Has SB 120 – “The Incumbent Protection Act” – become law or not?

by Susan Olsen

Seems the Democrat Governors’ Association (DGA), of which NH Governor Hassan is vice chair, has sued the state of Connecticut this past April alleging that its campaign finance restrictions violate free speech. Could this be why NH’s own SB 120 , the “Incumbent Protection Act”, enrolled on June 4, 2014, has either not literally been signed by Governor Hassan, or was allowed to come into effect 5 days after being presented to her?

DGA challenges Connecticut’s campaign finance restrictions

According to an article in Connecticut Mirror dated April 23, 2014, ‘”DGA has been forced into a constitutionally untenable choice: it can avoid the protected speech in which it seeks to engage; it can forego the support and participation of Connecticut’s citizens in raising the funds that it needs to maintain a robust national program; or it can entertain the very real threats of investigation, fines and criminal prosecution,” the lawsuit states.’

 

The article quotes the suit “Connecticut’s campaign finance laws and declaratory rulings by the State Elections Enforcement Commission (SEEC), conflict with Supreme Court First Amendment precedent and place a cloud of uncertainty over what DGA may say or do without fear of prosecution.

Further, the lawsuit states that “The Supreme Court has held that the government has no compelling interest in regulating speech that does not qualify as express advocacy or its functional equivalent… Yet Connecticut campaign finance law regulates “expenditures,” and defines that term so broadly as to reach speech that the Constitution does not allow it to regulate. Indeed, the definition of “expenditure” is so broad as to include most communications that refer to a candidate for public office, even if such communications do not include express advocacy or its functional equivalent. This expansive definition violates the Federal Constitution.” [See Conn.Gen. Stat. § 9-601b reprinted below]

9-601b.(Formerly Sec. 9-333c). “Expenditure” defined.(a) As used in this chapter and chapter 157, the term “expenditure” means:

(1)Any purchase, payment, distribution, loan, advance, deposit or gift of money or anything of value, when made to promote the success or defeat of any candidate seeking the nomination for election, or election, of any person or for the purpose of aiding or promoting the success or defeat of any referendum question or the success or defeat of any political party;

(2)Any communication that (A) refers to one or more clearly identified candidates, and (B) is broadcast by radio, television, other than on a public access channel, or by satellite communication or via the Internet, or as a paid-for telephone communication, or appears in a newspaper, magazine or on a billboard, or is sent by mail; or

(3)The transfer of funds by a committee to another committee.

(b)The term “expenditure” does not mean:

(1)A loan of money, made in the ordinary course of business, by a state or national bank;

(2)A communication made by any corporation, organization or association solely to its members, owners, stockholders, executive or administrative personnel, or their families;

(3)Nonpartisan voter registration and get-out-the-vote campaigns by any corporation, organization or association aimed at its members, owners, stockholders, executive or administrative personnel, or their families;

(4)Uncompensated services provided by individuals volunteering their time on behalf of a party committee, political committee, slate committee or candidate committee, including any services provided for the benefit of nonparticipating and participating candidates under the Citizens’ Election Program and any unreimbursed travel expenses made by an individual who volunteers the individual’s personal services to any such committee. For purposes of this subdivision, an individual is a volunteer if such individual is not receiving compensation for such services regardless of whether such individual received compensation in the past or may receive compensation for similar services that may be performed in the future;

(5)Any news story, commentary or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical, unless such facilities are owned or controlled by any political party, committee or candidate;

(6)The use of real or personal property, a portion or all of the cost of invitations and the cost of food or beverages, voluntarily provided by an individual to a candidate, including a nonparticipating or participating candidate under the Citizens’ Election Program, or to a party, political or slate committee, in rendering voluntary personal services at the individual’s residential premises or a community room in the individual’s residence facility, to the extent that the cumulative value of the invitations, food or beverages provided by an individual on behalf of any candidate or committee does not exceed four hundred dollars with respect to any single event or does not exceed eight hundred dollars for any such event hosted by two or more individuals, provided at least one such individual owns or resides at the residential premises, and further provided the cumulative value of the invitations, food or beverages provided by an individual on behalf of any such candidate or committee does not exceed eight hundred dollars with respect to a calendar year or single election, as the case may be;

(7)A communication described in subdivision (2) of subsection (a) of this section that includes speech or expression made (A) prior to the ninety-day period preceding the date of a primary or an election at which the clearly identified candidate or candidates are seeking nomination to public office or position, that is made for the purpose of influencing any legislative or administrative action, as defined in section 1-91, or executive action, or (B) during a legislative session for the purpose of influencing legislative action;

(8)An organization expenditure by a party committee, legislative caucus committee or legislative leadership committee;

(9)A commercial advertisement that refers to an owner, director or officer of a business entity who is also a candidate and that had previously been broadcast or appeared when the owner, director or officer was not a candidate;

(10)A communication containing an endorsement on behalf of a candidate for nomination or election to the office of Governor, Lieutenant Governor, Secretary of the State, State Treasurer, State Comptroller, Attorney General, state senator or state representative, from a candidate for the office of Governor, Lieutenant Governor, Secretary of the State, State Treasurer, State Comptroller, Attorney General, state senator or state representative, shall not be an expenditure attributable to the endorsing candidate, if the candidate making the endorsement is unopposed at the time of the communication;

(11)A communication that is sent by mail to addresses in the district for which a candidate being endorsed by another candidate pursuant to the provisions of this subdivision is seeking nomination or election to the office of state senator or state representative, containing an endorsement on behalf of such candidate for such nomination or election, from a candidate for the office of state senator or state representative, shall not be an expenditure attributable to the endorsing candidate, if the candidate making the endorsement is not seeking election to the office of state senator or state representative for a district that contains any geographical area shared by the district for the office to which the endorsed candidate is seeking nomination or election;

(12)Campaign training events provided to multiple individuals by a legislative caucus committee and any associated materials, provided the cumulative value of such events and materials does not exceed six thousand dollars in the aggregate for a calendar year;

(13)A lawful communication by any charitable organization which is a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended;

(14)The use of offices, telephones, computers and similar equipment provided by a party committee, legislative caucus committee or legislative leadership committee that serve as headquarters for or are used by such party committee, legislative caucus committee or legislative leadership committee; or

(15)An expense or expenses incurred by a human being acting alone in an amount that is two hundred dollars or less, in the aggregate, that benefits a candidate for a single election.

(c)”Expense incurred but not paid” means any receipt of goods or services for which payment is required but not made or a written contract, promise or agreement to make an expenditure.

(d)The provisions of subdivision (6) of subsection (b) of this section concerning the cost of invitations shall not be construed as preventing the candidate or the party, political or slate committee from paying all or any portion of such costs, in which case such amount paid by such candidate or committee shall not count toward the calculation of the cumulative value of the invitations, food or beverages provided pursuant to said subdivision (6).”

 

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