HB-5086, As Passed Senate, February 14, 2012

SUBSTITUTE FOR

HOUSE BILL NO. 5086

A bill to amend 1976 PA 388, entitled

"Michigan campaign finance act,"

by amending sections 4, 6, 11, 15, and 57 (MCL 169.204, 169.206,

169.211, 169.215, and 169.257), section 4 as amended by 1989 PA 95,

section 6 as amended by 2003 PA 69, section 11 as amended by 1996

PA 590, and sections 15 and 57 as amended by 2001 PA 250.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 4. (1) "Contribution" means a payment, gift,

subscription, assessment, expenditure, contract, payment for

services, dues, advance, forbearance, loan, or donation of money or

anything of ascertainable monetary value, or a transfer of anything

of ascertainable monetary value to a person, made for the purpose

of influencing the nomination or election of a candidate, or for

House Bill No. 5086 as amended February 7, 2012

the qualification, passage, or defeat of a ballot question.

(2) Contribution includes the full purchase price of tickets

or payment of an attendance fee for events such as dinners,

luncheons, rallies, testimonials, and other fund-raising events; an

individual's own money or property other than the individual's

homestead used on behalf of that individual's candidacy; the

granting of discounts or rebates not available to the general

public; or the granting of discounts or rebates by broadcast media

and newspapers not extended on an equal basis to all candidates for

the same office; and the endorsing or guaranteeing of a loan for

the amount the endorser or guarantor is liable. <<Except for the

purposes of section 57,>> Contribution does

not include a contribution to a federal candidate or a federal

committee<<. >>

(3) Contribution does not include any of the following:

(a) Volunteer personal services provided without compensation,

or payments of costs incurred of less than $500.00 in a calendar

year by an individual for personal travel expenses if the costs are

voluntarily incurred without any understanding or agreement that

the costs shall be, directly or indirectly, repaid.

(b) Food and beverages, not to exceed $100.00 in value during

a calendar year, which are donated by an individual and for which

reimbursement is not given.

unconditionally rejected, returned, or refunded in whole or in part

within 30 business days after receipt.

Sec. 6. (1) "Expenditure" means a payment, donation, loan, or

promise of payment of money or anything of ascertainable monetary

value for goods, materials, services, or facilities in assistance

of, or in opposition to, the nomination or election of a candidate,

or the qualification, passage, or defeat of a ballot question.

Expenditure includes, but is not limited to, any of the following:

(a) A contribution or a transfer of anything of ascertainable

monetary value for purposes of influencing the nomination or

election of a candidate or the qualification, passage, or defeat of

a ballot question.

(b) Except as provided in subsection (2)(f) or (g), an

expenditure for voter registration or get-out-the-vote activities

made by a person who sponsors or finances the activity or who is

identified by name with the activity.

expenditure made for poll watchers, challengers, distribution of

election day literature, canvassing of voters to get out the vote,

or transporting voters to the polls.

(d) Except as provided in subsection (2)(c), the cost of

establishing and administering a payroll deduction plan to collect

and deliver a contribution to a committee.

(2) Expenditure does not include any of the following:

(a) An expenditure for communication by a person with the

person's paid members or shareholders and those individuals who can

be solicited for contributions to a separate segregated fund under

section 55.

(b) An expenditure for communication on a subject or issue if

the communication does not support or oppose a ballot question or

candidate by name or clear inference.

solicitation of contributions to a separate segregated fund or

~~independent committee~~ if that expenditure was made by the person

who established the separate segregated fund as authorized under

section 55.

(d) An expenditure by a broadcasting station, newspaper,

magazine, or other periodical or publication for a news story,

commentary, or editorial in support of or opposition to a candidate

for elective office or a ballot question in the regular course of

publication or broadcasting.

(e) An offer or tender of an expenditure if expressly and

unconditionally rejected or returned.

(f) An expenditure for nonpartisan voter registration or

nonpartisan get-out-the-vote activities made by an organization

that is exempt from federal income tax ~~pursuant to~~ under section

501(c)(3) of the internal revenue code of 1986, 26 ~~U.S.C.~~ USC 501,

or any successor statute.

(g) An expenditure for nonpartisan voter registration or

nonpartisan get-out-the-vote activities performed ~~pursuant to~~ under

chapter XXIII of the Michigan election law, 1954 PA 116, MCL

168.491 to 168.524, by the secretary of state and other

registration officials who are identified by name with the

activity.

(h) An expenditure by a state central committee of a political

party or a person controlled by a state central committee of a

political party for the construction, purchase, or renovation of 1

or more office facilities in Ingham county if the facility is not

House Bill No. 5086 as amended February 7, 2012

constructed, purchased, or renovated for the purpose of influencing

the election of a candidate in a particular election. Items

excluded from the definition of expenditure under this subdivision

include expenditures approved in federal election commission

advisory opinions 1993-9, 2001-1, and 2001-12 as allowable

expenditures under the federal election campaign act of 1971,

Public Law 92-225, 2 ~~U.S.C.~~ USC 431 to ~~434, 437, 437c to 439a,~~

~~439c, 441a to 441h, and 442 to 455,~~ 457, and regulations

promulgated under that act, regardless of whether those advisory

opinions have been superseded.

<<(i) Except for the purposes of section 57, an expenditure to

or for a federal candidate or a federal committee.>>

Sec. 11. (1) "Payroll deduction plan" means any system in

which an employer deducts any amount of money from the wages,

earnings, or compensation of an employee.

(2) ~~(1)~~ "Person" means a business, individual, proprietorship,

firm, partnership, joint venture, syndicate, business trust, labor

organization, company, corporation, association, committee, or any

other organization or group of persons acting jointly.

(3) ~~(2)~~ "Political committee" means a committee that is not a

candidate committee, political party committee, independent

committee, or ballot question committee.

(4) ~~(3)~~ "Political merchandise" means goods such as bumper

stickers, pins, hats, beverages, literature, or other items sold by

a person at a fund raiser or to the general public for publicity or

for the purpose of raising funds to be used in supporting or

opposing a candidate for nomination for or election to an elective

office or in supporting or opposing the qualification, passage, or

defeat of a ballot question.

(5) ~~(4)~~ "Political party" means a political party ~~which~~ that

has a right under law to have the names of its candidates listed on

the ballot in a general election.

(6) ~~(5)~~ "Political party committee" means a state central,

district, or county committee of a political party ~~which~~ that is a

committee. Each state central committee shall designate the

official party county and district committees. There shall not be

more than 1 officially designated political party committee per

county and per congressional district.

(7) ~~(6)~~ "Public body" means 1 or more of the following:

(a) A state agency, department, division, bureau, board,

commission, council, authority, or other body in the executive

branch of state government.

(b) The legislature or an agency, board, commission, or

council in the legislative branch of state government.

or regional governing body; a council, school district, special

district, or municipal corporation; or a board, department,

commission, or council or an agency of a board, department,

commission, or council.

(d) Any other body that is created by state or local authority

or is primarily funded by or through state or local authority,

which body exercises governmental or proprietary authority or

performs a governmental or proprietary function.

Sec. 15. (1) The secretary of state shall do all of the

following:

(a) Make available through his or her 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 ~~the~~

~~purposes of~~ this act, and supervise the implementation of the

filing systems by the clerks of the counties.

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 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 required to file, a person whose participation is

essential to the preparation of the statement or report, or a

member of the immediate family of these persons.

(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 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 be made available for public inspection

within 48 hours after its receipt. An interested person may submit

written comments regarding the request to the secretary of state

within 10 business days after the date the request is made

available to the public. Within 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 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 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 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 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 include a copy of the

complaint. Within 15 business days after this notice is provided,

the person against whom the complaint was filed may submit to the

secretary of state a response. 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 10 business days after

receiving a copy of the response, the complainant may submit to the

secretary of state a rebuttal statement. 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 under subsection (5) shall satisfy all of the

following requirements:

(a) Be signed by the complainant.

(b) State the name, address, and telephone number of the

complainant.

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 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. Every 60 days after a

complaint that meets the requirements of subsection (6) is filed

and until the matter is terminated, the secretary of state shall

mail to the complainant and to the alleged violator notice of the

action taken to date by the secretary of state ~~, together with~~ and

the reasons for the action or nonaction.

(10) If the secretary of state determines that there may be

reason to believe that a violation of this act has 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 action with

respect to matters covered in the conciliation agreement. If the

secretary of state is unable to correct or prevent further

violation by these informal methods, 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 as

provided in subsection (11).

(11) The secretary of state may commence a hearing to

determine whether a civil violation of this act has occurred. A

hearing shall not be commenced during the period beginning 30 days

before an election in which the committee has received or expended

money and ending the day after that election except with the

consent of the person suspected of committing a civil violation.

The hearing shall 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. 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 equal to 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) 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.

(15) 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.

(16) ~~There~~ Except as otherwise provided in section 57, there

is no private right of action, either in law or in equity, under

this act. ~~The~~ Except as otherwise provided in section 57, 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.

(17) 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

House Bill No. 5086 as amended February 7, 2012

or less.

(18) 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.

be filed with the county clerk's office.

(d) Upon 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. 57. (1) A public body or ~~an individual~~ a person acting

for a public body shall not use or authorize the use of funds,

personnel, office space, computer hardware or software, property,

stationery, postage, vehicles, equipment, supplies, or other public

resources to make a contribution or expenditure or provide

volunteer personal services that are excluded from the definition

of contribution under section 4(3)(a). The prohibition under this

subsection includes, but is not limited to, using or authorizing

the use of public resources to establish or administer a payroll

deduction plan to directly or indirectly collect or deliver a

contribution to<<, or make an expenditure for,>> a committee. Advance

payment or reimbursement to a

public body does not cure a use of public resources otherwise

prohibited by this subsection. This subsection does not apply to

any of the following:

House Bill No. 5086 as amended February 7, 2012

(a) The expression of views by an elected or appointed public

official who has policy making responsibilities.

(b) The production or dissemination of factual information

concerning issues relevant to the function of the public body.

commentary, or information by a broadcasting station, newspaper,

magazine, or other periodical or publication in the regular course

of broadcasting or publication.

(d) The use of a public facility owned or leased by, or on

behalf of, a public body if any candidate or committee has an equal

opportunity to use the public facility.

(e) The use of a public facility owned or leased by, or on

behalf of, a public body if that facility is primarily used as a

family dwelling and is not used to conduct a fund-raising event.

(f) An elected or appointed public official or an employee of

a public body who, when not acting for a public body but is on his

or her own personal time, is expressing his or her own personal

views, is expending his or her own personal funds, or is providing

his or her own personal volunteer services.

(2) If the secretary of state has dismissed a complaint filed

under section 15(5) alleging that a public body or person acting

for a public body used or authorized the use of public resources to

establish or administer a payroll deduction plan to collect or

deliver a contribution to<<, or make an expenditure for,>> a

committee in violation of this section, <<or if the secretary of

state enters into a conciliation agreement under section 15(10) that

does not prevent a public body or a person acting for a public body

to use or authorize the use of public resources to establish or administer a payroll deduction plan to collect or deliver a

contribution to, or make an expenditure for, a committee in violation

of this section,>>

the following apply:

(a) The complainant or any other person who resides, or has a

place of business, in the jurisdiction where the use or

House Bill No. 5086 as amended February 7, 2012

authorization of the use of public resources occurred may bring a

civil action against the public body or person acting for the

public body to seek declaratory, injunctive, mandamus, or other

equitable relief and to recover losses that a public body suffers

from the violation of this section.

(b) If the complainant or any other person <<who resides, or has

a place of business, in the jurisdiction where the use or

authorization of the use of public resources occurred>> prevails in an

action << >> initiated under

this subsection, a court shall award the complainant or any other

person necessary expenses, costs, and reasonable attorney fees.

under this subsection may be awarded or granted against the public

body or an individual acting for the public body, or both, that << >>

violates this section, as determined by the court.

(d) A complainant or any other person <<who resides, or has a

place of business, in the jurisdiction where the use or authorization

of the use of public resources occurred>> may bring a civil action

under this subsection in any county in which venue is proper.

Process issued by a court in which an action is filed under this

subsection may be served anywhere in this state.

(3) ~~(2)~~ A person who knowingly violates this section is guilty

of a misdemeanor punishable, if the person is an individual, by a

fine of not more than $1,000.00 or imprisonment for not more than 1

year, or both, or if the person is not an individual, by 1 of the

following, whichever is greater:

(a) A fine of not more than $20,000.00.

(b) A fine equal to the amount of the improper contribution or

expenditure.

Enacting section 1. It is the policy of this state that a

public body shall maintain strict neutrality in each election and