The Attorney General of Texas
August 21, 1979
MARK WHITE
Attorney General
Honorable William P. Clements, Jr. Opinion No. MI+4 8
Governor of Texas
State Capitol Re: Whether contributions to
Austin, Texas 787R defray the cost of the Republican
Governors’ Conference are subject
to the Lobbv Act of 1973 or the
Campaign R.&orting and Disclosure
Act of 1973.
Dear Governor Clements:
You have asked whether the provisions of the Lobby Act of 1973 or of
the Political Funds Reporting and Disclosure Act apply to contributions by
individuals or corporations to defray the costs of the 1979 Annual Republican
Governors’ Conference, which will be held in Austin in November of this
Year.
The conference is held under the auspices of the Republican Governor’s
Association. You explain that “while each of the Governors who wilt be in
attendance are members of the same political party, the thrust and purpose
of the conference will be the discussion of many pressing issues of state and
national concern.” You will~designate a chairman of a host committee to
solicit contributions to defray the cost of the conference. Your office
advises that the host committee will not make a contribution to any
candidate for public office nor to any officeholder, nor will the host
committee become involved in activities designed to influence legislation or
to influence an officeholder in the discharge of his official duties. The host
committee intends to voluntarily file a report of the sources and amounts of
contributions and names, amounts and descriptions of expenditures made.
An Equal Oppmt”“ity, The Political Funds Reporting and Disclosure Act, codified in chapter
Animlative
Action
Employer 14 of the Election Code, regulates contributions to candidates, officeholders,
and political committees. Since the contributions about which you inquire
are to be made to a host committee in support of the 1979 Annual
Republican Governors’ Conference, and not to any candidate or officeholder,
we need only consider contributions to political committees.
Article 14.01(O) defines a political committee:
P. 144
Honorable William P. Clements, Jr. - Page Two (I~-48)
(0) ‘Political committee’ is defined as any group of persons
(1) formed to collect contributions or make expenditures in support
for or in opposition to a candidate or candidates, whether presently
identifiable or not, or a measure or measures, whether presently
identifiable or not, on a ballot in a public election; or (2) formed to
collect contributions or make expenditures for office holders
whether presently identifiable or not.
The definition of “person” in article 14.01(N) includes a “group of persons associated with a
political party or element thereof.”
The crucial definitions in the Act are those of “contribution” and “expenditure”
which describe something of value transferred with the intent that it be used in an
election. Elec. Code. art. 14.01(D), (E). The definition of contribution requires that the
funds or other thing given be “involved in an election.” The definition also refers to an
individual or group being “involved in an election” upon receipt of a contribution given and
received “with the intent that it be used or held for some election.” Thus, the intent of
the contributors and those soliciting contributions must be that the funds be used in an
election.
The elections with which the Act is concerned are those for a public office created
by or under authority of the laws of Texas, or those on a measure submitted to the people
of Texas~ See Blec. Code arts. 14.01(F), (G), and (M), defining “election,” “public office,”
and “measiiii” State laws are expressly preempted in regard to qulation of
Eontributions for federal offices 2 U.S.C. S 453. See McGovern v. American Airlines,
a, 537 S.W.2d 341 (Tex. Civ. App. - Beaumont 1976,it ref’d n.r.e.1.
This office has pointed out that whether a groups must be considered a “political
committee” is a question of fact to be determined in each ease by what are the principal
or major purposes of the organization at the time they engage in the activity in question.
Attorney General Opinion H-189 (1973). We do not believe that the purpose of the host
committee can be considered separately from the purpose of the group on whose behalf
they collect contributions. The crucial issue is thus determined by the purpose of the
conference.
If the purpose of the conference is simply to discuss issues, and there is no intention
to become involved in elections in Texas, then the Act would not be applicable. See
United States v. National Committee For Impeachment, 469 F.2d 1135(2d Cir. 1972). -
In Attorney General Opinion H-252 (l974), this office determined that the Campaign
Reporting and Disclosure Act of 1973 did not apply to contributions by individuals or
corporations to the expenses of the Southern Governors’ Conference. Attorney General
Opinion H-743 (1975) affirmed this conclusion in light of the 1975 amendments to the Act.
This office held in Attorney General Opinion H-486 (1974), that contributions to an
kIaUgUI%l Committee were not subject to chapter 14 of the Election Code.
The facts in those cases were different from those presented by your question. The
Southern Governors’ Conference was described as a voluntary regional association which is
P. 145
Honorable William P. Clements, Jr. - Page Three (Mw-48)
“a creature of the National Governors’ Conference which is in turn organized under the
auspices of the Council of State Governments.” The nature of the organization was
considered significant. The facts presented in connection with the Inaugural Committee
were that contributions were not made in opposition to or on behalf of a nominee,
candidate or measure at a public election, and it was determined that the Inauguration
was not a part of a campaign for public office.
The question of whether the Act applies becomes more difficult when an
organization is expressly associated with a particular political party. We do not believe
that the name alone makes the organization or those soliciting contributions on its behalf
a political committee within the Act. However, groups organized along party lines
ordinarily have some interest in elections.
If a principal or major purpose of the conference is to support or oppose candidates
of a particular party in elections in Texas, or to support or oppose measures which will be
on the ballot in Texas, then we believe those persons soliciting funds for the conference
would be a political committee subject to the Act. In that case contributions to such a
group by corporations or labor organizations would be prohibited under article 14.06 of the
Election Code. See also 2 U.S.C. S 441b; 11 C.F.R. S l14.4 (restrictions on corporations and
labor organizations under Federal Election Campaign Act). However, the fact that a
purpose of an organization is to support or oppose measures would not restrict
contributions by corporations or labor organizations. Attorney General Opinion H-R75
(19781, held that insofar as article 14.06 prohibits corporations or labor organizations from
making contributions and expenditures relating to measures, it is unconstitutional in light
of the Supreme Court’s holding in First National Bank of Boston v. Bellotti, 435 U.S. 765
0978). However, disclosure requirements concerning such contributions or expenditures by
corporations or .&or organiza%ons have not been held to be unconstitutional. See First
--
National Bank of Boston v. Bellotti, m, at 791- 792; Bucklev v. Valeo, 424 U.S. l, at 66
- 67 (1976).
The purpose of the conference and those soliciting funds for it would be controlling
in determining whether the Political Funds Reporting and Disclosure Act would apply.
Unless a principal or major purpose of the conference is to become involved in elections in
Texas, the Act would not apply.
You also ask whether the Lobby Act of 1973 is applicable. The Lobby Act of 1973,
V.T.C.S. article 6252-9c, requires persons to register as lobbyists and report their
contributions if they make certain expenditures and communications “to influence
legislation.” Sec. 3. Your office states that the host committee will not become involved
in activities designed to influence legislation. In Attorney General Opinion H-252 (1974)
this office concluded that contributors to the costs of the Southern Governors’ Conference
did not have to register as lobbyists or report contributions as long as their contributions
were not made to influence legislation. Legislation is defined to mean “a bill, resolution,
amendment, nomination, or other matter pending in either house of the legislature; any
other matter which may be the subject of action by either house, . . . or any matter
pending in or which may be the subject of action by a constitutional convention.” V.T.C.S.
art. 6252-9c, S 2(2). The opinion noted:
Honorable William P. Clements, Jr. - Page Four (Mw-48)
The Lobby Act, as a penal statute, is carefully drafted to reach
only those persons who make contributions or expenditures for
‘communicating directly’ with one or more members of the
Legislative or Executive branches to influence legislation. Section
1 states the policy of the Lobby Act to be the public disclosure of
activities and expenditures made to urge ‘specific actions’ with
respect to legislation.
It concluded that contributions toward the costs of the Southern Governors’ Conference,
when unattended by direct communication for the purpose of influencing legislation, would
not be considered lobbying expenditures for purposes of article 6252-9c, a conclusion
affirmed by Attorney General Opinion H-743 (19751. On the facts presented we believe
the reasoning of Attorney General Opinions H-252 (1974) and H-743 (1975) applies to your
inquiry. Consequently, contributions toward the costs of the Republican Governors’
Conference, when unattended by direct communication for purposes of influencing
legislation, are not lobbying expenditures within article 6252-9~.
SUMMARY
Contributions to defray the expenses of the Republican Governors’
Conference to be held in Texas are not subject to the campaign
reporting provisions of chapter 14 of the Election Code unless a
purpose of the conference is to become involved in elections in
Texas, nor are the persons who make them subject to the Lobby
Act.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by William G Reid
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
p- 147
Honorable William P. Clements, Jr. - Page Five (m-48)
Susan Garrison
Rick Gilpin
Terry Goodman
William G Reid
p. 148