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