Introduced Version






SENATE BILL No. 290

_____


DIGEST OF INTRODUCED BILL


Citations Affected: IC 3-9; IC 3-14-1.

Synopsis: Disclosure of persuasion polls. Defines a "persuasion poll" as a telephone survey that: (1) includes more than 500 calls; (2) references a candidate in any election or caucus; and (3) is designed to provide negative information about a candidate or to influence the respondent to vote for or against a candidate. Prohibits a person from sponsoring, authorizing, conducting, or administering a persuasion poll unless the caller identifies at the end of the call the person sponsoring and authorizing the call. Requires that if a candidate's committee neither sponsors nor authorizes a call, the caller must state that the call is not authorized by any candidate or candidate's committee. Makes a violation of these provisions a Class B misdemeanor. Provides that a candidate, candidate's committee, regular party committee, political action committee, or legislative caucus committee that sponsors a persuasion poll that violates these provisions is subject to a civil penalty of up to three times the amount expended in sponsoring the poll. Provides that a person who authorizes, conducts, or administers a persuasion poll that violates these provisions must pay a civil penalty of $50 for each offending call, up to a maximum civil penalty of $1,000 for each poll conducted, plus any investigative costs incurred.

Effective: July 1, 2000.





Skillman




    January 10, 2000, read first time and referred to Committee on Elections.







Introduced

Second Regular Session 111th General Assembly (2000)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
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SENATE BILL No. 290



    A BILL FOR AN ACT to amend the Indiana Code concerning elections.

Be it enacted by the General Assembly of the State of Indiana:

    SECTION 1. IC 3-9-4-16 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 16. (a) In addition to any other penalty imposed, a person who does any of the following is subject to a civil penalty under this section:
        (1) Fails to file with the election division a report in the manner required under IC 3-9-5.
        (2) Fails to file a statement of organization required under IC 3-9-1.
        (3) Is a committee or a member of a committee who disburses or expends money or other property for any political purpose before the money or other property has passed through the hands of the treasurer of the committee.
        (4) Makes a contribution other than to a committee subject to this article or to a person authorized by law or a committee to receive contributions on the committee's behalf.
        (5) Is a corporation or labor organization that exceeds any of the limitations on contributions prescribed by IC 3-9-2-4.


        (6) Makes a contribution in the name of another person.
        (7) Accepts a contribution made by one (1) person in the name of another person.
        (8) Is not the treasurer of a committee subject to this article, and pays any expenses of an election or a caucus except as authorized by this article.
        (9) Commingles the funds of a committee with the personal funds of an officer, a member, or an associate of the committee.
        (10) Wrongfully uses campaign contributions in violation of IC 3-9-3-4.
        (11) Violates IC 3-9-2-12.
        (12) Is a candidate, candidate's committee, regular party committee, political action committee, or legislative caucus committee that sponsors a persuasion poll that does not comply with IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6.
        (13) Authorizes, conducts, or administers a persuasion poll that does not comply with IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6.

    (b) This subsection applies to a person who is subject to a civil penalty under subsection (a)(1) or (a)(2) for filing a defective report or statement. If the commission determines that a person failed to file the amended report or statement of organization not later than noon five (5) days after being given notice under section 14 of this chapter, the commission may assess a civil penalty. The penalty is ten dollars ($10) for each day the report is late after the expiration of the five (5) day period, not to exceed one hundred dollars ($100) plus any investigative costs incurred and documented by the election division. The civil penalty limit under this subsection applies to each report separately.
    (c) This subsection applies to a person who is subject to a civil penalty under subsection (a)(1) or (a)(2) for a delinquent report or statement. If the commission determines that a person failed to file the report or statement of organization by the deadline prescribed under this article, the commission shall assess a civil penalty. The penalty is fifty dollars ($50) for each day the report or statement is late, with the afternoon of the final date for filing the report or statement being calculated as the first day. The civil penalty under this subsection may not exceed one thousand dollars ($1,000) plus any investigative costs incurred and documented by the election division. The civil penalty limit under this subsection applies to each report separately.
    (d) This subsection applies to a person who is subject to a civil penalty under subsection (a)(3), (a)(4), (a)(6), (a)(7), (a)(8), (a)(9), or (a)(10). If the commission determines that a person is subject to a civil

penalty under subsection (a), the commission may assess a civil penalty of not more than one thousand dollars ($1,000), plus any investigative costs incurred and documented by the election division.
    (e) This subsection applies to a person who is subject to a civil penalty under subsection (a)(5). If the commission determines that a person is subject to a civil penalty under subsection (a)(5), the commission may assess a civil penalty of not more than three (3) times the amount of the contribution in excess of the limit prescribed by IC 3-9-2-4 , plus any investigative costs incurred and documented by the election division.
    (f) This subsection applies to a person who is subject to a civil penalty under subsection (a)(11). If the commission determines that a candidate or the candidate's committee has violated IC 3-9-2-12 , the commission shall assess a civil penalty equal to the greater of the following, plus any investigative costs incurred and documented by the election division:
        (1) Two (2) times the amount of any contributions received.
        (2) One thousand dollars ($1,000).
    (g) This subsection applies to a candidate, candidate's committee, regular party committee, political action committee, or legislative caucus committee that is subject to a civil penalty under subsection (a)(12). If the commission determines that the candidate, candidate's committee, regular party committee, political action committee, or legislative caucus committee has sponsored a persuasion poll that included calls that did not comply with IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6 , the commission may assess a civil penalty of up to three (3) times the amount expended by the candidate, candidate's committee, regular party committee, political action committee, or legislative caucus committee in sponsoring the poll, plus any investigative costs incurred and documented by the election division. If the commission determines that a civil penalty is warranted, the commission shall consider the following factors in determining the amount of the penalty:
        (1) the number of calls made in violation of IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6 ; and
        (2) whether the calls in violation of IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6 were isolated events or part of a pattern of violations.
    (h) This subsection applies to a person who is subject to a civil penalty under subsection (a)(13). If the commission determines that a person has violated IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6 , the commission shall assess a civil penalty. The penalty is fifty dollars

($50) for each call that violates IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6. The civil penalty under this subsection may not exceed one thousand dollars ($1,000) for each poll conducted, plus any investigative costs incurred and documented by the election division.
     (i) All civil penalties collected under this section shall be deposited with the treasurer of state in the campaign finance enforcement account.
    (h) (j) Proceedings of the commission under this section are subject to IC 4-21.5.
    SECTION 2. IC 3-9-4-17 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 17. (a) In addition to any other penalty imposed, a person who does any of the following is subject to a civil penalty under this section:
        (1) Fails to file with a county election board a report in the manner required under IC 3-9-5.
        (2) Fails to file a statement of organization required under IC 3-9-1.
        (3) Is a committee or a member of a committee who disburses or expends money or other property for any political purpose before the money or other property has passed through the hands of the treasurer of the committee.
        (4) Makes a contribution other than to a committee subject to this article or to a person authorized by law or a committee to receive contributions in the committee's behalf.
        (5) Is a corporation or labor organization that exceeds any of the limitations on contributions prescribed by IC 3-9-2-4.
        (6) Makes a contribution in the name of another person.
        (7) Accepts a contribution made by one (1) person in the name of another person.
        (8) Is not the treasurer of a committee subject to this article, and pays any expenses of an election or a caucus except as authorized by this article.
        (9) Commingles the funds of a committee with the personal funds of an officer, a member, or an associate of the committee.
        (10) Wrongfully uses campaign contributions in violation of IC 3-9-3-4.
        (11) Is a candidate, candidate's committee, regular party committee, or political action committee that sponsors a persuasion poll that does not comply with IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6.
        (12) Authorizes, conducts, or administers a persuasion poll

that does not comply with IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6.
    (b) This subsection applies to a person who is subject to a civil penalty under subsection (a)(1) or (a)(2) for filing a defective report or statement. If the county election board determines that a person failed to file the report or a statement of organization not later than noon five (5) days after being given notice under section 14 of this chapter, the county election board may assess a civil penalty. The penalty is ten dollars ($10) for each day the report is late after the expiration of the five (5) day period, not to exceed one hundred dollars ($100) plus any investigative costs incurred and documented by the board. The civil penalty limit under this subsection applies to each report separately.
    (c) This subsection applies to a person who is subject to a civil penalty under subsection (a)(1) or (a)(2) for a delinquent report or statement. If the county election board determines that a person failed to file the report or statement of organization by the deadline prescribed under this article, the board shall assess a civil penalty. The penalty is fifty dollars ($50) for each day the report is late, with the afternoon of the final date for filing the report or statement being calculated as the first day. The civil penalty under this subsection may not exceed one thousand dollars ($1,000) plus any investigative costs incurred and documented by the board. The civil penalty limit under this subsection applies to each report separately.
    (d) This subsection applies to a person who is subject to a civil penalty under subsection (a)(3), (a)(4), (a)(6), (a)(7), (a)(8), (a)(9), or (a)(10). If the county election board determines that a person is subject to a civil penalty under subsection (a), the board may assess a civil penalty of not more than one thousand dollars ($1,000), plus any investigative costs incurred and documented by the board.
    (e) This subsection applies to a person who is subject to a civil penalty under subsection (a)(5). If the county election board determines that a person is subject to a civil penalty under subsection (a)(5), the board may assess a civil penalty of not more than three (3) times the amount of the contribution in excess of the limit prescribed by IC 3-9-2-4 , plus any investigative costs incurred and documented by the board.
    (f) This subsection applies to a candidate, candidate's committee, regular party committee, or political action committee that is subject to a civil penalty under subsection (a)(11). If the county election board determines by a unanimous vote that the candidate, candidate's committee, regular party committee, or political action committee has sponsored a persuasion poll that

included calls that did not comply with IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6 , the county election board may assess a civil penalty of up to three (3) times the amount expended by the candidate, candidate's committee, regular party committee, or political action committee in sponsoring the poll, plus any investigative costs incurred and documented by the county election board. If the county election board determines by a unanimous vote that a civil penalty is warranted, the county election board shall consider the following factors in determining the amount of the penalty:
        (1) the number of calls made in violation of IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6 ; and
        (2) whether the calls in violation of IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6 were isolated events or part of a pattern of violations.
    (g) This subsection applies to a person who is subject to a civil penalty under subsection (a)(12). If the county election board determines that a person has violated IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6 , the county election board shall assess a civil penalty. The penalty is fifty dollars ($50) for each call that violates IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6. The civil penalty under this subsection may not exceed one thousand dollars ($1,000) for each poll conducted, plus any investigative costs incurred and documented by the board.

     (h) All civil penalties collected under this section shall be deposited with the county treasurer to be deposited by the county treasurer in a separate account to be known as the campaign finance enforcement account. The funds in the account are available, with the approval of the county fiscal body, to augment and supplement the funds appropriated for the administration of this article.
    (g) (i) Money in the campaign finance enforcement account does not revert to the county general fund at the end of a county fiscal year.
    (h) (j) Proceedings of the county election board under this section are subject to IC 4-21.5.
    SECTION 3. IC 3-9-8 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2000]:
    Chapter 8. Persuasion Polls
    Sec. 1. As used in this chapter, "basic preference question" means a question that provides a respondent with a list of candidates' names and asks which candidate the respondent supports in a particular election or caucus.
    Sec. 2. As used in this chapter, "persuasion poll" means a

telephone survey or series of telephone surveys that are similar in nature and:
        (1) that include or total more than five hundred (500) calls;
        (2) that reference, other than in a basic preference question, a candidate or group of candidates in any election or caucus;
        (3) that is designed to:
            (A) provide information that is negative or derogatory about a candidate or group of candidates in any election or caucus; or
            (B) influence the respondent to vote for or against a candidate or group of candidates in any election or caucus;
        rather than to measure the public's opinion about the candidates or issues in any election or caucus; and
        (4) to which at least one (1) of the following applies:
            (A) A list or directory is used, exclusively or in part, to select respondents belonging to a particular subset or combination of subsets of the population based on demographic or political characteristics such as race, sex, age, ethnicity, party affiliation, or similar characteristics.
            (B) The poll takes less than three (3) minutes to complete, excluding time spent in identifying the person sponsoring and authorizing the poll.
            (C) The poll does not ask questions about the political or demographic characteristics of the respondents.

             (D) The person who authorizes, sponsors, conducts, or administers the poll does not collect or tabulate the results of the poll.
            (E) The poll is commenced not more than ten (10) days before an election.

    Sec. 3. (a) For purposes of this chapter, a candidate, candidate's committee, regular party committee, political action committee, or legislative caucus committee conducts business in Indiana if the candidate, candidate's committee, regular party committee, political action committee, or legislative caucus committee sponsors or authorizes a persuasion poll that includes telephone calls that are made from:
        (1) Indiana to other locations in Indiana;
        (2) another state or nation to locations in Indiana; or
        (3) locations both within and outside Indiana to locations in Indiana.
    (b) For purposes of this chapter, a person conducts business in Indiana if the person receives money or other remuneration to

conduct or administer a persuasion poll that includes telephone calls that are made from:
        (1) Indiana to other locations in Indiana;
        (2) another state or nation to locations in Indiana; or
        (3) locations both within and outside Indiana to locations in Indiana.
    (c) A nonresident of Indiana who conducts business under subsection (a) or (b) is considered to have appointed the election division as the nonresident's agent for service of process in any action or proceeding against the nonresident arising from the conduct of the persuasion poll.
    Sec. 4. (a) A person may not sponsor, authorize, conduct, or administer a persuasion poll unless, at the end of the call, the caller identifies the person sponsoring and authorizing the call by stating: "Paid for by (name of person sponsoring the call), on behalf of (name of person authorizing the call).".
    (b) If the person sponsoring or authorizing the call is not required to file a report under IC 3-9-5 , the caller shall also disclose a valid current address for the person identified.
    (c) If the person sponsoring or authorizing the call is a candidate or candidate's committee, the caller shall also disclose the candidate's name and the office sought by the candidate. However, if a candidate or candidate's committee neither sponsors nor authorizes the call, the caller shall state that the call is not authorized by any candidate or candidate's committee.
    (d) A person does not violate this section if the respondent voluntarily terminates the call or asks to be called back before the required disclosures are made.
    Sec. 5. A person may not state or imply false or fictitious names or addresses when making the disclosures required under section 4 of this chapter.
    Sec. 6. (a) A caller who makes the disclosures required under section 4 of this chapter shall do so in a clear and intelligible manner and shall repeat them upon the request of the respondent.
    (b) A person may make the required disclosures by means of a computerized or prerecorded disclaimer message. However, a computerized or prerecorded disclaimer message must offer respondents an option to repeat the message.
    Sec. 7. A person who sponsors, authorizes, conducts, or administers a persuasion poll may not knowingly or intentionally block or attempt to block the display of the person's:
        (1) telephone number; or


        (2) identity;
by a respondent's caller ID service (as defined by IC 8-1-2.9-1 ) during a call that is part of the persuasion poll.

    SECTION 4. IC 3-14-1-17 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 17. A person who sponsors, authorizes, conducts, or administers a persuasion poll that violates IC 3-9-8-4 , IC 3-9-8-5 , or IC 3-9-8-6 commits a Class B misdemeanor.
    SECTION 5. IC 3-14-1-18 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 18. A person who violates IC 3-9-8-7 by knowingly or intentionally blocking or attempting to block the person's telephone number or identity by a respondent's caller ID service (as defined in IC 8-1-2.9-1 ) commits a Class B misdemeanor. However, the offense is a Class A misdemeanor if the person has a previous unrelated conviction under IC 3-9-8-7.