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Text: S05542                            Text: S05544
Text: S05500 - S05599                   Text: S Index
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Senate Amendment 5543

Amendment Text

PAG LIN
  1  1    Amend the amendment, S-5489, to House File 2449, as
  1  2 amended, passed, and reprinted by the House, as
  1  3 follows:
  1  4    #1.  Page 7, by inserting after line 31 the
  1  5 following:
  1  6    "Sec. 100.  Sections 200 through 600 of this Act
  1  7 are created as a new division of chapter 56.
  1  8    Sec. 200.  NEW SECTION.  56.50  DEFINITIONS.
  1  9    For purposes of applying provisions in this
  1 10 division, unless the context otherwise requires:
  1 11    1.  "Board" means the truth in campaign practices
  1 12 board.
  1 13    2.  "Candidate" means a person who has taken
  1 14 affirmative action to seek nomination or election to a
  1 15 state legislative office or to the office of governor,
  1 16 lieutenant governor, secretary of state, auditor of
  1 17 state, treasurer of state, attorney general, or
  1 18 secretary of agriculture.
  1 19    3.  "Candidate's committee" means a candidate's
  1 20 committee as defined in section 56.2.
  1 21    4.  "Negative statement" means a statement which
  1 22 attacks the record, reputation, or integrity of a
  1 23 candidate or which attacks the reputation or integrity
  1 24 of a member of a candidate's immediate family.  For
  1 25 purposes of this chapter, a candidate's spouse,
  1 26 children, parents, and siblings are members of a
  1 27 candidate's immediate family.
  1 28    5.  "Political organization" means an organization
  1 29 which is not a political party but which meets the
  1 30 criteria established under section 44.1 for nomination
  1 31 of candidates.
  1 32    6.  "Political party" means a political party under
  1 33 section 43.2.
  1 34    7.  "Statement" means a public written, electronic,
  1 35 or oral communication which is made or transmitted by
  1 36 any means.  For purposes of this section, a
  1 37 communication is public if it is made or transmitted
  1 38 in a manner that can be reasonably expected to result
  1 39 in the statement being heard, read, or viewed by
  1 40 members of the general public.
  1 41    Sec. 300.  NEW SECTION.  56.51  STATEMENTS BY OR
  1 42 ABOUT CANDIDATES.
  1 43    1.  A candidate shall not make or cause to be made
  1 44 untruthful or deliberately misleading statements
  1 45 regarding a candidate.  For purposes of this section,
  1 46 a statement shall be deemed to have been caused by a
  1 47 candidate if it is made by a candidate's designated
  1 48 spokesperson, if it is contained in materials produced
  1 49 or paid for by the candidate's committee, or if it is
  1 50 contained in materials imputed to a candidate under
  2  1 section 56.13.
  2  2    2.  A person who is not a candidate shall not
  2  3 knowingly make untruthful or deliberately misleading
  2  4 statements about a candidate.
  2  5    3.  If a candidate or candidate's committee pays
  2  6 for or sponsors an oral negative statement about a
  2  7 candidate, the statement shall be stated by the
  2  8 candidate.  For purposes of this section, a statement
  2  9 which is imputed to a candidate under section 56.13 is
  2 10 not sponsored by a candidate or candidate's committee.
  2 11    Sec. 400.  NEW SECTION.  56.52  TRUTH IN CAMPAIGN
  2 12 PRACTICES BOARD.
  2 13    1.  A three-member truth in campaign practices
  2 14 board is established as an independent agency to
  2 15 investigate, review, and determine the truthfulness or
  2 16 deliberately misleading nature of statements made by
  2 17 candidates, and other persons in support or opposition
  2 18 of a candidate as well as to investigate negative
  2 19 statements made about candidates.  Members of the
  2 20 board shall be appointed by the chief justice of the
  2 21 supreme court.  Two members of the board shall be
  2 22 affiliated with one of the two political parties whose
  2 23 candidates for president of the United States or for
  2 24 governor, as the case may be, received the largest and
  2 25 next largest number of votes at the last general
  2 26 election but neither shall be affiliated with the same
  2 27 political party.  The other member shall not be
  2 28 affiliated with a political party, but may be
  2 29 affiliated with a political organization.
  2 30    2.  Members shall serve staggered four-year terms,
  2 31 which shall begin at 12:01 a.m. on May 1 in the year
  2 32 of appointment and end at 12:00 midnight on April 30
  2 33 in the year of expiration.  Any vacancy on the board
  2 34 shall be filled by appointment for the unexpired
  2 35 portion of the term, within ninety days of the vacancy
  2 36 and in accordance with the procedures for regular
  2 37 appointments.  A member of the board may be
  2 38 reappointed to serve additional terms on the board.
  2 39 Members may be removed in the same manner as provided
  2 40 in section 69.15 except that once a vacancy or
  2 41 resignation occurs, the governor shall notify the
  2 42 chief justice of the supreme court, who shall make
  2 43 another appointment.
  2 44    3.  The board shall annually elect one member to
  2 45 serve as the chairperson of the board and one member
  2 46 to serve as vice chairperson.  The vice chairperson
  2 47 shall act as the chairperson in the absence or
  2 48 disability of the chairperson, or in the event of a
  2 49 vacancy in that office.
  2 50    4.  Members of the board shall receive a per diem
  3  1 as specified in section 7E.6 while conducting business
  3  2 of the board, and payment of actual and necessary
  3  3 expenses incurred in the performance of their duties.
  3  4 Members of the board shall file statements of
  3  5 financial interest under section 68B.35.
  3  6    5.  The board shall employ a full-time executive
  3  7 director who shall be the board's chief administrative
  3  8 officer.  The board shall employ or contract for the
  3  9 employment of legal counsel notwithstanding section
  3 10 13.7, and may employ any other personnel as may be
  3 11 necessary to carry out the duties of the board.  The
  3 12 board's legal counsel shall be the chief legal officer
  3 13 of the board, and shall advise the board on all legal
  3 14 matters relating to the administration of this
  3 15 chapter.  The state may be represented by the board's
  3 16 legal counsel in any civil action regarding the
  3 17 enforcement of this chapter or, at the board's
  3 18 request, the state may be represented by the office of
  3 19 the attorney general.  Notwithstanding section 19A.3,
  3 20 all of the board's employees, except for the executive
  3 21 director and legal counsel, shall be employed subject
  3 22 to the merit system provisions of chapter 19A.
  3 23    Sec. 500.  NEW SECTION.  56.53  DUTIES OF THE
  3 24 BOARD.
  3 25    The duties of the board shall include, but are not
  3 26 limited to, all of the following:
  3 27    1.  Adopt rules pursuant to chapter 17A and conduct
  3 28 investigations and hearings pursuant to section 56.54
  3 29 and chapter 17A, as necessary to carry out the
  3 30 purposes of this chapter.
  3 31    2.  Adopt rules pursuant to chapter 17A
  3 32 establishing standards for truthfulness and avoidance
  3 33 of making deliberately misleading statements in
  3 34 campaign advertising by candidates under this chapter
  3 35 and requiring candidates to personally utter negative
  3 36 statements about candidates if the statement is paid
  3 37 for by the candidate or candidate's committee.
  3 38    3.  Develop, prescribe, and furnish any forms
  3 39 necessary for the implementation of the procedures
  3 40 contained in this chapter for the filing and hearing
  3 41 of complaints or the issuance of advisory opinions.
  3 42    4.  Establish and impose penalties and any other
  3 43 recommendations for punishment of persons who are
  3 44 subject to penalties of or punishment by the board for
  3 45 failure to comply with the requirements of this
  3 46 chapter.
  3 47    5.  Determine, in case of dispute, at what time a
  3 48 person has become a candidate.
  3 49    6.  Preserve copies of complaints, requests, and
  3 50 other information filed with the board for a period of
  4  1 at least five years from the date of receipt.
  4  2    7.  Establish a procedure for requesting and
  4  3 issuing formal and informal board opinions to
  4  4 candidates and representatives of political parties
  4  5 and political organizations.  Following advice
  4  6 contained in a formal board opinion shall constitute a
  4  7 defense to a complaint based upon the same facts and
  4  8 circumstances which is filed with the board and which
  4  9 alleges a violation of this chapter or rules of the
  4 10 board.
  4 11    8.  Establish a procedure for informing candidates
  4 12 and other persons of the requirements of this chapter
  4 13 and rules adopted by the board.
  4 14    9.  Establish fees, where necessary, to cover the
  4 15 costs associated with preparing, printing, and
  4 16 distributing materials to persons subject to the
  4 17 authority of the board.
  4 18    Sec. 600.  NEW SECTION.  56.54  COMPLAINTS –
  4 19 INVESTIGATIONS – HEARINGS.
  4 20    1.  A candidate, a representative of a candidate's
  4 21 committee, or a representative of a political party or
  4 22 political organization may file a complaint with the
  4 23 board regarding the truthfulness or deliberately
  4 24 misleading nature of any statement made or caused to
  4 25 be made by a candidate or alleging that a candidate or
  4 26 candidate's committee has paid for an oral negative
  4 27 statement which was made by someone other than the
  4 28 candidate.  For purposes of this section, a statement
  4 29 is caused to be made by a candidate if it is made by a
  4 30 candidate's designated spokesperson, is contained in
  4 31 materials produced or paid for by the candidate's
  4 32 committee, as defined under chapter 56, or if it is
  4 33 action or is a part of action which has been imputed
  4 34 to the candidate under section 56.13.
  4 35    2.  A complaint shall include all of the following:
  4 36    a.  The name and address of the complainant.
  4 37    b.  If the allegation is that an untruthful or
  4 38 deliberately misleading statement was made, a
  4 39 recitation of the statement alleged to be untruthful
  4 40 or deliberately misleading.
  4 41    c.  If the allegation is that a negative statement
  4 42 was paid for or sponsored by a candidate or
  4 43 candidate's committee and was made by a person other
  4 44 than the candidate, a recitation of the negative
  4 45 statement.
  4 46    d.  To the extent known, the time and place or
  4 47 manner in which the statement was made.
  4 48    e.  If the statement complained of was made in
  4 49 writing, a copy of the statement.
  4 50    f.  If the allegation is that an untruthful or
  5  1 deliberately misleading statement was made, any
  5  2 circumstances, other than the express language of the
  5  3 statement, which cause the statement to be untruthful
  5  4 or deliberately misleading.
  5  5    g.  The name and address, if known, of the
  5  6 candidate or other person who made the statement.
  5  7    h.  If the allegation is that an untruthful or
  5  8 deliberately misleading statement was made, a
  5  9 statement of why or how the statement complained of is
  5 10 untruthful or deliberately misleading.
  5 11    i.  A certification by the complainant under
  5 12 penalty of perjury that the facts stated to be true
  5 13 are true to the best of the complainant's knowledge.
  5 14    j.  Any other relevant information or sources of
  5 15 information.
  5 16    3.  The board staff and legal counsel shall review
  5 17 the complaint to determine if the complaint is
  5 18 sufficient as to form and legal substance.  Deficiency
  5 19 as to form shall not preclude consideration of a
  5 20 complaint.  If the complaint is legally deficient, the
  5 21 complaint shall be returned to the complainant with a
  5 22 statement of the deficiency and shall not be
  5 23 considered by the board until the deficiency is cured.
  5 24 A  legally sufficient complaint must meet all of the
  5 25 following requirements:
  5 26    a.  Facts must be alleged that would establish
  5 27 either that a candidate made or caused to be made an
  5 28 untruthful or deliberately misleading statement about
  5 29 another opposing candidate or that a candidate caused
  5 30 an oral negative statement to be made by someone other
  5 31 than the candidate.
  5 32    b.  The person making the complaint must be a
  5 33 candidate or a representative of a political party or
  5 34 political organization.
  5 35    c.  If the allegation is that an untruthful or
  5 36 deliberately misleading statement was made, the
  5 37 complaint must indicate why or demonstrate how the
  5 38 statement is untruthful or deliberately misleading.
  5 39    d.  The complaint must be filed within sixty days
  5 40 from the date on which the statement that is
  5 41 complained of was made.
  5 42    4.  Upon receiving a legally sufficient complaint,
  5 43 the board shall investigate or cause the investigation
  5 44 of the facts alleged in the complaint.  Once the
  5 45 investigation is completed, the board shall meet and
  5 46 make a determination as to whether the statement
  5 47 violates the requirements of this chapter or rules
  5 48 adopted by the board.  The meeting shall be conducted
  5 49 in the manner provided for contested cases under
  5 50 chapter 17A.  However, a preponderance of evidence
  6  1 shall be required to support a finding that a
  6  2 statement is untruthful or deliberately misleading.
  6  3 In addition to holding meetings at which two or more
  6  4 members are physically present, meetings may be held
  6  5 electronically as provided under section 21.8.
  6  6 Notwithstanding section 21.4, subsection 2, public
  6  7 notice of the meetings of the board shall be made at a
  6  8 reasonable time before the meeting, but no later than
  6  9 eight hours before the time set for the meeting to
  6 10 begin.
  6 11    5.  The board shall render its decision within
  6 12 forty-eight hours of receiving a legally valid
  6 13 complaint.  If the forty-eight-hour period concludes
  6 14 on a weekend or holiday, the decision shall be made by
  6 15 the close of business hours on the next succeeding
  6 16 business day.  If the board finds that the statement
  6 17 complained of was untruthful or deliberately
  6 18 misleading or that an oral negative statement was made
  6 19 by someone other than a candidate and was paid for by
  6 20 the candidate or candidate's committee, the board's
  6 21 decision shall include an order for any remedy, under
  6 22 section 56A.6, that the board deems appropriate.
  6 23    6.  At any stage during the investigation or after
  6 24 the filing of a complaint, the board may approve a
  6 25 settlement regarding an allegedly untruthful or
  6 26 deliberately misleading statement or negative
  6 27 statement made by someone other than a candidate.
  6 28 Terms of a settlement shall be reduced to writing and
  6 29 be available for public inspection.  In addition, the
  6 30 board may authorize board staff to seek information in
  6 31 voluntary compliance in routine matters brought to the
  6 32 attention of the board or its staff.
  6 33    7.  A complaint shall be a public record.  The
  6 34 entire record of the board's action, including any
  6 35 investigation, shall also be a public record.
  6 36    Sec. 700.  NEW SECTION.  56.55  REMEDIES.
  6 37    1.  If the board finds that a candidate or other
  6 38 person has made or caused to be made an untruthful or
  6 39 deliberately misleading statement, the board shall
  6 40 require a retraction of the statement by any person
  6 41 found to be responsible for making the statement or
  6 42 causing the statement to be made, within a period of
  6 43 time to be specified by the board, in the same manner
  6 44 and at the same cost as the original statement.  Any
  6 45 retraction shall be approved by the board before it is
  6 46 made public.  The board shall inform the complainant
  6 47 of any proposed retraction and permit the complainant
  6 48 to submit comments prior to the board's decision on
  6 49 approval or disapproval of the proposed language.
  6 50    2.  For any violations of this chapter or rules
  7  1 adopted by the board, the board may impose one or more
  7  2 of the following penalties:
  7  3    a.  Issue an order requiring the person to cease
  7  4 and desist from the violation.
  7  5    b.  Issue an order requiring the violator to take
  7  6 any remedial action deemed appropriate by the board.
  7  7    c.  Publicly reprimand the violator for violations
  7  8 of this chapter or rules adopted by the board.
  7  9    d.  Issue an order requiring the violator to pay a
  7 10 civil penalty of not more than fifty thousand dollars
  7 11 for each violation of this chapter or rules adopted by
  7 12 the board.
  7 13    3.  If a person fails to comply with an order of
  7 14 the board under this section, the board may petition
  7 15 the district court for an order for enforcement of the
  7 16 order of the board.  Judicial enforcement of orders of
  7 17 the board shall be sought in accordance with chapter
  7 18 17A.
  7 19    4.  At any stage in a proceeding, the board may
  7 20 refer the complaint and supporting information to the
  7 21 attorney general or appropriate county attorney with a
  7 22 recommendation for prosecution or enforcement of
  7 23 criminal penalties."
  7 24    #2.  By renumbering as necessary.  
  7 25 
  7 26 
  7 27                              
  7 28 MARY LUNDBY
  7 29 ANDY McKEAN
  7 30 HF 2449.508 76
  7 31 jls/jw
     

Text: S05542                            Text: S05544
Text: S05500 - S05599                   Text: S Index
Bills and Amendments: General Index     Bill History: General Index

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