§ 163-278.27. Criminal penalties; duty to report and prosecute.
Overview of Statute
Section prescribes specific Articles subject to criminal punishment and established the statute of limitations as stated in 15-1 to run from the day the last report is due to be filed for the election cycle for which the violation occurred, in addition to mandating Board procedure upon knowledge or suspicion of a violation.
(a) Any individual, candidate, political committee, referendum committee, treasurer, person or media who intentionally violates the applicable provisions of G.S. 163-278.7, 163-278.8, 163-278.9, 163-278.10, 163-278.11, 163-278.12, 163-278.13, 163-278.13B, 163-278.14, 163-278.16, 163-278.16B, 163-278.17, 163-278.18, 163-278.19, 163-278.20, 163-278.39, 163-278.40A, 163-278.40B, 163-278.40C, 163-278.40D, 163-278.40E, or 163-278.40J is guilty of a Class 2 misdemeanor. The statute of limitations as stated in G.S. 15-1 shall run from the day the last report is due to be filed with the appropriate board of elections for the election cycle for which the violation occurred.
(b) A violation of G.S. 163-278.32 by making a certification knowing the information to be untrue is a Class I felony.
(c) A person or individual who intentionally violates G.S. 163-278.14(a) or G.S. 163-278.19(a) and the unlawful contributions total more than ten thousand dollars ($10,000) per election is guilty of a Class I felony.
(c1) The Board shall refer apparent violations under this section to the State Ethics Commission. The State Ethics Commission shall investigate and make confidential recommendations to the Board regarding the appropriateness of a criminal referral for those alleged violations, as provided in G.S. 138A-13.5. The Board shall not take action under subsection (b) of this section for 90 days after the referral to the State Ethics Commission.
(d) Following receipt and consideration of the confidential recommendation from the State Ethics Commission as provided in subsection (a3)[(c1)] of this section, if the Board has knowledge of or has reason to believe there has been a violation of any section of this Article, it shall report that fact, together with accompanying details and a copy of the recommendation issued by the State Ethics Commission, to the following prosecuting authorities:
(1) In the case of a candidate for nomination or election to the State Senate or State House of Representatives: report to the district attorney of the prosecutorial district in which the candidate for nomination or election resides;
(2) In the case of a candidate for nomination or election to the office of Governor, Lieutenant Governor, Secretary of State, State Auditor, State Treasurer, State Superintendent of Public Instruction, State Attorney General, State Commissioner of Agriculture, State Commissioner of Labor, State Commissioner of Insurance, and all other State elective offices, Justice of the Supreme Court, Judge of the Court of Appeals, judge of a superior court, judge of a district court, and district attorney of the superior court: report to the district attorney of the prosecutorial district in which Wake County is located;
(3) In the case of an individual other than a candidate, including, without limitation, violations by members of political committees, referendum committees or treasurers: report to the district attorney of the prosecutorial district in which the individual resides; and
(4) In the case of a person or any group of individuals: report to the district attorney or district attorneys of the prosecutorial district or districts in which any of the officers, directors, agents, employees or members of the person or group reside.
(e) Upon receipt of such a report from the Board, the appropriate district attorney shall prosecute the individual or persons alleged to have violated a section or sections of this Article.
(f) As a condition of probation, a sentencing judge may order that the costs incurred by the State Board of Elections in investigating and aiding the prosecution of a case be paid to the State Board of Elections by the defendant on such terms and conditions as set by the judge.
(1973, c. 1272, s. 1; 1979, c. 500, s. 10; c. 1073, ss. 15, 19; 1981, c. 837, s. 4; 1987, c. 565, s. 17; 1993, c. 539, s. 1118; 1994, Ex. Sess., c. 24, s. 14(c); 1999-453, s. 2(c); 2001-419, s. 2; 2006-161, s. 5; 2007-391, s. 1(b); 2008-150, s. 9(b); 2008-187, s. 29; 2010-169, s. 6(a); 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 4.11(d).)
1. Definition for individual
The term “individual” means a single individual or more than one individual.
2. Definition for referendum
The term “referendum” means any question, issue, or act referred to a vote of the people of the entire State by the General Assembly, a unit of local government, or by the people under any applicable local act and includes constitutional amendments and State bond issues. The term “referendum” includes any type of municipal, county, or special district referendum and any initiative or referendum authorized by a municipal charter or local act. A recall election shall not be considered a referendum within the meaning of this Article.
3. Definition for Referendum
“Referendum” means the event in which voters cast votes for or against ballot questions other than the election of candidates to office.
4. Definition for contribution
The terms “contribute” or “contribution” mean any advance, conveyance, deposit, distribution, transfer of funds, loan, payment, gift, pledge or subscription of money or anything of value whatsoever, made to, or in coordination with, a candidate to support or oppose the nomination or election of one or more clearly identified candidates, to a political committee, to a political party, to an affiliated party committee, or to a referendum committee, whether or not made in an election year, and any contract, agreement, or other obligation to make a contribution. An expenditure forgiven by a person or entity to whom it is owed shall be reported as a contribution from that person or entity. These terms include, without limitation, such contributions as labor or personal services, postage, publication of campaign literature or materials, in-kind transfers, loans or use of any supplies, office machinery, vehicles, aircraft, office space, or similar or related services, goods, or personal or real property. These terms also include, without limitation, the proceeds of sale of services, campaign literature and materials, wearing apparel, tickets or admission prices to campaign events such as rallies or dinners, and the proceeds of sale of any campaign-related services or goods. Notwithstanding the foregoing meanings of “contribution,” the word shall not be construed to include services provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate, political committee, or referendum committee. The term “contribution” does not include an “independent expenditure.” If:
a. Any individual, person, committee, association, or any other organization or group of individuals, including but not limited to, a political organization (as defined in section 527(e)(1) of the Internal Revenue Code of 1986) makes, or contracts to make, any disbursement for any electioneering communication, as defined in this section; and
b. That disbursement is coordinated with a candidate, an authorized political committee of that candidate, a State or local political party or committee of that party, an affiliated party committee, or an agent or official of any such candidate, party, or committee that disbursement or contracting shall be treated as a contribution to the candidate supported by the electioneering communication or that candidate’s party and as an expenditure by that candidate or that candidate’s party.
5. Definition for election cycle
The term “election cycle” means the period of time from January 1 after an election for an office through December 31 after the election for the next term of the same office. Where the term is applied in the context of several offices with different terms, “election cycle” means the period from January 1 of an odd-numbered year through December 31 of the next even-numbered year.
6. Definition for political committee
The term “political committee” means a combination of two or more individuals, such as any person, committee, association, organization, or other entity that makes, or accepts anything of value to make, contributions or expenditures and has one or more of the following characteristics:
a. Is controlled by a candidate;
b. Is a political party or executive committee of a political party or is controlled by a political party or executive committee of a political party;
c. Is created by a corporation, business entity, insurance company, labor union, or professional association pursuant to G.S. 163A-1436(d); or
d. Has the major purpose to support or oppose the nomination or election of one or more clearly identified candidates; [or]
e. Is an affiliated party committee. Supporting or opposing the election of clearly identified candidates includes supporting or opposing the candidates of a clearly identified political party. If the entity qualifies as a “political committee” under sub-subdivision a., b., c., or d. of this subdivision, it continues to be a political committee if it receives contributions or makes expenditures or maintains assets or liabilities. A political committee ceases to exist when it winds up its operations, disposes of its assets, and files its final report. The term “political committee” includes the campaign of a candidate who serves as his or her own treasurer. Special definitions of “political action committee” and “candidate campaign committee” that apply only in Part 2 of this Article are set forth in G.S. 163A-1475.
7. Definition for referendum committee
The term “referendum committee” means a combination of two or more individuals such as a committee, association, organization, or other entity or a combination of two or more business entities, corporations, insurance companies, labor unions, or professional associations such as a committee, association, organization, or other entity the primary purpose of which is to support or oppose the passage of any referendum on the ballot. If the entity qualifies as a “referendum committee” under this subdivision, it continues to be a referendum committee if it receives contributions or makes expenditures or maintains assets or liabilities. A referendum committee ceases to exist when it winds up its operations, disposes of its assets, and files its final report.
8. Definition for day
The term “day” means calendar day.
9. Definition for board
The term “board” means the State Board with respect to all candidates for State, legislative, and judicial offices and the county board of elections with respect to all candidates for county and municipal offices. The term means the State Board with respect to all statewide referenda and the county board of elections conducting all local referenda.
10. Definition for media
The term “communications media” or “media” means broadcasting stations, carrier current stations, newspapers, magazines, periodicals, outdoor advertising facilities, billboards, newspaper inserts, and any person or individual whose business is polling public opinion, analyzing or predicting voter behavior or voter preferences. Special definitions of “print media,” “radio,” and “television” that apply only in Part 2 of this Article are set forth in G.S. 163A-1475.
11. Definition for Board
Board. – Any State board, commission, council, committee, task force,
authority, or similar public body, however denominated, created by statute or
executive order, as determined and designated by the State Board, except for
those public bodies that have only advisory authority.
12. Definition for State
“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
13. Definition for person
The term “person” means any business entity, corporation, insurance company, labor union, or professional association.
14. Definition for Office
(4) Office. – The elected office for which the candidate has filed or petitioned.
(2006-155, s. 1; 2006-259, s. 48(a); 2017-6, s. 3.)
15. Definition for election
The term “election” means any general or special election, a first or second primary, a run-off election, or an election to fill a vacancy. The term “election” shall not include any local or statewide referendum.
16. Definition for Election
“Election” means the event in which voters cast votes in ballot items concerning proposals or candidates for office in this State or the United States. The term includes primaries, general elections, referenda, and special elections.
17. Definition for candidate
The term “candidate” means any individual who, with respect to a public office listed in G.S. 163A-1411(80), has taken positive action for the purpose of bringing about that individual’s nomination, retention, or election to public office. Examples of positive action include any of the following:
a. Filing a notice of candidacy, filing a notice to be retained, or a petition requesting to be a candidate.
b. Being certified as a nominee of a political party for a vacancy.
c. Otherwise qualifying as a candidate in a manner authorized by law.
d. Making a public announcement of a definite intent to run for public office in a particular election.
e. Receiving funds or making payments or giving the consent for anyone else to receive funds or transfer anything of value for the purpose of bringing about that individual’s nomination or election to office. Transferring anything of value includes incurring an obligation to transfer anything of value. Status as a candidate for the purpose of this Article continues if the individual is receiving contributions to repay loans or cover a deficit or is making expenditures to satisfy obligations from an election already held. Special definitions of “candidate” and “candidate campaign committee” that apply only in Part 2 of this Article are set forth in G.S. 163A-1475.
18. Definition for treasurer
The term “treasurer” means an individual appointed by a candidate, political committee, or referendum committee as provided in G.S. 163A-1412 or G.S. 163A-1496. (1973, c. 1272, s. 1; 1975, c. 798, ss. 5, 6; 1979, c. 500, s. 1; c. 1073, ss. 1-3, 19, 20; 1981, c. 837, s. 1; 1983, c. 331, s. 6; 1985, c. 352, ss. 1-3; 1997-515, ss. 4(a)-(c), 7(b)-(d); 1999-31, ss. 1(a), (b), 2(a)-(c), 3, 4(a); 1999-424, s. 6(a), (b); 2002-159, s. 55(n); 2003-278, s. 5; 2004-125, s. 3; 2004-127, s. 15; 2004-203, s. 12(b); 2005-430, s. 10; 2006-264, s. 23; 2007-391, s. 3; 2008-150, s. 6(a); 2008-187, s. 33(a); 2009-534, ss. 1, 3(a), (b); 2010-170, s. 1; 2011-31, s. 20; 2013-381, s. 50.1; 2015-66, s. 8(a); 2015-258, ss. 3(b), (b1); 2015-264, ss. 81(c), (d); 2017-6, s. 3.)
19. Definition for Committee
Committee. – The Legislative Ethics Committee as created in Part 3 of Article
14 of Chapter 120 of the General Statutes.
20. Definition for Candidate
“Candidate” means any individual who, with respect to a public office listed in G.S. 163A-1411(80), has filed a notice of candidacy, notice of retention, or a petition requesting to be a candidate, or has been certified as a nominee of a political party for a vacancy, or has otherwise qualified as a candidate in a manner authorized by law, or has filed a statement of organization under G.S. 163A-1412 and is required to file periodic financial disclosure statements under G.S. 163A-1418.
North Carolina Cases
Case Name: State v. Bolt
Citation: 344 S.E.2d 51
Case PDF: State v. Bolt
Case Summary: Statute governing prosecution for violations of article within election laws regulating contributions and expenditures in political campaigns is clearly mandatory in its language.
Case Name: Preston v. Leake
Citation: 629 F. Supp.2d 517
Federal District Court: Eastern District of North Carolina
Case PDF: Preston v. Leake
Case Summary: Lobbyist had standing to bring action alleging that North Carolina statute barring state campaign contributions from lobbyists violated her First Amendment free speech and association rights; statute facially restricted expressive activity of class to which lobbyist belonged, and violators were subject to prosecution.