October 18, 2011, Introduced by Reps. Opsommer and Shirkey and referred to the Committee on Redistricting and Elections.
A bill to amend 1976 PA 388, entitled
"Michigan campaign finance act,"
by amending sections 6, 11, 15, and 57 (MCL 169.206, 169.211,
169.215, and 169.257), 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, and by adding section 57a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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.
(c) Except as provided in subsection (2)(f) or (g), an
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.
(c) An expenditure for the establishment, administration, or
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
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.
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.
(c) A county, city, township, village, intercounty, intercity,
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.
(c) Receive all statements and reports required by this act to
be filed with the secretary of state.
(d) Prepare forms, instructions, and manuals required under
this act.
(e) Promulgate rules and issue declaratory rulings to
implement this act in accordance with the administrative procedures
act of 1969, 1969 PA 306, MCL 24.201 to 24.328.
(f) Upon 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.
(c) Include the complainant's certification that, to the best
of the complainant's knowledge, information, and belief, formed
after a reasonable inquiry under the circumstances, each factual
contention of the complaint is supported by evidence. However, if,
after a reasonable inquiry under the circumstances, the complainant
is unable to certify that certain factual contentions are supported
by evidence, the complainant may certify that, to the best of his
or her 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 57a, there
is no private right of action, either in law or in equity, under
this act. 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
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.
(c) Receive all statements and reports required by this act to
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 collect or deliver a contribution to 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:
(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.
(c) The production or dissemination of debates, interviews,
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) 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.
Sec. 57a. (1) If a public body or a person acting for a public
body uses or authorizes the use of public resources to establish or
administer a payroll deduction plan to collect or deliver a
contribution to a committee in violation of section 57, any 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 in the name of this state under this
section to seek declaratory, injunctive, mandamus, or other
equitable relief and to recover losses that a public body suffers
from that use. A civil action filed under this section shall not be
dismissed unless the attorney general has been notified and had an
opportunity to appear and oppose the dismissal. If the attorney
general does not appear and oppose the dismissal of the civil
action within 28 days of receiving notice under this subsection,
the attorney general waives the opportunity to appear and oppose
the dismissal.
(2) If a person other than the attorney general initiates an
action under this section, the complaint shall remain under seal
and the clerk shall not issue the summons for service on the
defendant until after the attorney general's time to intervene
under subsection (3) expires. At the time of filing the complaint,
the person shall serve a copy of the complaint on the attorney
general and shall disclose, in writing, substantially all material
evidence and information in the person's possession supporting the
complaint to the attorney general. Nothing in this section prevents
a person from seeking immediate equitable relief before the
attorney general's time to intervene under subsection (3) expires.
(3) The attorney general may intervene in an action under this
section before the expiration of the time period set forth in this
subsection. Not later than 21 days after service of the complaint
and related materials or any extension of the 21 days that is
requested by the attorney general and granted by the court, the
attorney general shall notify the court and the person initiating
the action of 1 of the following:
(a) That the attorney general will proceed with the action for
this state and have primary responsibility for proceeding with the
action.
(b) That the attorney general declines to take over the action
and that the person has the right to continue with the action
without the attorney general as a party to the action.
(4) If an action is filed under this section, a person other
than the attorney general shall not intervene in the action or
bring another action on behalf of this state based on the facts
underlying the action.
(5) If the attorney general intervenes in an action under
subsection (3) or (6), the attorney general has the primary
responsibility for prosecuting the action and may do all of the
following:
(a) Agree to dismiss the action, notwithstanding the objection
of the person initiating the action, but only if that person has
been notified of and offered the opportunity to participate in a
hearing on the motion to dismiss.
(b) Settle the action, notwithstanding the objection of the
person initiating the action, but only if that person has been
notified of and offered the opportunity to participate in a hearing
on the settlement and the court determines that the settlement is
fair, adequate, and reasonable under the circumstances. Upon a
showing of good cause, a settlement hearing under this subsection
may be held in camera.
(c) Request the court to limit the participation of the person
initiating the action. If the attorney general demonstrates to the
court that unrestricted participation by the person initiating the
action during the litigation would interfere with or unduly delay
the attorney general's prosecution of the case or would be
repetitious, irrelevant, or unduly harassing, the court may do any
of the following:
(i) Limit the number of the person's witnesses.
(ii) Limit the length of the testimony of the person's
witnesses.
(iii) Limit the person's cross-examination of witnesses.
(iv) Otherwise limit the person's participation in the
litigation.
(6) Except as otherwise provided in this subsection, if the
attorney general notifies the court that he or she declines to take
over the action under subsection (3), the attorney general shall
not be a party to the action. At the attorney general's request and
expense, the attorney general shall be provided with copies of all
pleadings filed in the action and copies of all deposition
transcripts. The court may permit the attorney general to intervene
in the action at any time upon a showing of good cause and, subject
to subsection (7), without affecting the rights or status of the
person initiating the action.
(7) Upon a showing, conducted in camera, that actions of the
person initiating the action during discovery would interfere with
the attorney general's investigation or prosecution of a criminal
or civil matter, the court may stay the discovery for not more than
90 days. The court may extend the stay upon a further showing that
the attorney general is pursuing the investigation or proceeding
with reasonable diligence and the discovery would interfere with
the ongoing investigation or proceeding.
(8) Subject to subsections (9) and (10), if a person other
than the attorney general or the attorney general prevails in an
action that the person initiates under this section, the court
shall award the person necessary expenses, costs, reasonable
attorney fees, and, based on the amount of effort involved, the
following percentage of the monetary proceeds resulting from the
action or any settlement of the claim:
(a) If the attorney general intervenes, 15% to 25%.
(b) If the attorney general does not intervene, 25% to 30%.
(9) If the court finds an action under this section to be
based primarily on disclosure of specific information that was not
provided by the person bringing the action, such as information
from a criminal, civil, or administrative hearing in a state or
federal department or agency, a legislative report, hearing, audit,
or investigation, or the news media, and the attorney general
proceeds with the action, the court may award the person bringing
the action no more than 10% of the monetary recovery in addition to
necessary expenses, costs, and reasonable attorney fees.
(10) If the court finds that the person bringing an action
under this section planned and initiated the conduct upon which the
action is brought, then the court may reduce or eliminate, as it
considers appropriate, the share of the proceeds of the action that
the person would otherwise be entitled to receive. A person who is
convicted of criminal conduct arising from the use or authorization
of the use of public resources to establish or administer a payroll
deduction plan to collect or deliver a contribution to a committee
shall not initiate or remain a party to an action under this
section and is not entitled to share in the monetary proceeds
resulting from the action or any settlement under this section.
(11) A person other than the attorney general shall not bring
an action under this section that is based on allegations or
transactions that are the subject of a civil suit or an
administrative hearing to which this state is already a party under
section 15. A court shall dismiss an action brought in violation of
this subsection. A suit may be filed under this section that is
based on allegations or transactions that are the subject of a
complaint filed under section 15, whether or not the complaint was
dismissed.
(12) This state and the attorney general are not liable for
any expenses, costs, or attorney fees that a person incurs in
bringing an action under this section. Any amount awarded to a
person initiating an action to enforce the prohibition on the use
or authorization of the use of public resources to establish or
administer a payroll deduction plan to collect or deliver a
contribution to a committee is payable solely from the proceeds of
the action or settlement.
(13) Any amounts awarded or equitable relief granted by the
court under this section may be awarded or granted against either
the public body or an individual acting for a public body that uses
or authorizes the use of public resources to establish or
administer a payroll deduction plan to collect or deliver a
contribution to a committee, as determined by the court.
(14) The attorney general may recover all costs this state
incurs in the litigation and recovery of public resources under
this section, including the cost of investigation and attorney
fees.
(15) An employer shall not discharge, demote, suspend,
threaten, harass, or, in any other manner, discriminate against an
employee in the terms and conditions of employment because the
employee engaged in lawful acts, including initiating, assisting
in, or participating in an action under this section or because the
employee cooperates with or assists in an investigation under this
section. This prohibition does not apply to any of the following:
(a) An employment action against an employee who the court
finds brought a frivolous claim, as defined in section 2591 of the
revised judicature act of 1961, 1961 PA 236, MCL 600.2591.
(b) An employment action against an employee who the court
finds to have planned and initiated the conduct upon which the
action is brought.
(c) An employment action against an employee who is convicted
of criminal conduct arising from the use or authorization of the
use of public resources to establish or administer a payroll
deduction plan to collect or deliver a contribution to a committee.
(16) An employer who violates subsection (15) is liable to the
employee for all of the following:
(a) Reinstatement to the employee's position without loss of
seniority.
(b) Two times the amount of lost back pay.
(c) Interest on the back pay.
(d) Compensation for any special damages.
(e) Any other relief necessary to make the employee whole.
(17) An action brought by the attorney general under this
section may be filed in Ingham county and may be prosecuted to
final judgment in satisfaction there.
(18) A person may bring a civil action under this section in
any county in which venue is proper. If the attorney general
intervenes under subsection (3) or (6) and the court grants the
request, upon motion by the attorney general, the court shall
transfer the action to the Ingham county circuit court.
(19) Process issued by a court in which an action is filed
under this section may be served anywhere in the state.
Enacting section 1. It is the policy of this state that a
public body shall maintain strict neutrality in each election and
that a public body or a person acting on behalf of a public body
shall not attempt to influence the outcome of an election held in
the state. If there is a perceived ambiguity in the interpretation
of section 57, that section shall be construed to best effectuate
the policy of strict neutrality by a public body in an election.