Bill Text: IN HB1554 | 2011 | Regular Session | Introduced
Bill Title: Persuasion polls; false political communications.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2011-01-20 - First reading: referred to Committee on Elections and Apportionment [HB1554 Detail]
Download: Indiana-2011-HB1554-Introduced.html
Citations Affected: IC 3-9; 6IC 3-14-1.
Synopsis: Persuasion polls; false political communications. Defines
a "persuasion poll" as a telephone survey that: (1) includes more than
100 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 person called to vote for or against a candidate. Prohibits
a person from sponsoring, authorizing, conducting, or administering a
persuasion poll unless the caller provides certain information at the
beginning and the end of 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. Provides that a persuasion poll telephone call may not be
made on the day of an election or within five days immediately
preceding an election. 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 and who violates these provisions must
pay a civil penalty of $50 for each offending call, up to a maximum
civil penalty of $10,000 for each poll conducted, plus any investigative
costs incurred. Makes it a Class A misdemeanor for a person to
intentionally participate in the preparation, dissemination, or broadcast
of paid political advertising or campaign material, or in the drafting of
a letter to the editor, that: (1) concerns the personal or political
character or act of a candidate; and (2) is designed to or tends to elect,
Effective: July 1, 2011.
January 20, 2011, read first time and referred to Committee on Elections and
Apportionment.
Digest Continued
injure, promote,
or defeat the candidate; if the advertising or campaign
material or the letter contains information or a statement that was false
and the person knew of the falsity or acted with reckless disregard as
to truth or falsity. Exempts a person who merely disseminates or
broadcasts the material or letter in the normal course of business.
Provides that a candidate for nomination or election to public office (if
successful) forfeits the nomination or public office if the candidate
commits a violation, unless the candidate's violation was trivial or
occurred despite the candidate's good faith.
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A BILL FOR AN ACT to amend the Indiana Code concerning
elections.
(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) Fails to designate a contribution as required by IC 3-9-2-5(c).
(13) Violates IC 3-9-3-5.
(14) Serves as a treasurer of a committee in violation of any of the
following:
(A) IC 3-9-1-13(1).
(B) IC 3-9-1-13(2).
(C) IC 3-9-1-18.
(15) Fails to comply with section 4(d) of this chapter.
(16) Is a candidate, candidate's committee, regular party
committee, political action committee, or legislative caucus
committee that sponsors a persuasion poll (as defined in
IC 3-9-8-2) that does not comply with IC 3-9-8-4, IC 3-9-8-5,
IC 3-9-8-6, or IC 3-9-8-7.
(17) Authorizes, conducts, or administers a persuasion poll
that does not comply with IC 3-9-8-4, IC 3-9-8-5, IC 3-9-8-6,
or IC 3-9-8-7.
(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 person who is subject to a civil
penalty under subsection (a)(12). If the commission determines that a
corporation or a labor organization has failed to designate a
contribution in violation of IC 3-9-2-5(c), 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 the contributions undesignated.
(2) One thousand dollars ($1,000).
(h) This subsection applies to a person who is subject to a civil
penalty under subsection (a)(13). If the commission determines, by
unanimous vote of the entire membership of the commission, that a
person has violated IC 3-9-3-5, the commission may assess a civil
penalty of not more than five hundred dollars ($500), plus any
investigative costs incurred and documented by the election division.
(i) This subsection applies to a person who is subject to a civil
penalty under subsection (a)(14). If the commission determines, by
unanimous vote of the entire membership of the commission, that a
person has served as the treasurer of a committee in violation of any of
the statutes listed in subsection (a)(14), the commission may assess a
civil penalty of not more than five hundred dollars ($500), plus any
investigative costs incurred and documented by the election division.
(j) This subsection applies to a person who is subject to a civil
penalty under subsection (a)(15). The commission may assess a civil
penalty equal to the costs incurred by the election division for the
manual entry of the data contained in the report or statement, plus any
investigative costs incurred and documented by the election division.
(k) 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)(16). 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, IC 3-9-8-6, or IC 3-9-8-7, 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, IC 3-9-8-6, or IC 3-9-8-7; and
(2) whether the calls in violation of IC 3-9-8-4, IC 3-9-8-5,
IC 3-9-8-6, or IC 3-9-8-7 were isolated events or part of a
pattern of violations.
(l) This subsection applies to a person who is subject to a civil
penalty under subsection (a)(17). If the commission determines that
a person has violated IC 3-9-8-4, IC 3-9-8-5, IC 3-9-8-6, or
IC 3-9-8-7, 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, IC 3-9-8-6, or IC 3-9-8-7. The civil penalty under this
subsection may not exceed ten thousand dollars ($10,000) for each
poll conducted, plus any investigative costs incurred and
documented by the election division.
(k) (m) All civil penalties collected under this section shall be
deposited with the treasurer of state in the campaign finance
enforcement account.
(l) (n) Proceedings of the commission under this section are subject
to IC 4-21.5.
(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) Fails to designate a contribution as required by IC 3-9-2-5(c).
(12) Violates IC 3-9-3-5.
(13) Serves as a treasurer of a committee in violation of any of the following:
(A) IC 3-9-1-13(1).
(B) IC 3-9-1-13(2).
(C) IC 3-9-1-18.
(14) Is a candidate, candidate's committee, regular party
committee, or political action committee that sponsors a
persuasion poll (as defined in IC 3-9-8-2) that does not comply
with IC 3-9-8-4, IC 3-9-8-5, IC 3-9-8-6, or IC 3-9-8-7.
(15) Authorizes, conducts, or administers a persuasion poll
that does not comply with IC 3-9-8-4, IC 3-9-8-5, IC 3-9-8-6,
or IC 3-9-8-7.
(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 person who is subject to a civil
penalty under subsection (a)(11). If the county election board
determines that a corporation or a labor organization has failed to
designate a contribution in violation of IC 3-9-2-5(c), the board shall
assess a civil penalty equal to the greater of the following, plus any
investigative costs incurred and documented by the board:
(1) Two (2) times the amount of the contributions undesignated.
(2) One thousand dollars ($1,000).
(g) This subsection applies to a person who is subject to a civil
penalty under subsection (a)(12). If the county election board
determines, by unanimous vote of the entire membership of the board,
that a person has violated IC 3-9-3-5, the board may assess a civil
penalty of not more than five hundred dollars ($500), plus any
investigative costs incurred and documented by the board.
(h) This subsection applies to a person who is subject to a civil
penalty under subsection (a)(13). If the county election board
determines, by unanimous vote of the entire membership of the board,
that a person has served as the treasurer of a committee in violation of
any of the statutes listed in subsection (a)(13), the board may assess a
civil penalty of not more than five hundred dollars ($500), plus any
investigative costs incurred and documented by the board.
(i) 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)(14). 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,
IC 3-9-8-6, or IC 3-9-8-7, 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, IC 3-9-8-6, or IC 3-9-8-7; and
(2) whether the calls in violation of IC 3-9-8-4, IC 3-9-8-5,
IC 3-9-8-6, or IC 3-9-8-7 were isolated events or part of a
pattern of violations.
(j) This subsection applies to a person who is subject to a civil
penalty under subsection (a)(15). If the county election board
determines that a person has violated IC 3-9-8-4, IC 3-9-8-5,
IC 3-9-8-6, IC 3-9-8-7, 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, IC 3-9-8-6, or IC 3-9-8-7. The civil penalty
under this subsection may not exceed ten thousand dollars
($10,000) for each poll conducted, plus any investigative costs
incurred and documented by the county election board.
(i) (k) 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.
(j) (l) Money in the campaign finance enforcement account does not
revert to the county general fund at the end of a county fiscal year.
(k) (m) Proceedings of the county election board under this section
are subject to IC 4-21.5.
Chapter 8. Persuasion Polls
Sec. 1. As used in this chapter, "basic preference question" means a question that provides a person called with a list of candidates' names and asks which candidate the person called 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 is similar in nature and that satisfies the following:
(1) The survey or series of surveys includes or totals more than one hundred (100) calls.
(2) The survey or series of surveys references, other than in a basic preference question, a candidate or group of candidates in any election or caucus.
(3) The survey or series of surveys 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 person called 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.
(4) At least one (1) of the following applies:
(A) A list or directory is used, exclusively or in part, to select persons called 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 persons called.
(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 beginning and end of the call, the caller provides the following information:
(1) The name of the caller.
(2) The identity of 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).".
(3) The telephone number and address of the person sponsoring the call.
(4) Any other information required by IC 3-9-3.5-5.
(b) 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.
(c) 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 discloses the information required under section 4 of this chapter shall do so in a clear and intelligible manner and shall repeat the information 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 persuasion poll call may not be made on the day of an election or within five (5) days immediately preceding an election.
Sec. 8. 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 in IC 8-1-2.9-1) during a call that is part of the persuasion poll.
misdemeanor.
(1) concerns the personal or political character or acts of a candidate for nomination or election to a public office
(2) is designed or tends to elect, injure, promote, or defeat the candidate; or
(3) contains information or a statement that is false;
commits a Class A misdemeanor if the person knew that the material or letter contained information or a statement that was false or if the person took the action described in this subsection with reckless disregard as to whether the material or letter contained information or a statement that was false.
(b) Subsection (a) does not apply to a person or organization whose sole act is, in the normal course of business, the printing, manufacturing, or dissemination of the material or letter containing the false information or statement.
(c) Except as provided in subsection (e), if:
(1) a candidate for nomination or election to a public office is convicted of a violation of subsection (a); or
(2) another person is found to have violated subsection (a) with the knowledge, consent, or connivance of a candidate for nomination or election to a public office;
the court shall enter an order declaring that the candidate (if nominated or elected) has forfeited the nomination or office and that the nomination or office is vacant.
(d) An order entered under subsection (c) shall be filed with the person or entity that has the power to fill the vacancy or to call a caucus for the purpose of filling the vacancy. The vacancy shall be filled under IC 3-13. However:
(1) the candidate whose nomination or election has been set aside for a violation of subsection (a); or
(2) another person convicted of a violation of subsection (a);
may not be selected or elected to fill the vacancy, regardless of any law to the contrary.
(e) If, during a trial for a violation of subsection (a), the court finds that:
(1) although committed by the candidate or with the candidate's knowledge, consent, or connivance, the offense:
(A) was trivial; or
(B) occurred because of accidental miscalculation or another reasonable cause and not because of lack of good faith; and
(2) it would be unjust for the candidate to forfeit the candidate's nomination or election under subsection (c);
the candidate does not forfeit the nomination or election.
(f) The court findings described in subsection (e) are not a defense in a criminal trial for a violation of subsection (a).
