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§ 106.0703 Electioneering communications organizations; reporting requirements; certification and filing; penalties.

Overview of Statute

This statute governs electioneering communications organizations in Florida. All electioneering communications organizations have to file regular financial reports. The statute also outlines the requirements for the reports. If reports are filed late, the organizations must pay fines based on a date scheme laid out in the statute.

Statute

(1)

(a) Each electioneering communications organization shall file regular reports of all contributions received and all expenditures made by or on behalf of the organization. Except as provided in paragraphs (b) and (c), reports must be filed on the 10th day following the end of each calendar month from the time the organization is registered. However, if the 10th day following the end of a calendar month occurs on a Saturday, Sunday, or legal holiday, the report must be filed on the next following day that is not a Saturday, Sunday, or legal holiday. Monthly reports must include all contributions received and expenditures made during the calendar month that have not otherwise been reported pursuant to this section.

(b) For an electioneering communications organization required to file reports with the division, reports must be filed:

1. On the 60th day immediately preceding the primary election, and each week thereafter, with the last weekly report being filed on the 4th day immediately preceding the general election.
2. On the 10th day immediately preceding the general election, and every day thereafter excluding the 4th day immediately preceding the general election, with the last daily report being filed the day before the general election.
(c) For an electioneering communications organization required to file reports with a filing officer other than the division, reports must be filed on the 60th day immediately preceding the primary election, and biweekly on each Friday thereafter through and including the 4th day immediately preceding the general election, with additional reports due on the 25th and 11th days before the primary election and the general election.
(d) When a special election is called to fill a vacancy in office, all electioneering communications organizations making contributions or expenditures to influence the results of the special election shall file reports with the filing officer on the dates set by the Department of State pursuant to s. 100.111.
(e) In addition to the reports required by paragraph (a), an electioneering communications organization that is registered with the Department of State and that makes a contribution or expenditure to influence the results of a county or municipal election that is not being held at the same time as a state or federal election must file reports with the county or municipal filing officer on the same dates as county or municipal candidates or committees for that election. The electioneering communications organization must also include the expenditure in the next report filed with the Division of Elections pursuant to this section following the county or municipal election.
(f) The filing officer shall make available to each electioneering communications organization a schedule designating the beginning and end of reporting periods as well as the corresponding designated due dates.
(2)
(a) Except as provided in s. 106.0705, the reports required of an electioneering communications organization shall be filed with the filing officer not later than 5 p.m. of the day designated. However, any report postmarked by the United States Postal Service no later than midnight of the day designated is deemed to have been filed in a timely manner. Any report received by the filing officer within 5 days after the designated due date that was delivered by the United States Postal Service is deemed timely filed unless it has a postmark that indicates that the report was mailed after the designated due date. A certificate of mailing obtained from and dated by the United States Postal Service at the time of mailing, or a receipt from an established courier company, which bears a date on or before the date on which the report is due, suffices as proof of mailing in a timely manner. Reports other than daily reports must contain information on all previously unreported contributions received and expenditures made as of the preceding Friday, except that the report filed on the Friday immediately preceding the election must contain information on all previously unreported contributions received and expenditures made as of the day preceding the designated due date; daily reports must contain information on all previously unreported contributions received as of the preceding day. All such reports are open to public inspection.
(b)1. Any report that is deemed to be incomplete by the officer with whom the electioneering communications organization files shall be accepted on a conditional basis. The treasurer of the electioneering communications organization shall be notified, by certified mail or other common carrier that can establish proof of delivery for the notice, as to why the report is incomplete. Within 7 days after receipt of such notice, the treasurer must file an addendum to the report providing all information necessary to complete the report in compliance with this section. Failure to file a complete report after such notice constitutes a violation of this chapter.
2. Notice is deemed sufficient upon proof of delivery of written notice to the mailing or street address of the treasurer or registered agent of the electioneering communication organization on record with the filing officer.

(3)

(a) Except for daily reports, to which only the contribution provisions below apply, each report required by this section must contain:

1. The full name, address, and occupation, if any, of each person who has made one or more contributions to or for such electioneering communications organization within the reporting period, together with the amount and date of such contributions. For corporations, the report must provide as clear a description as practicable of the principal type of business conducted by the corporation. However, if the contribution is $100 or less, the occupation of the contributor or the principal type of business need not be listed.
2. The name and address of each political committee from which or to which the reporting electioneering communications organization made any transfer of funds, together with the amounts and dates of all transfers.
3. Each loan for electioneering communication purposes to or from any person or political committee within the reporting period, together with the full names, addresses, and occupations and principal places of business, if any, of the lender and endorsers, if any, and the date and amount of such loans.
4. A statement of each contribution, rebate, refund, or other receipt not otherwise listed under subparagraphs 1.-3.
5. The total sums of all loans, in-kind contributions, and other receipts by or for such electioneering communications organization during the reporting period. The reporting forms shall be designed to elicit separate totals for in-kind contributions, loans, and other receipts.
6. The full name and address of each person to whom expenditures have been made by or on behalf of the electioneering communications organization within the reporting period and the amount, date, and purpose of each expenditure.
7. The full name and address of each person to whom an expenditure for personal services, salary, or reimbursement for expenses has been made and that is not otherwise reported, including the amount, date, and purpose of the expenditure.
8. The total sum of expenditures made by the electioneering communications organization during the reporting period.
9. The amount and nature of debts and obligations owed by or to the electioneering communications organization that relate to the conduct of any electioneering communication.
10. Transaction information for each credit card purchase. Receipts for each credit card purchase shall be retained by the electioneering communications organization.
11. The amount and nature of any separate interest-bearing accounts or certificates of deposit and identification of the financial institution in which such accounts or certificates of deposit are located.
12. The primary purposes of an expenditure made indirectly through an electioneering communications organization for goods and services, such as communications media placement or procurement services and other expenditures that include multiple components as part of the expenditure. The primary purpose of an expenditure shall be that purpose, including integral and directly related components, that comprises 80 percent of such expenditure.
(b) The filing officer shall make available to any electioneering communications organization a reporting form which the electioneering communications organization may use to indicate contributions received by the electioneering communications organization but returned to the contributor before deposit.
(4) The treasurer of the electioneering communications organization shall certify as to the correctness of each report, and each person so certifying shall bear the responsibility for the accuracy and veracity of each report. Any treasurer who willfully certifies the correctness of any report while knowing that such report is incorrect, false, or incomplete commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(5) The electioneering communications organization depository shall provide statements reflecting deposits and expenditures from the account to the treasurer, who shall retain the records pursuant to s. 106.06. The records maintained by the depository with respect to the account shall be subject to inspection by an agent of the Division of Elections or the Florida Elections Commission at any time during normal banking hours, and such depository shall furnish certified copies of any such records to the Division of Elections or the Florida Elections Commission upon request.
(6) Notwithstanding any other provisions of this chapter, in any reporting period during which an electioneering communications organization has not received funds, made any contributions, or expended any reportable funds, the treasurer shall file a written report with the filing officer by the prescribed reporting date that no reportable contributions or expenditures were made during the reporting period.

(7)

(a) Any electioneering communications organization failing to file a report on the designated due date shall be subject to a fine as provided in paragraph (b) for each late day. The fine shall be assessed by the filing officer, and the moneys collected shall be deposited:

1. In the General Revenue Fund, in the case of an electioneering communications organization that registers with the Division of Elections; or
2. In the general revenue fund of the political subdivision, in the case of an electioneering communications organization that registers with an officer of a political subdivision.

No separate fine shall be assessed for failure to file a copy of any report required by this section.

(b) Upon determining that a report is late, the filing officer shall immediately notify the electioneering communications organization as to the failure to file a report by the designated due date and that a fine is being assessed for each late day. The fine shall be $50 per day for the first 3 days late and, thereafter, $500 per day for each late day, not to exceed 25 percent of the total receipts or expenditures, whichever is greater, for the period covered by the late report. However, for the reports immediately preceding each primary and general election, the fine shall be $500 per day for each late day, not to exceed 25 percent of the total receipts or expenditures, whichever is greater, for the period covered by the late report. Upon receipt of the report, the filing officer shall determine the amount of the fine which is due and shall notify the electioneering communications organization. The filing officer shall determine the amount of the fine due based upon the earliest of the following:

1. When the report is actually received by such officer.
2. When the report is postmarked.
3. When the certificate of mailing is dated.
4. When the receipt from an established courier company is dated.
5. When the electronic receipt issued pursuant to s. 106.0705 or other electronic filing system authorized in this section is dated.

Such fine shall be paid to the filing officer within 20 days after receipt of the notice of payment due, unless appeal is made to the Florida Elections Commission pursuant to paragraph (c). Notice is deemed sufficient upon proof of delivery of written notice to the mailing or street address on record with the filing officer. An officer or member of an electioneering communications organization shall not be personally liable for such fine.

(c) The treasurer of an electioneering communications organization may appeal or dispute the fine, based upon, but not limited to, unusual circumstances surrounding the failure to file on the designated due date, and may request and shall be entitled to a hearing before the Florida Elections Commission, which shall have the authority to waive the fine in whole or in part. The Florida Elections Commission must consider the mitigating and aggravating circumstances contained in s.106.265(2) when determining the amount of a fine, if any, to be waived. Any such request shall be made within 20 days after receipt of the notice of payment due. In such case, the treasurer of the electioneering communications organization shall, within the 20-day period, notify the filing officer in writing of his or her intention to bring the matter before the commission.
(d) The appropriate filing officer shall notify the Florida Elections Commission of the repeated late filing by an electioneering communications organization, the failure of an electioneering communications organization to file a report after notice, or the failure to pay the fine imposed. The commission shall investigate only those alleged late filing violations specifically identified by the filing officer and as set forth in the notification. Any other alleged violations must be stated separately and reported by the division to the commission under s. 106.25(2).
(8) Electioneering communications organizations shall not use credit cards.

History:

s. 7, ch. 2006-300; s. 23, ch. 2010-167; ss. 11, 30, ch. 2011-6; s. 60, ch. 2011-40; HJR 7105, 2011 Regular Session; s. 7, ch. 2012-5; s. 11, ch. 2013-37; s. 10, ch. 2014-17.

Definition [Expenditure]

(a) A purchase, payment, distribution, loan, advance, transfer of funds by a campaign treasurer or deputy campaign treasurer between a primary depository and a separate interest-bearing account or certificate of deposit, or gift of money or anything of value made for the purpose of influencing the results of an election or making an electioneering communication. However, “expenditure” does not include a purchase, payment, distribution, loan, advance, or gift of money or anything of value made for the purpose of influencing the results of an election when made by an organization, in existence before the time during which a candidate qualifies or an issue is placed on the ballot for that election, for the purpose of printing or distributing such organization’s newsletter, containing a statement by such organization in support of or opposition to a candidate or issue, which newsletter is distributed only to members of such organization.

(b) As used in chapter 106, an “expenditure” for an electioneering communication is made when the earliest of the following occurs:

1. A person enters into a contract for applicable goods or services;

2. A person makes payment, in whole or in part, for the production or public dissemination of applicable goods or services; or

3. The electioneering communication is publicly disseminated. Fla. Stat. § 106.011(10).

Definition [Contribution]

(a) A gift, subscription, conveyance, deposit, loan, payment, or distribution of money or anything of value, including contributions in kind having an attributable monetary value in any form, made for the purpose of influencing the results of an election or making an electioneering communication.

(b) A transfer of funds between political committees, between electioneering communications organizations, or between any combination of these groups.

(c) The payment, by a person other than a candidate or political committee, of compensation for the personal services of another person which are rendered to a candidate or political committee without charge to the candidate or committee for such services.

(d) The transfer of funds by a campaign treasurer or deputy campaign treasurer between a primary depository and a separate interest-bearing account or certificate of deposit, and the term includes interest earned on such account or certificate.

Notwithstanding the foregoing meanings of “contribution,” the term may not be construed to include services, including, but not limited to, legal and accounting services, provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate or political committee or editorial endorsements. Fla. Stat. § 106.011(5).

Definition [Filing Officer]

The person before whom a candidate qualifies or the agency or officer with whom a political committee or an electioneering communications organization registers. Fla. Stat. § 106.011(11).

Definition [General Election]

An election held on the first Tuesday after the first Monday in November in the even-numbered years, for the purpose of filling national, state, county, and district offices and for voting on constitutional amendments not otherwise provided for by law. Fla. Stat. § 97.021(16).

Definition [Primary Election]

An election held preceding the general election for the purpose of nominating a party nominee to be voted for in the general election to fill a national, state, county, or district office. Fla. Stat. § 97.021(29).

Definition [Special Election]

A special election called for the purpose of voting on a party nominee to fill a vacancy in the national, state, county, or district office. Fla. Stat. § 97.021(34).

Definition [Political Committee]

1. A combination of two or more individuals, or a person other than an individual, that, in an aggregate amount in excess of $500 during a single calendar year:

a. Accepts contributions for the purpose of making contributions to any candidate, political committee, affiliated party committee, or political party;

b. Accepts contributions for the purpose of expressly advocating the election or defeat of a candidate or the passage or defeat of an issue;

c. Makes expenditures that expressly advocate the election or defeat of a candidate or the passage or defeat of an issue; or

d. Makes contributions to a common fund, other than a joint checking account between spouses, from which contributions are made to any candidate, political committee, affiliated party committee, or political party;

2. The sponsor of a proposed constitutional amendment by initiative who intends to seek the signatures of registered electors.

(b) Notwithstanding paragraph (a), the following entities are not considered political committees for purposes of this chapter:

1. National political parties, the state and county executive committees of political parties, and affiliated party committees regulated by chapter 103.

2. Corporations regulated by chapter 607 or chapter 617 or other business entities formed for purposes other than to support or oppose issues or candidates, if their political activities are limited to contributions to candidates, political parties, affiliated party committees, or political committees or expenditures in support of or opposition to an issue from corporate or business funds and if no contributions are received by such corporations or business entities.

3. Electioneering communications organizations as defined in subsection (9). Fla. Stat. § 106.11(16).

 

Definition [Communications Media]

Broadcasting stations, newspapers, magazines, outdoor advertising facilities, printers, direct mail, advertising agencies, the Internet, and telephone companies; but with respect to telephones, an expenditure is deemed to be an expenditure for the use of communications media only if made for the costs of telephones, paid telephonists, or automatic telephone equipment to be used by a candidate or a political committee to communicate with potential voters but excluding the costs of telephones incurred by a volunteer for use of telephones by such volunteer; however, with respect to the Internet, an expenditure is deemed an expenditure for use of communications media only if made for the cost of creating or disseminating a message on a computer information system accessible by more than one person but excluding internal communications of a campaign or of any group.

Definition [Electioneering Communication]

Communication that is publicly distributed by a television station, radio station, cable television system, satellite system, newspaper, magazine, direct mail, or telephone and that:

1. Refers to or depicts a clearly identified candidate for office without expressly advocating the election or defeat of a candidate but that is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate;

2. Is made within 30 days before a primary or special primary election or 60 days before any other election for the office sought by the candidate; and

3. Is targeted to the relevant electorate in the geographic area the candidate would represent if elected.

The term “electioneering communication” does not include:

1. A communication disseminated through a means of communication other than a television station, radio station, cable television system, satellite system, newspaper, magazine, direct mail, telephone, or statement or depiction by an organization, in existence before the time during which a candidate named or depicted qualifies for that election, made in that organization’s newsletter, which newsletter is distributed only to members of that organization.

2. A communication in a news story, commentary, or editorial distributed through the facilities of a radio station, television station, cable television system, or satellite system, unless the facilities are owned or controlled by a political party, political committee, or candidate. A news story distributed through the facilities owned or controlled by a political party, political committee, or candidate may nevertheless be exempt if it represents a bona fide news account communicated through a licensed broadcasting facility and the communication is part of a general pattern of campaign-related news accounts that give reasonably equal coverage to all opposing candidates in the area.

3. A communication that constitutes a public debate or forum that includes at least two opposing candidates for an office or one advocate and one opponent of an issue, or that solely promotes such a debate or forum and is made by or on behalf of the person sponsoring the debate or forum, provided that:

a. The staging organization is either:

(I) A charitable organization that does not make other electioneering communications and does not otherwise support or oppose any political candidate or political party; or

(II) A newspaper, radio station, television station, or other recognized news medium; and

b. The staging organization does not structure the debate to promote or advance one candidate or issue position over another.

(c) For purposes of chapter 106, an expenditure made for, or in furtherance of, an electioneering communication is not considered a contribution to or on behalf of any candidate.

(d) For purposes of this chapter, an electioneering communication does not constitute an independent expenditure and is not subject to the limitations applicable to independent expenditures.

Definition [Electioneering Communications Organization]

Any group, other than a political party, affiliated party committee, or political committee, whose election-related activities are limited to making expenditures for electioneering communications or accepting contributions for the purpose of making electioneering communications and whose activities would not otherwise require the group to register as a political party or political committee under this chapter.

Definition [Issue]

A proposition that is required by the State Constitution, by law or resolution of the Legislature, or by the charter, ordinance, or resolution of a political subdivision of this state to be submitted to the electors for their approval or rejection at an election, or a proposition for which a petition is circulated in order to have such proposition placed on the ballot at an election. Fla. Stat. § 106.011(13).

Definition [Person]

An individual or a corporation, association, firm, partnership, joint venture, joint stock company, club, organization, estate, trust, business trust, syndicate, or other combination of individuals having collective capacity. The term includes a political party, affiliated party committee, or political committee. Fla. Stat. § 106.011(14).

Definition [Election]

Any primary election, special primary election, special election, general election, or presidential preference primary election. Fla. Stat. § 97.021(12).

Definition [Purchase]

As used in ss. 101.292-101.295, “purchase” means a contract for the purchase, lease, rental, or other acquisition of voting equipment. Fla. Stat. § 101.292(3).

Definition [Candidate]

Any person to whom any one or more of the following applies:

(a) Any person who seeks to qualify for nomination or election by means of the petitioning process.
(b) Any person who seeks to qualify for election as a write-in candidate.
(c) Any person who receives contributions or makes expenditures, or gives his or her consent for any other person to receive contributions or make expenditures, with a view to bringing about his or her nomination or election to, or retention in, public office.
(d) Any person who appoints a treasurer and designates a primary depository.
(e) Any person who files qualification papers and subscribes to a candidate’s oath as required by law.
This definition does not include any candidate for a political party executive committee. Fla. Stat. § 97.021(6).

Cases

Florida Cases

Out-of-State Cases

Federal Cases

Case Name: National Organization for Marriage, Inc. v. Roberts

Citation: 753 F.Supp.2d 1217

Federal District Court: Northern District of Florida

Year: 2010

Case URL: https://www.ravellaw.com/opinions/1e1c9d01edd7bb618eff2a4b2eac6410

Case Summary: National Organization for Marriage, Inc. v. Roberts held that Florida's "appeal to vote" statutory test was not void for vagueness even if it might be difficult in some circumstances to determine whether an ad was only susceptible to determination that it was an appeal to vote for or against a certain candidate.

Regulations & Guidance

Additional Resources

Further Reading

  • Lobbying, PACs, and Campaign Finance s 11:71, Overview

  • Lobbying, PACs, and Campaign Finance s 11:88, Reporting contributions or expenditures-PACs, corporations, lobbyists’ principals, etc.