HB-4628, As Passed House, May 2, 2007

SUBSTITUTE FOR

HOUSE BILL NO. 4628

      A bill to amend 1976 PA 388, entitled

"Michigan campaign finance act,"

by amending sections 15, 16, 17, 18, 21, 22, 23, 24, 26, 28, 29,

30, 33, 34, 35, 36, 41, 42, 46, 47, 50, 51, 55, 57, 63, 64, 65,

67, 68, and 69 (MCL 169.215, 169.216, 169.217, 169.218, 169.221,

169.222, 169.223, 169.224, 169.226, 169.228, 169.229, 169.230,

169.233, 169.234, 169.235, 169.236, 169.241, 169.242, 169.246,

169.247, 169.250, 169.251, 169.255, 169.257, 169.263, 169.264,

169.265, 169.267, 169.268, and 169.269), sections 15, 26, 29, 42,

47, 57, and 69 as amended by 2001 PA 250, section 16 as amended

by 2000 PA 50, sections 17, 21, 23, and 51 as amended by 1989 PA

95, section 18 as amended by 2006 PA 89, sections 22, 24, 28, and

41 as amended by 1999 PA 237, section 30 as added by 1997 PA 71,

sections 33 and 34 as amended by 1999 PA 238, section 35 as

amended by 2000 PA 75, section 36 as amended by 1996 PA 590,

section 50 as added by 1994 PA 385, section 55 as amended by 1995

PA 264, sections 64 and 65 as amended by 1993 PA 262, and section

67 as amended by 1994 PA 411, and by adding sections 43a, 48, and

57a.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 1        Sec. 15. (1) The secretary of state director of elections

 2  shall do all of the following:

 3        (a) Discharge the powers and duties vested in the director

 4  of elections under this act independently and in a nonpartisan

 5  manner, with good faith. The substantive functions vested in the

 6  director of elections under this act are not subject to

 7  allocation or reallocation within the department of state under

 8  section 7 of the executive organization act of 1965, 1965 PA 380,

 9  MCL 16.107.

10  (b) (a) Make available through his or her the secretary of

11  state's offices, and furnish to county clerks, appropriate forms,

12  instructions, and manuals required by this act.

13  (c) (b) Develop a filing, coding, and cross-indexing system

14  for the filing of required reports and statements consistent with

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

16  filing systems by the clerks of the counties.

17  (d) (c) Receive all statements and reports required by this

18  act to be filed with the secretary of state director of

19  elections.

20  (e) (d) Prepare forms, instructions, and manuals required

 1  under this act.

 2  (f) (e) Promulgate rules and issue declaratory rulings to

 3  implement this act in accordance with the administrative

 4  procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

 5  (g) (f) Upon receipt of a written request and the required

 6  filing, waive payment of a late filing fee if the request for the

 7  waiver is based on good cause and accompanied by adequate

 8  documentation. One or more of the following reasons constitute

 9  good cause for a late filing fee waiver:

10        (i) The incapacitating physical illness, hospitalization,

11  accident involvement, death, or incapacitation for medical

12  reasons of a person required to file, a person whose

13  participation is essential to the preparation of the statement or

14  report, or a member of the immediate family of these persons.

15        (ii) Other unique, unintentional factors beyond the filer's

16  control not stemming from a negligent act or nonaction so that a

17  reasonably prudent person would excuse the filing on a temporary

18  basis. These factors include the loss or unavailability of

19  records due to a fire, flood, theft, or similar reason and

20  difficulties related to the transmission of the filing to the

21  filing official, such as exceptionally bad weather or strikes

22  involving transportation systems.

23        (2) A declaratory ruling shall be issued under this section

24  only if the person requesting the ruling has provided a

25  reasonably complete statement of facts necessary for the ruling

26  or if the person requesting the ruling has, with the permission

27  of the secretary of state director of elections, supplied

 1  supplemental facts necessary for the ruling. A request for a

 2  declaratory ruling that is submitted to the secretary of state

 3  director of elections shall be made available for public

 4  inspection within 48 hours after its receipt. An interested

 5  person may submit written comments regarding the request to the

 6  secretary of state director of elections within 10 business days

 7  after the date the request is made available to the public.

 8  Within 45 business days after receiving a declaratory ruling

 9  request, the secretary of state director of elections shall make

10  a proposed response available to the public. An interested person

11  may submit written comments regarding the proposed response to

12  the secretary of state director of elections within 5 business

13  days after the date the proposal is made available to the public.

14  Except as otherwise provided in this section, the secretary of

15  state director of elections shall issue a declaratory ruling

16  within 60 business days after a request for a declaratory ruling

17  is received. If the secretary of state director of elections

18  refuses to issue a declaratory ruling, the secretary of state

19  director of elections shall notify the person making the request

20  of the reasons for the refusal and shall issue an interpretative

21  statement providing an informational response to the question

22  presented within the same time limitation applicable to a

23  declaratory ruling. A declaratory ruling or interpretative

24  statement issued under this section shall not state a general

25  rule of law, other than that which is stated in this act, until

26  the general rule of law is promulgated by the secretary of state

27  director of elections as a rule under the administrative

 1  procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, or

 2  under judicial order.

 3        (3) Under extenuating circumstances, the secretary of state

 4  director of elections may issue a notice extending for not more

 5  than 30 business days the period during which the secretary of

 6  state director of elections shall respond to a request for a

 7  declaratory ruling. The secretary of state director of elections

 8  shall not issue more than 1 notice of extension for a particular

 9  request. A person requesting a declaratory ruling may waive, in

10  writing, the time limitations provided by this section.

11        (4) The secretary of state director of elections shall make

12  available to the public an annual summary of the declaratory

13  rulings and interpretative statements issued by the secretary of

14  state director of elections.

15        (5) A person may file with the secretary of state director

16  of elections a complaint that alleges a violation of this act.

17  Within 5 business days after a complaint that meets the

18  requirements of subsection (6) is filed, the secretary of state

19  director of elections shall give notice to the person against

20  whom the complaint is filed. The notice shall include a copy of

21  the complaint. Within 15 business days after this notice is

22  provided, the person against whom the complaint was filed may

23  submit to the secretary of state director of elections a

24  response. The secretary of state director of elections may extend

25  the period for submitting a response an additional 15 business

26  days for good cause. The secretary of state director of elections

27  shall provide a copy of a response received to the complainant.

 1  Within 10 business days after receiving a copy of the response,

 2  the complainant may submit to the secretary of state director of

 3  elections a rebuttal statement. The secretary of state director

 4  of elections may extend the period for submitting a rebuttal

 5  statement an additional 10 business days for good cause. The

 6  secretary of state director of elections shall provide a copy of

 7  the rebuttal statement to the person against whom the complaint

 8  was filed.

 9        (6) A complaint under subsection (5) shall satisfy all of

10  the following requirements:

11        (a) Be signed by the complainant.

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

13  complainant.

14        (c) Include the complainant's certification that, to the

15  best of the complainant's knowledge, information, and belief,

16  formed after a reasonable inquiry under the circumstances, each

17  factual contention of the complaint is supported by evidence.

18  However, if, after a reasonable inquiry under the circumstances,

19  the complainant is unable to certify that certain factual

20  contentions are supported by evidence, the complainant may

21  certify that, to the best of his or her knowledge, information,

22  or belief, there are grounds to conclude that those specifically

23  identified factual contentions are likely to be supported by

24  evidence after a reasonable opportunity for further inquiry.

25        (7) The secretary of state director of elections shall

26  develop a form that satisfies the requirements of subsection (6)

27  and may be used for the filing of complaints.

 1        (8) A person who files a complaint with a false certificate

 2  under subsection (6)(c) is responsible for a civil violation of

 3  this act. A person may file a complaint under subsection (5)

 4  alleging that another person has filed a complaint with a false

 5  certificate under subsection (6)(c).

 6        (9) The secretary of state director of elections shall

 7  investigate the allegations under the rules promulgated under

 8  this act. Every 60 days after a complaint that meets the

 9  requirements of subsection (6) is filed and until the matter is

10  terminated, the secretary of state director of elections shall

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

12  action taken to date by the secretary of state director of

13  elections, together with the reasons for the action or nonaction.

14        (10) If the secretary of state director of elections

15  determines that there may be reason to believe that a violation

16  of this act has occurred, the secretary of state director of

17  elections shall endeavor to correct the violation or prevent a

18  further violation by using informal methods such as a conference,

19  conciliation, or persuasion, and may enter into a conciliation

20  agreement with the person involved. Unless violated, a

21  conciliation agreement is a complete bar to any further action

22  with respect to matters covered in the conciliation agreement. If

23  the secretary of state director of elections is unable to correct

24  or prevent further violation by these informal methods, the

25  secretary of state director of elections may refer the matter to

26  the attorney general for the enforcement of a criminal penalty

27  provided by this act or commence a hearing as provided in

 1  subsection (11). If the violation involves the attorney general

 2  or a campaign or committee with which the attorney general is

 3  connected, directly or indirectly, the director of elections

 4  shall refer the matter to the prosecuting attorney for the county

 5  of Ingham for the enforcement of a criminal penalty provided by

 6  this act.

 7        (11) The secretary of state director of elections may

 8  commence a hearing to determine whether a civil violation of this

 9  act has occurred. A hearing shall not be commenced during the

10  period beginning 30 days before an election in which the

11  committee has received or expended money and ending the day after

12  that election except with the consent of the person suspected of

13  committing a civil violation. The hearing shall be conducted in

14  accordance with the procedures set forth in chapter 4 of the

15  administrative procedures act of 1969, 1969 PA 306, MCL 24.271 to

16  24.287. If after a hearing the secretary of state director of

17  elections determines that a violation of this act has occurred,

18  the secretary of state director of elections may issue an order

19  requiring the person to pay a civil fine equal to the amount of

20  the improper contribution or expenditure plus not more than

21  $1,000.00 for each violation.

22        (12) A final decision and order issued by the secretary of

23  state director of elections is subject to judicial review as

24  provided by chapter 6 of the administrative procedures act of

25  1969, 1969 PA 306, MCL 24.301 to 24.306. The secretary of state

26  director of elections shall deposit a civil fine imposed under

27  this section in the general fund. The secretary of state director

 1  of elections may bring an action in circuit court to recover the

 2  amount of a civil fine.

 3        (13) When a report or statement is filed under this act, the

 4  secretary of state director of elections shall review the report

 5  or statement and may investigate an apparent violation of this

 6  act under the rules promulgated under this act. If the secretary

 7  of state director of elections determines that there may be

 8  reason to believe a violation of this act has occurred and the

 9  procedures prescribed in subsection (10) have been complied with,

10  the secretary of state director of elections may refer the matter

11  to the attorney general for the enforcement of a criminal penalty

12  provided by this act, or commence a hearing under subsection (11)

13  to determine whether a civil violation of this act has occurred.

14  If the violation involves the attorney general or a campaign or

15  committee with which the attorney general is connected, directly

16  or indirectly, the director of elections shall refer the matter

17  to the prosecuting attorney for the county of Ingham for the

18  enforcement of a criminal penalty provided by this act.

19        (14) Unless otherwise specified in this act, a person who

20  violates a provision of this act is subject to a civil fine of

21  not more than $1,000.00 for each violation. A civil fine is in

22  addition to, but not limited by, a criminal penalty prescribed by

23  this act.

24        (15) In addition to any other sanction provided for by this

25  act, the secretary of state director of elections may require a

26  person who files a complaint with a false certificate under

27  subsection (6)(c) to do either or both of the following:

 1        (a) Pay to the secretary of state director of elections some

 2  or all of the expenses incurred by the secretary of state

 3  director of elections as a direct result of the filing of the

 4  complaint.

 5        (b) Pay to the person against whom the complaint was filed

 6  some or all of the expenses, including, but not limited to,

 7  reasonable attorney fees incurred by that person in proceedings

 8  under this act as a direct result of the filing of the complaint.

 9        (16) There is no private right of action, either in law or

10  in equity, under this act. The remedies provided in this act are

11  the exclusive means by which this act may be enforced and by

12  which any harm resulting from a violation of this act may be

13  redressed.

14        (17) The secretary of state director of elections may waive

15  the filing of a campaign statement required under section 33, 34,

16  or 35 if the closing date of the particular campaign statement

17  falls on the same or a later date as the closing date of the next

18  campaign statement filed by the same person, or if the period

19  that would be otherwise covered by the next campaign statement

20  filed by the same person is 10 days or less.

21        (18) The clerk of each county shall do all of the following:

22        (a) Make available through the county clerk's office the

23  appropriate forms, instructions, and manuals required by this

24  act.

25        (b) Under the supervision of the secretary of state director

26  of elections, implement the filing, coding, and cross-indexing

27  system prescribed for the filing of reports and statements

 1  required to be filed with the county clerk's office.

 2        (c) Receive all statements and reports required by this act

 3  to be filed with the county clerk's office.

 4        (d) Upon written request, waive the payment of a late filing

 5  fee if the request for a waiver is based on good cause as

 6  prescribed in subsection (1)(f).

 7        Sec. 16. (1) A filing official shall make a statement or

 8  report required to be filed under this act available for public

 9  inspection and reproduction, commencing as soon as practicable,

10  but not later than the third business day following the day on

11  which it is received, during regular business hours of the filing

12  official. If the report is a report of a late contribution under

13  section 32(1) made to the secretary of state director of

14  elections, the secretary of state director of elections shall

15  also make the report or all of the contents of the report

16  available to the public on the internet, without charge, as soon

17  as practicable but not later than the end of the business day on

18  which it is received, at a single website established and

19  maintained by the secretary of state director of elections.

20        (2) A copy of a statement or part of a statement shall be

21  provided by a filing official at a reasonable charge.

22        (3) A statement open to the public under this act shall not

23  be used for any commercial purpose.

24        (4) Except as otherwise provided in this subsection, a

25  statement of organization filed under this act with a filing

26  official who is not the secretary of state director of elections

27  shall be preserved by that filing official for 5 years from the

 1  official date of the committee's dissolution. A statement of

 2  organization filed under this act with a filing official who is

 3  not the secretary of state director of elections that is filed by

 4  a committee that received more than $50,000.00 in an election

 5  cycle shall be preserved by that filing official for 15 years

 6  from the official date of the committee's dissolution. A

 7  statement of organization filed under this act with the secretary

 8  of state director of elections shall be preserved by the

 9  secretary of state director of elections for 15 years from the

10  official date of the committee's dissolution. Except as otherwise

11  provided in this subsection, any other statement or report filed

12  under this act with a filing official who is not the secretary of

13  state director of elections shall be preserved by that filing

14  official for 5 years from the date the filing occurred. Any other

15  statement or report filed under this act with a filing official

16  who is not the secretary of state director of elections that is

17  filed by a committee that received more than $50,000.00 in an

18  election cycle shall be preserved by that filing official for 15

19  years from the date the filing occurred. Any other statement or

20  report filed under this act with the secretary of state director

21  of elections shall be preserved by the secretary of state

22  director of elections for 15 years from the date the filing

23  occurred. Upon a determination under section 15 that a violation

24  of this act has occurred, all complaints, orders, decisions, or

25  other documents related to that violation shall be preserved by

26  the filing official who is not the secretary of state director of

27  elections or the secretary of state director of elections for 15

 1  years from the date of the court determination or the date the

 2  violations are corrected, whichever is later. Statements and

 3  reports filed under this act may be reproduced pursuant to the

 4  records media reproduction act, 1992 PA 116, MCL 24.401 to 24.403

 5  24.406. After the required preservation period, the statements

 6  and reports, or the reproductions of the statements and reports,

 7  may be disposed of in the manner prescribed in the management and

 8  budget act, 1984 PA 431, MCL 18.1101 to 18.1594, and 1913 PA 271,

 9  MCL 399.1 to 399.10.

10        (5) A charge shall not be collected by a filing official for

11  the filing of a required statement or report or for a form upon

12  which the statement or report is to be prepared, except a late

13  filing fee required by this act.

14        (6) A filing official shall determine whether a statement or

15  report filed under this act complies, on its face, with the

16  requirements of this act and the rules promulgated under this

17  act. The filing official shall determine whether a statement or

18  report that is required to be filed under this act is in fact

19  filed. Within 4 business days after the deadline for filing a

20  statement or report under this act, the filing official shall

21  give notice to the filer by registered mail of an error or

22  omission in the statement or report and give notice to a person

23  the filing official has reason to believe is a person required to

24  and who failed to file a statement or report. A failure to give

25  notice by the filing official under this subsection is not a

26  defense to a criminal action against the person required to file.

27        (7) Within 9 business days after the report or statement is

House Bill No. 4628 (H-4) as amended May 2, 2007

 1  required to be filed, the filer shall make any corrections in the

 2  statement or report filed with the appropriate filing official.

 3  If the report or statement was not filed, then the report or

 4  statement shall be late filed within 9 business days after the

 5  time it was required to be filed and shall be is subject to late

 6  filing fees.

 7        (8) After 9 business days and before 12 business days have

 8  expired after the deadline for filing the statement or report,

 9  the filing official shall report errors or omissions that were

10  not corrected and failures to file to the attorney general or, if

11  the errors or omissions or failure to file involves the attorney

12  general or a campaign or committee with which the attorney

13  general is connected, directly or indirectly, the director of

14  elections shall refer the matter to the prosecuting attorney for

15  the county of Ingham for the enforcement of a criminal penalty

16  provided by this act.

17        (9) A statement or report required to be filed under this

18  act shall be filed not later than 5 p.m. [or, if filed electronically,
    11:59 p.m.] of the day in which it

19  is required to be filed. A preelection statement or report due on

20  July 25 or October 25 under section 33 that is postmarked by

21  registered or certified mail, or sent by express mail or other

22  overnight delivery service, at least 2 days before the deadline

23  for filing is filed within the prescribed time regardless of when

24  it is actually delivered. Any other statement or report required

25  to be filed under this act that is postmarked by registered or

26  certified mail or sent by express mail or other overnight

27  delivery service on or before the deadline for filing is filed

 1  within the prescribed time regardless of when it is actually

 2  delivered.

 3        Sec. 17. (1) A person paying a late filing fee as a result

 4  of that person's failure to file a statement or report shall pay

 5  that fee to the filing official with whom the statement or report

 6  was required to be filed.

 7        (2) The late filing fees collected pursuant to sections 24,

 8  33, 34, and 35, and copying charges collected pursuant to section

 9  16, shall be retained by and for the use of the filing officials

10  collecting the fees or charges to cover their expenses in

11  administering this act. A late filing fee assessed by a county

12  clerk that remains unpaid for more than 60 days shall be

13  considered a debt of the county and shall be collected by the

14  county treasurer in the same manner as other county debts are

15  collected. A late filing fee assessed by the secretary of state

16  director of elections that remains unpaid for more than 180 days

17  shall be referred to the department of treasury for collection.

18        (3) A committee, other than a candidate committee or a

19  committee making expenditures in assistance of or in opposition

20  to the qualification, passage, or defeat of a ballot question,

21  required to file with the secretary of state director of

22  elections is not required to pay a late filing fee pursuant to

23  sections 24, 33, 34, and 35, if all of the following conditions

24  are met:

25        (a) A committee required to register as a committee fails to

26  file a statement of organization.

27        (b) The secretary of state director of elections sends to

 1  that committee notice of the committee's failure to file a

 2  statement of organization.

 3        (c) At the same time or after the notice described in

 4  subdivision (b) is sent, the secretary of state director of

 5  elections sends to that committee notice of the committee's

 6  failure to file a campaign statement that was due for a period

 7  that occurred before the notice of failure to file a statement of

 8  organization was sent.

 9        (d) Within 10 business days after the notice of failure to

10  file a statement of organization is sent, the committee files a

11  statement of organization.

12        (e) Within 10 business days after the notice of failure to

13  file a campaign statement is sent, the committee files every

14  campaign statement that is due.

15        (4) Late filing fees that would have occurred except for