REQUESTED BY: The Honorable Richard Peterson, State Senator, District #21
QUESTION: May a candidate committee transfer funds to an entity organized to challenge in court a legislative redistricting bill?
Legislative Bill 614, Laws 1991 reapportioned the districts of the Nebraska State Legislature based upon the 1990 Federal Census. Among the effects of this reapportionment bill was the elimination of Legislative District #21 consisting of Madison County, Senator Richard Peterson is proposing to transfer funds from his candidate committee to an entity organized for the purpose of mounting a court challenge to LB614. Senator Peterson inquiries as to whether he may use campaign funds for this purpose.
The use of campaign funds is chiefly governed by three sections of the Nebraska Political Accountability and Disclosure Act. They are section 49-1419, section 49-1446.01, and section 49-1446.02.
Section 49-1446.01 provides in part that:
No committee, other than a political party committee, may expend or transfer funds except to make an expenditure, as defined in subsection (1), (2), (3) of section 49-1419, or as provided in this section.
Section 49-1446.01 then goes on to list certain expenditures which are specifically permitted.
Section 49-1419 generally describes an expenditure as "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, or in opposition to, the nomination or election of a candidate . . . " (emphasis added).
Section 49-1446.02 sets forth specific uses for which campaign funds may not be used. The prohibited uses include "personal services, including the services of a lawyer or accountant, except campaign services subject to reporting pursuant to section 49-1455".
Taking section 49-1419, section 49-1446.01 and section 49-1446.02 as a whole, it is apparent that the intent of the Legislature was to restrict the use of campaign funds. Section 49-1419 restricts the use of campaign funds. Section 49-1446.02 restricts the use of campaign funds. Section 49-1446.01 generally restricts the use of campaign funds and provides certain exceptions to those restrictions.
An accurate response to the question presented requires an examination of the nature of a court challenge to a reapportionment bill. More specifically, is a challenge to a legislative reapportionment bill eliminating a senator's seat an expenditure in support of the nomination or election of the candidate?
The United States Supreme Court has held that "reapportionment is primarily the duty and responsibility of the state through its Legislature . . . ". Chapman v. Meier 420 US 1 (1975). The Court has extended this responsibility, stating that even when a court redistricts a state because of legislative inaction, the redistricting remains a legislative act. "(T) he fact that the reapportionment plan before us was devised in response to an order of a federal court does not change its character as a legislative plan". McDaniel v. Sanchez 425 US 130 (1981). The Constitution of the State of Nebraska affirmatively grants the power to redistrict to the legislature. Article III, Section 5 provides that "The Legislature shall redistrict the state after each federal decennial census". The Nebraska Supreme Court has taken a position consistent with that of the United States Supreme Court by holding that "the matter of apportionment is . . . essentially legislative, restrained only by the Constitution". Rogers v. Morgan 127 Neb 456 (1934).
It is apparent from the foregoing authority that reapportionment is a legislative act which never loses its legislative character. In contrast, an election is part of the voters privilege conferred by the Constitution of the State of Nebraska in Article I, Section 22. Section 49-1416 of the Act defines election as:
. . . (A) primary, general, special, or other election held in this state or a convention or caucus of a political party held in this state to nominate a candidate. Election includes a recall vote.
The term election does not appear to contemplate a challenge to a legislative Act.
In Advisory Opinion #109 the Commission considered a matter in which an organization was collecting and spending money to challenge a provision of the State Constitution established through the initiative process. The Commission stated:
Your description of the use to which you plan to put the legal fund does not include assistance of, or opposition to, the nomination or election of a candidate nor does it include the qualification, passage, or defeat or a ballot question.
The opinion went on to state that since the organization was not making "expenditures" as defined, the organization had no reporting obligations under the campaign practices section of the Act.
In League of Nebraska Municipalities v. Marsh 209 F.Supp. 189 (1962), the United States District Court for the District of Nebraska, in connection with a challenge of a failure to reapportion, stated:
Only a citizen who is legal voter in a legislative district where his rights are impinged by the failure to reapportion can maintain such an action.
That is, a court challenge for failing to reapportion may be brought by an individual or group of individuals acting in their individual capacities. The logic used by the court is just as easily applied to an individual challenging a reapportionment by the Legislature. These types of actions may not be brought in the name of any organization. It would therefore seem that any expense associated with a court challenge to a reapportionment bill would be a personal expense.
The proposed use of campaign funds does not appear to meet the definition of an expenditure as found in section 49-1419. It does not appear to fall within any of the categories of permitted uses found within section 49-1446.01. It most closely resembles the prohibition found in section 49-1446.02 prohibiting payment for the services of a lawyer except for campaign services. It is therefore our position that the proposed use of campaign funds is not permitted by Nebraska Law.
This opinion should not be construed as prohibiting all uses of campaign funds in connection with litigation. Certainly there are some areas of litigation in which the use of campaign funds would be permissible. For example, a candidate could use campaign funds to pay the legal expenses of an election contest since the ultimate question before the court would be the outcome of the election. A candidate could also use campaign funds to defend against a civil lawsuit by a vendor which provided goods or services to a campaign committee when the amount owed by the committee is in dispute. The use of campaign funds in connection with litigation must be considered on a case by case basis and no general position in this area should be implied by this opinion.