REQUESTED BY: Rosalie Shepherd, State Director, United We Stand America - Nebraska.
QUESTION: Does the language in a brochure constitute support of or opposition to a candidate such that it is an expenditure?
United We Stand Nebraska (UWSA - NE) is the Nebraska Chapter of United We Stand America (UWSA). UWSA describes itself as a grassroots movement focused on economic and government reform at the federal, state, and local levels of government. Included within UWSA's self description is the following:
UWSA is not a political party. We are an educational, nonpartisan, nonprofit organization designed to inform the public about the important issues facing our country and to give our members a voice in the way that we are governed.
Prior to the November 1994 General Election, the Nebraska Chapter distributed a brochure entitled PAC Contributions in 1990 - Nebraska Political Action Committees and Who They Helped in 1990. The brochure lists eighty political action committees. It provides the total amount in expenditures made by each during the 1990 Elections. Additionally, it provides the names of individuals who were candidates during the 1990 Elections to whom any one of the PACs gave more than $1,000. The individuals listed were candidates for Legislature, Governor, and other nonfederal Nebraska offices.
Finally, the brochure states as follows:
Vote for Our Country and Our Freedoms
We the members of the Nebraska Chapter of United We Stand America urge all Nebraskans to register and exercise their right to vote as citizens of the United States. We urge you to support candidates that will represent we the people instead of special interest groups. (Emphasis added)
The message is followed by information on membership fees and how to join the organization.
UWSA - NE wishes to know if this language would be construed as supporting or opposing the nomination or election of a candidate. If so, it wishes to know if the brochure falls within one of the exceptions to the term "expenditure." Expenditures, of course, are subject to reporting pursuant to the Nebraska Political Accountability and Disclosure Act.
Section 49-1419 of the Nebraska Political Accountability and Disclosure Act defines the term expenditure as follows:
1) Expenditure shall mean a payment, donation, loan, pledge or promise of payment 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, or the qualification, passage, or defeat of a ballot question. An offer or tender of an expenditure is not an expenditure if expressly and unconditionally rejected or returned.
2) Expenditure shall include a contribution or transfer of anything of ascertainable monetary value for the purpose of influencing the nomination or election of any candidate or the qualification, passage, or defeat of a ballot question.
The brochure lists PACs and the names of candidates to whom the PACs have given campaign contributions. It then asks its readers "to support candidates that will represent we the people instead of special interests groups." The implication is, do not vote for the candidates listed in this brochure. It is our position that the cost of this brochure is an expenditure in opposition to the nomination or election of those candidates listed in the brochure who were running for office in 1994.
Instructive is the opinion of the United States Supreme Court in FEC v. Massachusetts Citizens for Life, 479 US 238, 93 L Ed 2d 539(1986). The case involved a group known as Massachusetts Citizens for Life (MCFL). Prior to the fall primary and fall general election in Massachusetts, the group published a "newsletter." The newsletter exhorted the reader to "vote for pro life." It then went on to list all state and federal candidates and identified candidates as either supporting or opposing the positions of MCFL. The newsletter stated that, "This special election edition does not represent an endorsement of any particular candidate." Copies of this newsletter were mailed to members of MCFL. Evidence indicated that it was also made available to the general public. The U.S. Supreme Court noted that the Federal Election Campaign Act contained a definition of the term expenditure "including within that term the provision of anything of value made for the purpose of influencing any election for federal office." Massachusetts Citizens for Life, 93 L Ed 2d at 548. It concluded that the newsletter was an expenditure. The court's opinion is helpful here.
Paragraph 3 of §49-1419 provides exceptions to the term expenditure. Some of the exceptions are clearly not applicable here. We do, however, take note of those exceptions which are potentially applicable.
Section 49-1419(3)(b) excludes from the definition of the term expenditure "an expenditure for communication by a person strictly with the person's paid members or shareholders. . . ." We do not believe that this exception is applicable in this case. The brochure in question does not seem to be a communication to the members of United We Stand America or United We Stand America - Nebraska. On the contrary, it appears to be directed to non-members by describing the organization and providing information as to how to join the organization.
Section 49-1419(3)(c) excludes from the term expenditure "an expenditure for communication on a subject or issue if the communication does not support or oppose a ballot question or candidate by name or clear inference." The clear inference in the brochure is that votes should not be cast for candidates accepting support from special interests who are listed in the brochure. This section, therefore, does not apply.
Section 49-1419(3)(e) exempts from the term expenditure "an expenditure for nonpartisan voter registration activities. This exclusion shall not apply if a candidate or group of candidates sponsors, finances, or is identified by name with the activity. While the brochure does urge Nebraskans to register and vote, it also suggests how they ought to vote. The exception is, therefore, not applicable.
For the sake of clarity, further comment may be helpful. A publication which urges people to register and vote does not, by itself, constitute an expenditure. The mere publication of a list of candidates who accepted money from political action committees does not constitute an expenditure. By itself, a statement urging people to vote for those candidates who will not represent special interests does not constitute an expenditure. It is the combination of the list of candidates accepting PAC funds and the exhortation that voters support candidates that will represent the people rather than special interest groups which constitutes an expenditure.
The brochure in question opposes the nomination or election of certain candidates. The cost of the brochure, therefore, is an expenditure which does not fall within any of the exceptions to the term expenditure. The expenditure must be reported by United We Stand America - Nebraska in accordance with the provisions of the Nebraska Political Accountability and Disclosure Act.