ADVISORY OPINION #192
Subject: Campaign Finance /Campaign Finance Limitation Act
Requested By: State Senator Pam Redfield
Question Presented: Is a term limited State Senator required to file affidavits pursuant to the Campaign Finance Limitation Act?
Facts: The Campaign Finance Limitation Act (CFLA) requires candidates for covered elective offices to file affidavits indicating if they will abide by the voluntary spending limits or not abide by the voluntary spending limits. Those who do not abide must also file an affidavit providing an estimate of their spending. An abiding candidate who faces a non-abiding candidate is potentially eligible for public funds to be used in the campaign. The term covered elective office is defined by the CFLA and includes the office of member of the Nebraska Legislature.
The Commission has generally considered a person holding any elective office to be a candidate for reelection. Likewise, it has considered a person with a candidate committee to be a candidate for the office stated in the committee’s statement of organization.
In November 2000 the people of the state approved a term limits amendment to the Nebraska State Constitution. This amendment is found at Article III, section 12. The effect of the amendment is to limit members of the state legislature to two consecutive terms of service.
The question posed is whether a member of the Legislature is required to file an affidavit under the CFLA if he or she is barred from seeking reelection because of term limits.
Analysis: Section 32-1604(4) of the Campaign Finance Limitation Act provides that a candidate for a covered elective office who desires to receive public funds shall file an affidavit agreeing to abide by the voluntary spending limits for that
Advisory Opinion #192
office and agreeing to be personally liable for the proper use of any public funds. Section 32-1604(5)(a) provides that a candidate for a covered elective office who does not file an affidavit pursuant to subsection (4), must file an affidavit indicating that the candidate will not abide by the voluntary spending limits and provide an estimate of expenditures for the primary election.
Section 32-1604.01 of the CFLA provides in part that “each candidate for a covered elective office … shall file either an affidavit to abide under subsection (4) of section 32-1604 or an affidavit not to abide under subdivision (5)(a) of section 32-1604 with the Nebraska Accountability and Disclosure Commission.” Section 32-1604.01 exempts those candidates who are not required to form a candidate committee pursuant to the Nebraska Political Accountability and Disclosure Act (NPADA). The NPADA does not require candidates who raise, receive or spend less than $5,000 in a calendar year to form committees.
Section 32-1603 provides that for the purposes of the CFLA, the definitions found in sections 49-1404 to 49-1444 of the NPADA shall apply. Section 49-1409 defines the term candidate. Part of the definition states, “An elected officeholder shall, if eligible under law, be considered a candidate for reelection to that same office for the purposes of sections 49-1401 to 49-14,138 only”. Despite the use of the phrase “for the purposes of sections 49-1401 to 49-14,138 only”, we believe that §32-1603 incorporates the definition of the term candidate into the CFLA. The “only” language appears intended to distinguish the use of the term candidate for campaign finance purposes of the NPADA from the use of the term candidate for the purposes of the state election code. The statutes dealing with the latter subject are not within the jurisdiction of the Commission. Section 32-1603 shows a clear intent on the part of the Legislature to incorporate the definition of candidate in §49-1409 into the CFLA.
With the adoption of term limits for members of the Legislature, members who are serving their second consecutive term in the Legislature are no longer officeholders eligible for reelection. They don’t fit the definition of candidate found in §49-1409 of the NPADA and incorporated into the CFLA by §32-1603. Accordingly, the obligation of candidates for covered elective offices to file affidavits pursuant to §32-1604 and §32-1604.01 does not apply to members of the Legislature who are barred from seeking reelection by Article III, section 12 of the Nebraska State Constitution.
Summary: A member of the Legislature who cannot seek reelection to the Legislature because of term limits is not required to file affidavits pursuant to the Campaign Finance Limitation Act unless he or she is a candidate for a different covered elective office.
Advisory Opinion #192
ADOPTED as an advisory opinion pursuant to Section 49-14,123(10) and Title 4, Chapter 1, Rules of Practice and Procedure. As provided in Section 49-14,123(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 thereon in good faith unless material facts were omitted or misstated by the person in the request for the opinion.
DATED this ______ day of March 2005
NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION
John Bergmeyer, Chairman