Relates to defining the term "express advocacy"

2 Co-sponsors

• Michael Gianaris
• José M. Serrano

BILL NUMBER:S1460

Title of bill

An act to amend the election law, in relation to defining the term "express advocacy"

Subject and purpose

To enhance and strengthen New York State's campaign finance laws by defining, for the first time in New York State law, the terms "independent expenditure" and "express advocacy." This bill aims to ensure that entities engaged in express advocacy of candidates are captured by the registration and disclosure provisions of the election law.

Summary and description of provisions

The bill adds new subdivisions 12 and 13 to § 14-100 of the Election Law to define "express advocacy" and "independent expenditure", respectively.

The new definition of "express advocacy" captures, and subjects to full disclosure under the Election Law, those entities that are engaged in express advocacy activity which has heretofore not been captured by the statute.

The new definition of "independent expenditure" expands the definition of this term as recently adopted by the New York State Board of Elections in its regulations. This new definition states that independent expenditures also include references to "clearly identified candidates" as set forth in the definition of "express advocacy."

Legislative history

None.

Justification

This bill will bolster and tighten New York State's campaign finance laws by mandating that those organizations engaging in express advocacy of candidates fully disclose their sources of funding and how much they spend on political communications and thereby giving citizens a clearer view of the election-related communications landscape.

The nexus of New York State's current definition of "express advocacy" (contained in SBOE regulations) is found in the 1976 U.S. Supreme Court decision Buckley v. Valeo. In Buckley, the Supreme Court, amongst other things, held that use of certain words (later deemed the "eight magic words") in an election-related communication rendered that communication "express advocacy" and therefore subject to limits and disclosure under federal campaign finance laws.

Following the reasoning in Buckley, New York law currently only requires financial disclosure for organizations engaging in election-related communications which expressly advocates for or against candidates using any of the "eight magic words."

Both the Federal Election Commission and the Campaign Finance Board of the city of New York have adopted a "functional equivalent" standard regarding "express advocacy." This means that if an election-related communication does not contain any of the "eight magic words" but rather the functional equivalent of them, then such election-related communication shall be deemed "express advocacy" and subject to full disclosure. This bill strengthens New York State campaign finance law

by broadening its scope though incorporation of this "functional equivalent" standard.

It is particularly important that the "functional equivalent" standard be written into New York law now, a time when the involvement of independent expenditure groups in our elections are on the rise and their support or opposition of candidates has reached new levels.

Fiscal implications

There will be additional costs to the State Board of Elections for oversight and enforcement duties associated with the changes contained herein.

Effective date

This act takes effect immediately.