Advisory Opinion #184

 

SUBJECT: Campaign Financing/Use of Campaign Funds.

 

REQUESTED BY: Randall Ritnour, treasurer, Defense of Marriage Amendment (DOMA) Committee.

 

QUESTIONS PRESENTED: (1) May a ballot question committee use campaign funds for the purpose of litigation in support of the ballot question? (2) May a ballot question committee use campaign funds for the purpose of engaging in public debate in support of the ballot question?

 

CONCLUSIONS: As to Question 1: see analysis.  As to Question 2: see analysis.

 

FACTS: Amendment 416, also known as the Defense of Marriage Amendment, was qualified as a ballot question in the 2000 election.  The Defense of Marriage Amendment Committee is a ballot question committee formed for the purpose of supporting its qualification and passage.  Amendment 416 was passed by the voters on November 7, 2000.  Shortly after its passage, an organization opposed to Amendment 416 expressed an intention to challenge it in the courts.  Randall Ritnour, treasurer of the DOMA Committee, inquires as to whether unexpended campaign funds may be used for litigation in defense of such challenges, and additionally whether such funds may be used to engage in public debate in support of the amendment.

 

ANALYSIS:  Section 49-1446.01 of the Nebraska Political Accountability and Disclosure Act provides in relevant part that:

 

No committee, other than a political party committee, may expend or transfer funds except to make an expenditure, as defined by subsections (1), (2), or (3) of section 49-1419, or as provided in this section. 

 

This statute goes on to list a number of specific purposes for which campaign funds may be used.

 

Section 49-1419 defines expenditure as:

 

 

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…a payment, donation, loan, pledge, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of…the qualification, passage, or defeat of a ballot question (emphasis supplied).

 

Section 49-1446.02 lists a number of specific prohibitions on the use of campaign funds.  Of particular interest is subsection (5), which specifically forbids the use of such funds for “personal services, including the services of a lawyer or accountant, except campaign services subject to reporting pursuant to the provisions of §49-1455.”

 

It is clear from a collective interpretation of the foregoing authorities that the Legislature intended to restrict the use of campaign funds, providing only limited and well-defined exceptions to those restrictions.  Accordingly, the answer to each of the questions presented turns on whether the proposed expenditure assists the qualification, passage, or defeat of the ballot question.

 

It is acknowledged that legal challenges to Amendment 416 can be premised on a number of different arguments.  Some of those arguments might address perceived irregularities regarding its qualification and passage, while others might address the actual effect or impact of the amendment.  To the extent that a legal challenge to Amendment 416 alleges an issue of fact or law regarding its qualification, passage, or defeat as a ballot question, an expenditure made for the services of an attorney to defend such challenge falls within the exception to the personal services prohibition contained in §49-1446.02 as a campaign service.

 

Conversely, an expenditure made for the services of an attorney to defend the amendment against a challenge not related to its qualification, passage, or defeat (for example, its constitutionality) would not be a campaign service and thus prohibited under §49-1446.02.  In Advisory Opinion 135 the Commission was presented with the question of whether a candidate committee could transfer campaign funds to a separate entity organized for the purpose of challenging in court a legislative redistricting bill.  We stated:

 

The proposed use of campaign funds does not appear to meet the definition of an expenditure as found in §49-1419.  It does not appear to fall within any of the categories of permitted uses found within §49-1446.01.  It most closely resembles the prohibition found in §49-1446.02 prohibiting payment for the services of a lawyer except for campaign purposes.  It is therefore our position that the proposed use of campaign funds is not permitted by Nebraska law.

 

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Based on the foregoing analysis, it is our position that campaign funds may be expended in support of litigation either for or against a ballot question only to the extent that such litigation is related to its qualification, passage, or defeat.

 

There is no question that public debate of a ballot question can be instrumental in its passage or defeat.  Accordingly, expenditures of campaign funds for this purpose are permissible under §49-1419.  However, public debate occurring after the passage or defeat of a ballot question does not assist in its qualification, passage or defeat.

 

Section 49-1405 defines a ballot question as:

 

…any question which is submitted or which is intended to be submitted to a popular vote at an election, including, but not limited to, a question submitted or intended to be submitted by way of initiative, referendum, recall, judicial retention, or bond issue or as a result of legislative action or action of a government body, whether or not it qualifies for the ballot.

 

By implication it is clear that a ballot question, once it has been answered by the voters, loses its character as a ballot question and assumes a different form depending on its passage or defeat.  In the case of Amendment 416, the ballot question became an amendment to the Constitution of the State of Nebraska by virtue of its passage.  The use of campaign funds to encourage debate on a constitutional amendment already passed by the voters does not appear to meet the definition of expenditure under §49-1419.  Consequently, it is our position that any expenditure of campaign funds for the purpose of supporting public debate regarding a ballot question is permissible only until the question has been decided by popular vote.

 

Summary:  (1) A ballot question committee may use campaign funds for the purpose of litigation in support of a ballot question only to extent that the litigation relates to the qualification, passage, or defeat of the ballot question.  (2) A ballot question committee may use campaign funds for the purpose of engaging in public debate in support of or opposition to a ballot question only until the question has been decided by popular vote.

 

Adopted as an advisory opinion pursuant to section 49-14,123(10) and Title 4, Chapter 1, Rules and Practice Procedure.  As provided in §49-12,123(10), this Advisory Opinion shall be binding upon the Commission unless amended or revoked, concerning the person or public body who requested the opinion and acted in reliance on it in good faith unless material facts were omitted or misstated by the person in the request for the opinion.

 

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Dated this  _______ day of January, 2001.

 

NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION

 

 

 

____________________________

Dawn Rockey, Acting Chairperson