorough examination of at least ten percent of all reports filed during a year by reporting individuals, selected at random at least forty days after the general election and ten days after the May reports are filed in a nonelection year, to determine compliance with the provisions of the Campaign Reporting Act. The examination may include an investigation of any discrepancies, including a cross-reference to reports filed by any other reporting individual. A reporting individual shall be notified in writing if a discrepancy is found in the report filed and shall be permitted to file a written explanation for the discrepancy within ten working days of the date of the notice. The notice, penalty and arbitration provisions set forth in Section 1-19-34.4 NMSA 1978 shall apply to examinations conducted under this section.
B. After the date stated in the notice of final action for submission of a written explanation, the secretary of state shall prepare an annual report of any unresolved discrepancies found after examination of the random sample provided for in Subsection A of this section. A copy of this report shall be transmitted to the attorney general for enforcement pursuant to the provisions of Section 1-19-36 NMSA 1978. This report is a public record open to public inspection and subject to the retention and destruction provisions set forth in Section 1-19-32 NMSA 1978.
[C. A county clerk shall deliver to the secretary of state, within forty-eight hours of the county clerk's receipt, each report of expenditures and contributions or statement of exception filed with the county clerk's office. Within forty-eight hours of receipt of a report of expenditures and contributions or statement of exception filed by a legislative candidate for a multicounty district, the secretary of state shall deliver to each county clerk in the multicounty legislative district a copy of the report or statement filed.]"
Section 7. Section 1-19-34.4 NMSA 1978 (being Laws 1993, Chapter 46, Section 15, as amended) is amended to read:
"1-19-34.4. EDUCATION AND VOLUNTARY COMPLIANCE--INVESTIGATIONS--BINDING ARBITRATION--REFERRALS FOR ENFORCEMENT.--
A. The secretary of state shall advise and seek to educate all persons required to perform duties under the Campaign Reporting Act of those duties. This includes advising all known reporting individuals at least annually of that act's deadlines for submitting required reports [and statements of exception]. The secretary of state, in consultation with the attorney general, shall issue advisory opinions, when requested in writing to do so, on matters concerning that act. All prescribed forms prepared shall be clear and easy to complete.
B. The secretary of state may initiate investigations to determine whether any provision of the Campaign Reporting Act has been violated. Additionally, any person who believes that a provision of that act has been violated may file a written complaint with the secretary of state any time prior to ninety days after an election, except that no complaints from the public may be filed within eight days prior to an election. The secretary of state shall adopt procedures for issuing advisory opinions and processing complaints and notifications of violations.
C. The secretary of state shall at all times seek to ensure voluntary compliance with the provisions of the Campaign Reporting Act. If the secretary of state determines that a provision of that act for which a penalty may be imposed has been violated, the secretary of state shall by written notice set forth the violation and the fine imposed and inform the reporting individual that [he] the individual has ten working days from the date of the letter to correct the matter and to provide a written explanation, under penalty of perjury, stating any reason why the violation occurred. If a timely explanation is filed and the secretary of state determines that good cause exists to waive the fine imposed, the secretary of state may by a written notice of final action partially or fully waive any fine imposed for any late, incomplete or false report [or statement of exception]. A written notice of final action shall be sent by certified mail.
D. Upon receipt of the notice of final action, the person against whom the penalty has been imposed may protest the secretary of state's determination, including an advisory opinion, by submitting on a prescribed form a written request for binding arbitration to the secretary of state within ten working days of the date of the notice of final action. Any fine imposed shall be due and payable within ten working days of the date of notice of final action. No additional fine shall accrue pending the issuance of the arbitration decision. Fines paid pursuant to a notice of final action that are subsequently reduced or dismissed shall be reimbursed with interest within ten working days after the filing of the arbitration decision with the secretary of state. Interest on the reduced or dismissed portion of the fine shall be the same as the rate of interest earned by the secretary of state's escrow account to be established by the department of finance and administration.
E. An arbitration hearing shall be conducted by a single arbitrator selected within ten days by the person against whom the penalty has been imposed from a list of five arbitrators provided by the secretary of state. Neither the secretary of state nor a person subject to the Campaign Reporting Act, Lobbyist Regulation Act or Financial Disclosure Act may serve as an arbitrator. Arbitrators shall be considered to be independent contractors, not public officers or employees, and shall not be paid per diem and mileage.
F. The arbitrator shall conduct the hearing within thirty days of the request for arbitration. The arbitrator may impose any penalty the secretary of state is authorized to impose. The arbitrator shall state the reasons for [his] the arbitrator's decision in a written document that shall be a public record. The decision shall be final and binding. The decision shall be issued and filed with the secretary of state within thirty days of the conclusion of the hearing. Unless otherwise provided for in this section or by rule [or regulation] adopted by the secretary of state, the procedures for the arbitration shall be governed by the Uniform Arbitration Act. No arbitrator shall be subject to liability for actions taken pursuant to this section.
G. The secretary of state may refer a matter to the attorney general or a district attorney for a civil injunctive or other appropriate order or for criminal enforcement."
Section 8. Section 1-19-35 NMSA 1978 (being Laws 1979, Chapter 360, Section 11, as amended by Laws 1997, Chapter 12, Section 2 and also by Laws 1997, Chapter 112, Section 5) is amended to read:
"1-19-35. REPORTS [AND STATEMENTS]--LATE FILING PENALTY--FAILURE TO FILE.--
A. Except for the [report] reports required to be filed and delivered the Thursday prior to the election and any supplemental report, as required in Paragraph (2) of Subsection B of Section 1-19-29 NMSA 1978, that is due prior to the election, and subject to the provisions of Section 1-19-34.4 NMSA 1978, if a [statement of exception or a] report of expenditures and contributions contains false or incomplete information or is filed after any deadline imposed by the Campaign Reporting Act, the responsible reporting individual or political committee, in addition to any other penalties or remedies prescribed by the Election Code, shall be liable for and shall pay to the secretary of state fifty dollars ($50.00) per day for each regular working day after the time required by the Campaign Reporting Act for the filing of [statements of exception or] reports of expenditures and contributions until the complete [or] and true [statement or] report is filed, up to a maximum of five thousand dollars ($5,000).
B. If any reporting individual files a false, intentionally incomplete or late report of expenditures and contributions due on the Thursday prior to the election, the reporting individual or political committee shall be liable and pay to the secretary of state five hundred dollars ($500) for the first working day and fifty dollars ($50.00) for each subsequent working day after the time required for the filing of the report until the true and complete report is filed, up to a maximum of five thousand dollars ($5,000).
C. If a reporting individual fails to file or files a late supplemental report of expenditures and contributions as required in Paragraph (2) of Subsection B of Section 1-19-29 NMSA 1978, the reporting individual or political committee shall be liable for and pay to the secretary of state a penalty equal to the amount of each contribution received or pledged after the Tuesday before the election that was not timely filed.
D. All sums collected for the penalty shall be deposited in the state general fund. A report [or statement of exception] shall be deemed timely filed only if it is received by the proper filing officer by the date and time prescribed by law.
E. Any candidate who fails or refuses to file a report of expenditures and contributions [or statement of exception] or to pay a penalty imposed by the secretary of state as required by the Campaign Reporting Act shall not, in addition to any other penalties provided by law:
(1) have [his] the candidate's name printed upon the ballot if the violation occurs before and through the final date for the withdrawal of candidates; or
(2) be issued a certificate of nomination or election, if the violation occurs after the final date for withdrawal of candidates or after the election, until the candidate satisfies all reporting requirements of the Campaign Reporting Act and pays all penalties owed.
F. Any candidate who loses an election and who failed or refused to file a report of expenditures and contributions [or a statement of exception] or to pay a penalty imposed by the secretary of state as required by the Campaign Reporting Act shall not be, in addition to any other penalties provided by law, permitted to file a declaration of candidacy or nominating petition for any future election until the candidate satisfies all reporting requirements of that act and pays all penalties owed."
Section 9. REPEAL.--Section 1-19-33 NMSA 1978 (being Laws 1979, Chapter 360, Section 9 as amended) is repealed.
Section 10. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.
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