What SB 33 Does and Why It is Needed  

Gordon Allen, Open Democracy Action, January 18, 2017

[email protected]

SB 33 is a technical correction in the definition “Political Advocacy Organization” in RSA 664:2 XXII. It closes the loophole inadvertently created by the 2014 definition in SB 120 of what constitutes a non-express political communication.  This has allowed several groups spending big money on independent campaigns to evade registering with the secretary of state as a “Political Advocacy Organization” as the law intended. These have been mostly wealthy national groups conducting expensive independent campaigns in NH primary and general elections. Because of this loophole, NH voters and candidates have been denied their right-to-know the significant money these groups have spent on our elections.

The Problem

• These independent groups (on both the right and left) got around registering and reporting by producing political communications that did not expressly say vote “for” or “against” a candidate – but instead made negative allegations against the candidates they wanted to defeat – most often in the form of a basic political attack ad using issue-advocacy type language.
• The 2014 definition of “Political Advocacy Organization” in RSA 664:2 XXII. intended to cover these types of non-express electioneering communications by requiring that groups report their expenditures on them if they were “functionally equivalent” to communications that expressly advocate voting “for” or “against” a candidate.
•  In practice, determining what was “functionally equivalent” didn’t work.  Specifically, in a 2014 complaint against an independent group that failed to register as a “Political Advocacy Organization” –even though it made large expenditures on a mailing aimed at defeating a group NH House candidates (but did not expressly say vote “against”) – the Attorney General ruled the group did not have to register as it was not 100% certain that it was “functionally equivalent” to political “express advocacy.”  This was even though it clearly identified the candidates it went after and was sent right before the Primary.
• As a result, our citizens were denied the right-to-know how much these independent groups spent to defeat or elect specific candidates. Further, it was clearly unfair that all other political committees and independent groups (and candidates) who were upfront and expressly advocated in their ads had to register and report their spending in detail – whereas these groups doing the same thing with their attack ads in the 2014 and 2016 elections reported nothing.

The SB 33 Solution

SB 33 closes this loophole by replacing the existing flawed definition of an electioneering “communication” in RSA 664:2 XXII. with one using three clear-cut and workable standards with a proven track record (supported by the courts and even the Citizen United Decision) in federal law and other states. SB 33 defines a “communication” as one that: (1) “refers to a clearly identified candidate;” (2) “regardless of whether the communication expressly advocates a vote for or against a candidate;” and (3) is “publicly distributed within 60 days before a primary or general election to an audience that includes members of the electorate for the office sought by the candidate.” This clearly separates in a realistic way a communication to a voter that is primarily electioneering from one that is issue advocacy.

Applying this SB 33 definition to the mailers used by these groups that did not register clearly identifies them as electioneering “communications” as they meet all three standards.  This means these groups would now have to register with the secretary of state as a “Political Advocacy Organization” and file detailed reports on their expenditures like political committees and candidates. This restores the public’s right-to-know and levels the playing field.