Untitled Texas Attorney General Opinion

THE AITORNEY GENERAL OF TEXAS The Honorable Mark White Opinion No. n-664 Secretary of State State Capitol Re: Whether article Au&in, Tax&% 78711 14.03a, Election Code, imposing campaign spending The Honorable M. L. Brockette limits on candidates for Commissioner public office, ia uncon- Texas Education Agency stitutional in liaht of 201 East 11th Street the United States-Supreme AuBtin, Texas 10701 Court decieion in Buckley v. Valeo, 96 S. Ct. 612 Tzsnr Dear Sire: Secretary White has requeeted our opinion regarding the conetitutionalityof article 14.038 of the Election Code in the light of the United States Supreme Court's recent decision iiiBuckley v. Valeo, 96 S. Ct. 612 (1976). Article 14.03a proviaerr: (a) Subject to Subsection (c) of this section, no candidate in an election for a statewide office of the otate government may make campaign expenditure8 in excess of the applicable limit, as follows: (1) in a general primary election, 10 cents multiplied by the voting- age population of the state; (2) in a runoff pr@tary election, 4 cents multiplied by-the *voting- age population of the state; (3) in a-general election, 10 cents multiplied by the voting-age popula- tion of'the state. :. . p. 3641 The Ronorable Mark White The Xonorable M. L. Brockette - page 2 (H-864) (d) For the purpose of calculatingthe spending limits of this section and except aa otherwise provided in Subsection (f), any amount spent by a candidate,his campaign treasurer, or assistant campaign treasurer, or any amount spent on behalf of a candidate by a political committee or political action com- mittee which is supportingthe candidate, is deemed to have been spent by the candidate. For the purposes of this section, a contribu- tion which a political committeemakes to a candidate is not an expenditureon behalf of the candidate. (e) The cempaign treasurerof a political committee or political action commmitteewhich is supporting a candidatemay not make expendi- tures on behalf of the candidate in excess of a limit fixed by the candidateor his campaign treasurer in a signed statement furnished to the campaign treasurerof the political committee or political action committee before he incurs any such expenditure. The candidate or his campaign treasurermay change the limit at any time before the election if the expendi- tures incurred by the committee et the time of the change do not exceed the limit previously set for the committee. On each statement that a candidate files under Section 244 of this code, &a emended, the candidate shall list the expen- diture limit that he or his campaign treasurer has set for each political committee supportinghim with respect to the election to which the atate- ment relates. Where a political committee makes en expenditure on behalf of more then one candidate, the entire amount is charged to each candidate's expenditurelimit. (f) Expendituresmade by en executive committee 0f.a political party or by lny other political committeeon behalf of the nominees of a political party in l general election without identifyingindividual cendidatea ere not chargeable to the expenditure limits of the individual candidates. p. 3642 The Honortile Hark White The Honorable H. L. Brockette - page 3 W-864 (g) All civil and crlminel penalties at&ted in this chapter for making en unlawful c&aIp&ignexpenditureepply to expenditures which ere in excess of the mount permitted by this section. A candidate is liable for expenditures au& by him, his campaign treasurer, o r laaiatant cuopaign treesurer, in excess of the difference between the candidate's expenditurelimit for the election and the aggregate of the limits that the oandidete or his campaign treasurerhas fixed for political c=itteea that are supporting him in the election. The campaign treasurer of a political committee is liable for expendi- tures in excess of the limit that the cendfdete or his campaign treesurer has fixed for the comittee in the election. Comiaaioner Brockette asks the same question with respect to section 11.22(d), Tex&a Education Code, which provides8 The total amount authorized to be expend&d furthering or opposing tha candidmy of eny person for membership on the State Board of Education shall not exceed 81,500. In Buckley, the Supreme court held, inter &lie, that, while aertain campaign spending limitationswere permissible, section 608(c) of the Federal Election Campaign Act of 1971 was an invalid infringementupon the right of free expression t$it;taed by the First Ampiment to the United States Conati- Seation 606(c), lzke section (a) of article 14.03a end a§ion (d) of section 11.22, placed mandatory.limita- tiona on over&l1 cempaign expendituresby a candidate. The Supreme Court dealaredr No governmant&l interest thht has been auggeatad is sufficient to justify the raatriation on the quantity of political expression imposed by 608k)‘a campaign expenditur* limitations. Buckley, lupra a t652. 8ince the First Amendment is Rppliceble to the atetaa through the Pourtemth Amendment, it is clear thet the campaign expenditure limitetionaof article 14.03a of the Election Code and laotion 11.22(d) of the Eduoation Code constitute,by p. 3643 ., . - The Honorable Mark White The Honorable H. L. Brockette - page 4 (H-864) virtue of the Buckley decision , an impermiaaible burden upon the right of free expression and are, therefore, unconstitutional. Palko -- v. Connecticut, 302 U.S. 319, 326-27 (1937); Fiske v. Kansas, 2'14U.S. 380 (1927); Citizens for Jobs and Ener Fairolitical Practices Comm‘iaaion,lr:xRptr. - -Td%k ~:4~~~:i;~~~~titution&lity of 1975 PA Another significant proviaion of article 14.03a is section (e), which prohibits e political committee supporting a candidate from making any expenditure "on behalf of the candidate in excess of a limit fixed by the candidate or his campaign treasurer in a signed statement e . . ." The obvious purpose of this provision is to permit the candidate to coordi- nate his expenditures for purposes of the campaign expenditure limitationa of section (a). Since section (a) is invalid, it may be doubted whether section (e) continues to serve any purpose or whether any candidate would, at present, choose to avail himself of its proviaiona. Nevertheleaa, it must be examined as an independent prohibition to determine whether it remains viable under Buckley. The Supreme Court in Buckley held unconstitutional section 608(e)(l) of the Federal Election Campaign Act, which mandated a limit of $1,000 per year on the expenditures which any person may make "relative to a clearly identified candidate." The Court was careful to diatinguiah section 608(e) (1)'s prohibi- tion from the statute's limitation of campaign contributions, which it approved. The proscription of section 608(e)(1) was ~held to encompass only those "costs incurred without the request or consent of the candidate or his agent." Buckley, aupra at 640 n. 53. Such a ceiling on coats incurred, the court reasoned, "fails to serve any substantial govern- mental interest in stemming the reality or appearance of corruption in the electoral process, [and] it heavily burdens core First Amendment expression." Buckley '.=F on&l. As a result, it too was found to be unconatitut at 6480 The expenditures which section (e) of article 14.03~1 permits a candidate to inhibit would normally be "coats incurred without the request or consent of the candidate or his agent." As a result, it is our opinion that the expen- diture limitation of section (e) imposes an unconstitutional burden upon free expression and is thus void under the First Xunendment . p. 3644 The Honorable Mark White The Honorable M. L. Brockette - page 5 (H-864) . SUMMARY Article 14.03a, Texas Election Cocle,and section 11.22(d), Texas Education Code, are unconstitutional in the light of the United States Supreme Court's decision in Buckley & , 96 S. Ct. 612 (1976). Very truly yours, APPROVED: Opinion Committee jwb p. 3645