Stricken language would be deleted from and underlined language would be added to present law.
1 State of Arkansas
2 94th General Assembly A Bill
3 Regular Session, 2023 SENATE BILL 585
4
5 By: Senator C. Tucker
6
7 For An Act To Be Entitled
8 AN ACT TO REQUIRE REPORTING AND DISCLOSURE OF
9 ELECTIONEERING COMMUNICATIONS; TO RESTRICT THE AMOUNT
10 OF MONEY SPENT ON CAMPAIGN COMMUNICATIONS PRODUCED IN
11 COORDINATION WITH A CANDIDATE FOR OFFICE; TO AMEND
12 THE LAW CONCERNING CAMPAIGN FINANCE CONTRIBUTIONS;
13 AND FOR OTHER PURPOSES.
14
15
16 Subtitle
17 TO REQUIRE REPORTING AND DISCLOSURE OF
18 ELECTIONEERING COMMUNICATIONS; AND TO
19 RESTRICT THE AMOUNT OF MONEY SPENT ON
20 CAMPAIGN COMMUNICATIONS PRODUCED IN
21 COORDINATION WITH A CANDIDATE FOR OFFICE.
22
23
24 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
25
26 SECTION 1. Arkansas Code Title 7, Chapter 6, Subchapter 2, is amended
27 to add an additional section to read as follows:
28 7-6-232. Coordinated communications.
29 (a)(1) A coordinated communication is an in-kind contribution to the
30 candidate, political party, ballot question committee, or independent
31 expenditure committee who or to the candidate, political party, ballot
32 question committee, or independent expenditure committee whose authorized
33 committee or agent cooperated, consulted, requested, suggested, or acted in
34 concert with:
35 (A) The person making the coordinated communication or his
36 or her authorized agent; or
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1 (B) The person making the expenditure for the coordinated
2 communication or his or her authorized agent.
3 (2) The in-kind contribution under subdivision (a)(1) of this
4 section shall be subject to the contribution limits set forth under § 7-6-
5 203.
6 (b)(1) As used in this section, "coordinated communication" means a
7 political advertisement or communication funded by expenditures that contain
8 express advocacy or the functional equivalent of express advocacy made:
9 (A) In cooperation or consultation between:
10 (i)(a) A candidate or his or her authorized
11 committee or agent;
12 (b) A political party or its authorized agent;
13 (c) A ballot question committee; or
14 (d) An independent expenditure committee; and
15 (ii) The person making the:
16 (a) Communication or his or her authorized
17 agent; or
18 (b) Expenditure for the communication or his
19 or her authorized agent;
20 (B) In concert with or at the request or suggestion of:
21 (i) A candidate or his or her authorized committee
22 or agent;
23 (ii) A political party or its authorized agent;
24 (iii) A ballot question committee; or
25 (iv) An independent expenditure committee.
26 (2) "Coordinated communication" does not include:
27 (A) A candidate's, a political party committee's, a ballot
28 question committee's, or an independent expenditure committee's response to
29 an inquiry about that candidate's, political party committee's, ballot
30 question committee's, or independent expenditure committee's positions on
31 legislative or policy issues unless the response or the inquiry concerns the
32 plans, projects, activities, or needs of the campaign;
33 (B) Unless the public communication promotes, supports,
34 attacks, or opposes the endorsing candidate or another candidate who seeks
35 election to the same office the endorsing candidate is seeking, a public
36 communication:
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1 (i) In which a candidate endorses another candidate;
2 and
3 (ii) That is made by the endorsing candidate;
4 (C) Unless the public communication promotes, supports,
5 attacks, or opposes the soliciting candidate or another candidate who seeks
6 election to the same office the soliciting candidate is seeking, a public
7 communication:
8 (i) In which a candidate solicits funds:
9 (a) For another candidate;
10 (b) For a political committee; or
11 (c) On behalf of an organization concerning a
12 state or local election in a manner corresponding to the circumstances set
13 forth in 11 C.F.R. § 300.65; and
14 (ii) That is made by the soliciting candidate; or
15 (D) A public communication in which a candidate is clearly
16 identified only in his or her capacity as the owner or operator of a business
17 that existed prior to the candidacy if:
18 (i) The medium, timing, content, and geographic
19 distribution of the public communication are consistent with public
20 communications made prior to the candidacy; and
21 (ii) The public communication does not promote,
22 support, attack, or oppose the communicating candidate or another candidate
23 who seeks election to the same office the communicating candidate is seeking.
24 (c)(1) In making a determination as to whether a communication is a
25 coordinated communication, the Arkansas Ethics Commission shall consider the
26 following without limitation:
27 (A) Whether the coordinated communication was paid for, in
28 whole or in part, by a person other than the candidate or his or her agent,
29 the candidate's authorized committee or its agent, or a political party or
30 its agent;
31 (B) Whether the content of the coordinated communication
32 is a public communication that republishes, disseminates, or distributes, in
33 whole or in part, campaign materials prepared by a candidate or a candidate's
34 campaign committee other than a photograph or other likeness of the candidate
35 obtained from a publicly available source; and
36 (C) Whether the conduct of the coordinated communication
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1 meets one (1) or more of the following standards:
2 (i) The coordinated communication was created,
3 produced, or distributed at the request or suggestion of the candidate or his
4 or her agent, the candidate's committee or its agent, or the political party
5 or its agent;
6 (ii) The coordinated communication was created,
7 produced, or distributed at the request or suggestion of the person paying
8 for the communication, and the candidate or his or her agent, the candidate's
9 committee or its agent, or the political party or its agent approves the
10 request or suggestion;
11 (iii) The candidate or his or her agent, the
12 candidate's committee or its agent, or the political party or its agent was
13 materially involved in decisions regarding the content, intended audience,
14 means or mode of the coordinated communication, specific media outlet used,
15 timing, frequency, size, or prominence of the coordinated communication; or
16 (iv) The coordinated communication was created,
17 produced, or distributed after one (1) or more substantial discussions about
18 the communication between the person paying for the communication or the
19 employees or agents of that person and:
20 (a) The candidate or his or her agent;
21 (b) The candidate's committee or its agent;
22 (c) The political party or its agent;
23 (d) A ballot question committee; or
24 (e) An independent expenditure committee.
25 (2) As used in this section, "candidate" means the candidate who
26 is positioned to benefit from the coordinated communication, whether the
27 coordinated communication promotes that candidate or criticizes his or her
28 opponent.
29 (d)(1) A person or an entity is an authorized agent of a candidate, a
30 candidate's committee, or a political party under this section if the person
31 or entity:
32 (A) Has actual authorization, either expressed or implied,
33 from a specific principal to engage in specific activities; and
34 (B) Engages in the activities on behalf of that specific
35 principal.
36 (2) If the activities carried out by an authorized agent would
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1 result in a coordinated communication if carried out directly by the
2 candidate, authorized committee staff, or a political party official, the
3 activities of the authorized agent result in a coordinated communication.
4 (e) As used in this section:
5 (1)(A) "Political advertisement" means any campaign
6 communication:
7 (i) That is in any form, including without
8 limitation the following medias:
9 (a) Broadcast;
10 (b) Satellite;
11 (c) Cable;
12 (d) Electronic;
13 (e) Digital;
14 (f) Written;
15 (g) Print;
16 (h) Graphic; and
17 (i) Design;
18 (ii) That is publicly distributed;
19 (iii) Except as provided in subdivision (e)(1)(B) of
20 this section, that the person or committee making the advertisement or
21 communication pays money for the production or dissemination of the
22 advertisement or communication;
23 (iv) That refers to a clearly identified candidate
24 for public office;
25 (v) That is targeted to the relevant electorate for
26 that candidate; and
27 (vi) For which the only reasonable interpretation of
28 the advertisement or communication is that the advertisement or communication
29 is an attempt to influence a vote for or against a specific candidate or
30 specific set of candidates.
31 (B)(i) Payment of money under subdivision (e)(1)(A)(iii)
32 of this section does not include:
33 (a) Utility payments for telephone or internet
34 service made by the person or committee making the advertisement or
35 communication; or
36 (b) The costs of producing copies of flyers,
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1 handbills, or other documents to be distributed by hand by one (1) or more
2 volunteers.
3 (ii) Payment of money under subdivision
4 (e)(1)(A)(iii) of this section includes without limitation money paid to a
5 person in exchange for the distribution by hand of printed advertisement or
6 printed communication such as door hangers or push cards.
7 (C) In making a determination under subdivision
8 (e)(1)(A)(vi) of this section, the Arkansas Ethics Commission shall consider:
9 (i) Whether the advertisement or communication
10 offers preferential support for or criticism of a clearly identified
11 candidate for office;
12 (ii) The proximity between the date of the
13 advertisement or communication and the date of the election for the clearly
14 identified candidate for office; and
15 (iii) Any other factor the commission deems relevant
16 to its determination.
17 (D) "Political advertisement" does not include any
18 communication that:
19 (i) Unless the facilities are owned or controlled by
20 any political party, political committee, or candidate, appears in a news
21 story, commentary, or editorial distributed through the facilities of any:
22 (a) Broadcast, cable, satellite radio, or
23 television station; or
24 (b) Newspaper, magazine, print media, or
25 internet media business;
26 (ii) Constitutes an independent expenditure that is
27 reported as required under this subchapter;
28 (iii) Constitutes a candidate debate or forum
29 conducted, or that solely promotes such a debate or forum and is made by or
30 on behalf of the person sponsoring the debate or forum;
31 (iv) Is disseminated as a flyer, handbill, or other
32 document distributed by hand by one (1) or more volunteers;
33 (v) Is disseminated by an organization to the
34 organization's own membership as reflected in the organizations membership
35 records or to persons who have requested to receive communications from the
36 organization for the purpose of indicating candidates whom the organization
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1 supports in an upcoming election; or
2 (vi) Is disseminated by a person or committee on the
3 official website or social media account maintained by the person or
4 committee making the advertisement or communication;
5 (2) "Refers to a clearly identified candidate" means that the
6 candidate's name, nickname, photograph, or drawing appears, or the identity
7 of the candidate is otherwise apparent through an unambiguous reference such
8 as "the Governor", "your county judge", or "the incumbent", or through an
9 unambiguous reference to his or her status as a candidate such as "the
10 Republican nominee for Governor" or "the Democratic candidate for Secretary
11 of State in the State of Arkansas"; and
12 (3) "Targeted to the relevant electorate" means:
13 (A) If the advertisement or communication is publicly
14 distributed by a broadcast, cable, satellite radio, or television station or
15 by a newspaper, magazine, or other print media, the advertisement or
16 communication can be seen, heard, or read:
17 (i) By at least twenty-five thousand (25,000)
18 viewers, listeners, or readers in the state, in the case of a candidate for
19 statewide office;
20 (ii) By at least ten percent (10%) of a county,
21 municipality, or district population, in the case of a candidate for a county
22 office, municipal office, school district board of directors, or other
23 district office that is not the Senate or the House of Representatives; or
24 (iii) By at least two thousand five hundred (2,500)
25 viewers, listeners, or readers in the district, in the case of a candidate
26 for the Senate or the House of Representatives;
27 (B) If the advertisement or communication is publicly
28 distributed by direct mail, electronic mail, telephone, or by hand by a
29 person who has been paid to distribute the advertisement or communication,
30 the advertisement or communication is sent to or distributed to:
31 (i) At least two thousand five hundred (2,500)
32 individuals in the state, in the case of a candidate for statewide office;
33 (ii) At least one percent (1%) of a county,
34 municipality, or district population, in the case of a candidate for a county
35 office, municipal office, school district board of directors, or other
36 district office that is not the Senate or the House of Representatives; or
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1 (iii) At least two hundred and fifty (250)
2 individuals, i