REQUESTED BY: J. Russell Derr for Citizens for the Republic/State Candidate Committee
QUESTION: May an independent committee organized under the laws of the State of California participate in a Nebraska state election where their participation exceeds $1,000, without forming a committee under the Nebraska Political Accountability and Disclosure Act and complying with all of the requirements for an independent committee.
Yes, under the circumstances outlined in the analysis.
The factual basis for your questions is that the Citizens for the Republic/State Candidate Committee is an independent committee organized under the laws of the State of California and subject to the political reporting requirements of California law with regard to political activity. The Committee raises funds for the purpose of supporting candidates for public office at the state level. It is our understanding that some funds of the committee may be raised from contributors who reside in Nebraska. We also understand that your committee desires to make a contribution of its funds to a candidate for a Nebraska state office in an amount greater than $1,000. Based on these facts, you then point to Neb. Rev. Stat. Section 49-1413 reissue 1984 which defines a committee as a combination of two or more individuals which receives contributions or makes expenditures of more than $1,000 to influence an election either of a candidate or a ballot question.
You also point out Neb. Rev. Stat. Section 49-1468 reissue 1984 which in part provides: "Any contribution which is controlled by or made at the direction of, another person, including a parent organization, subsidiary, division, committee, department, branch, or local unit of a person, shall be reported by the person making the contribution and shall be regarded as a contribution attributable to both persons."
In connection with this provision of the Act you point out that the committee is a subsidiary of a national political committee organized under federal law which raises money nationally, and in part funds the activities of the committee organized under California law.
Your concern, of course, is the requirement that a committee in Nebraska is required to file a Statement of Organization of a Political Committee, Form A-1, and is required to comply with other provisions of the Act including establishing a separate bank account in Nebraska and appointing a treasurer in Nebraska.
A review of the Nebraska Political Accountability and Disclosure Act shows that it no longer makes a distinction between a committee organized under Nebraska law and committees organized under the laws of other states or the federal government. Neb. Rev. Stat. Section 49-1476 and Section 49-1456 prior to the adoption of LB134 in the 1981 legislative session made provision for such contributions. Those sections, repealed by LB134, required that a contribution exceeding $100 from a committee or person whose principal office was not located in Nebraska could be accepted if it was accompanied by a certified statement setting forth the name of the person or committee as well as the address and the amount contributed.
The question posed is whether it would be a violation on the part of the out-of-state committee to make a contribution in excess of $1,000 without complying with the Act. It is our view that it is not a violation. A strict reading of Section 49-1413 and Section 49-1468 could result in a requirement of strict compliance. However, we do not believe such a reading is either required or reasonable and could create a chilling effect on political expression. To do so would allow an individual from another state to make such a contribution without reporting, but preclude a committee from doing the same. It would also raise questions under the full faith and credit, privileges and immunities and due process clauses of the federal constitution. Nothing in the history of LB134 would require such a result. Indeed the legislative history is silent as to the reason for the repeal. We thus, may not presume that the reason was to preclude out-of-state contributions.
There are, however, certain caveats that we believe should be brought to your attention. The out-of-state committee must be one formed under the laws the federal government or of another state. It cannot be one engaged in the conduct of political activities within the state of Nebraska. By that we mean that while such a committee could solicit contributions from Nebraska residents, and make contributions to a Nebraska candidates, the solicitation must be for the general purposes of the out-of-state committee. The intent of the person making the contribution controls. (See NADC Advisory Opinion #70). If the contribution solicited is for the general purposes of the out-of-state committee and not earmarked or designated for a Nebraska candidate then compliance is not required. The distinction made is that while a committee may solicit funds in any place authorized under the laws of the jurisdiction where it is organized it may not use the fact of its organization under such a jurisdiction to engage in political activities beyond contributions or solicitations referred to in this opinion in Nebraska.
The Nebraska recipient of such a contribution, whether it be a candidate committee or a ballot question committee, would be required to report the contribution along with the appropriate information required by the statutes. These requirements will allow one to ascertain the nature of the entity or person making the contribution to the Nebraska candidate or ballot question committee and lead them to the appropriate jurisdiction to make any further inquiry desired. Should you have any further questions regarding the specifics of this answer, please contact the Commission office.