Untitled Texas Attorney General Opinion

December 31, 1973 The Honorable A. R. Schwartz c Opinion No. H- 189 Chairman Jurisprudence Committee Re: Construction of “political Texas State Senate committee” as used in Austin, Texas H. B. 4, 63rd Leg., The Campaign Reporting and Dear Senator Schwartz: Disclosure Act of 1973 The 63rd Legislature adopted the Campaign Reporting and Disclosure Act of 1973 (Acts 1973, 63rd Leg, ch. 423, p. 1101) amending various articles of Chapter Fourteen of the Texas Election Code. One of the principal changes was to make many provisions of the Chapter, theretofore applicable only to candidates, now applicable to “political committees. ” Article 14.01 of the Code, as amended, defines apolitical committee as “any group of persons formed to collect contributions or make expenditures in support for or in opposition to a candidate or measure to be on a ballot in a public election. ” Your letter, written on behalf of the Senate Jurisprudence Committee, states: “Various corporations, employee groups and professional associations have in the past formed political action arms separate and distinct from their basic organizations. In some instances these political action committesshave been established to advance specific purposes common to all of their members, while in other cases the PAC was formed simply to encourage greater participation in the political process by its membership. In every instance these p. 880 The Honorable A.R. Schwartz, page 2 W-189) political action groups are continuing organizations which generally support multiple candidates in any given elections and sometimes support multiple candidates in the same race. Some of the PACs were in existence long before the passage of House Bill No. 4 in 1973, the Texas Campaign Reporting and Disclosure Act of 1973; others were formed shortly before the passage of the act and still others may be formed in the future. None of these political action committees were formed for the purpose of supporting or defeating any particular candidate or measure, and in most instances the committee was formed prior to the time any person had become a candidate as that term’is defined in the 1973 Act. “I am attaching a copy of the letter I sent as chairman of the Senate Jurisprudence Committee to members of the committee, explaining briefly why the Act fails to indicate clearty whether political action committees are included within the scope of the definition of a ‘political committee. ’ In addition, the letter to the committee indicates that if PACs are included within the definition of a political committee, such inclusion raises still further questions which ought to be answered. “Therefore, I ask you on behalf of the Senate Jurispru- dence Committee to consider the following questions: “1. Is a political action committee such as described above a ‘political committee’ for the purposes of the Texas Campaign Reporting and Disclosure Act of 1973? “2. If a political action committee is alpolitical committee’ for the purposes of the Act, may funds legally bc contributed t’o it by its Members or sponsoring organi- zation for payment of its own operating expenses? p. 881 The Honorable A. R. Schwartz, page 3 W-189) “3. If a political action committee is a ‘political committee’ for the purposes of the Act, are contributions made to such political action committee by its members and others legal political contributions under the ActTrii . In determining the scope to be accorded “political committee” it is our obligation to “look diligently for the intention of the Legislature. ” Article IO, Vernon’s Texas Civil Statutes. The Code Construction Act (Article 5429b-2, V. T. C. S.) instructs us that, in this search, (a) “Words and phrases shall be read in context and construed according to the rules of grammar and COMMOn Usage. . . . ” [ 5 2. ot] (b) ” . . . [I]t is presumed that “(I) compliance with the constitutions of this state and the United States is intended; “(2) the entire statute is intended to be effective; “(3) a just and reasonable result is intended; “(4) a result feasible of execution is intended; and “(5) public interest is favored over any private interest. ” [§ 3.011 (c) “In construing a statute, whether or not the statute is considered ambiguous on its face, a court May consider among other matters the “(I) object sought to be attained; “(2) circumstances under which the statute was enacted: p. 882 The Honorable A. R. Schwartz, page 4 (H-189) “(3) legislative history; “(4) common law or former statutory provisions, including laws upon the same or similar subjects; . “(5) consequences of a particular construction;’ “(6) administrative construction of the statute; and “(7) title, preamble, and emergency provision. ” [§ 3.031 Article 14.02 ,of the Election Code, prior to the 1973 amendments, per- mitted the appointment of a campaign manager by a candidate for election to a state or local office. As amended, the Article now requires designation of a campaign manager by candidates for election to such an office or in an election involving a statewide measure. This requirement is made to apply with equal force to poiitical committees, as well. Article 14.03 lists specific permissible expenditures tohemade bycandi- dates and their campaign managers. The 1973 Act adds political committees to the coverage of the Article and adds one permissible type of expenditure. Article 14.04 specifies three types of contributions which may be made by persons other than corporations and labor unions, and requires that all other campaign expenditures must be made by a candidate, campaign manager, or campaign manager of a political committee. Amended Articles 14.05 and 14.06 provide civil and criminal remedies, respectively, for illegal contributions or expenditures, but Make no mention of political committees. Article 14.07, as amended, makes it illegal for a corporation to give anything of value to any candidate, campaign manager or political committee or any other person for certain political purposes. p. 883 The Honorable A. Ii. Schwartz, page 5 (H-189) Article 14. OH, paragraphs (a) and (b), requiring the keeping of records and the filing of statements, as amended, applies to political coMMittces. Paragraph (c) of Article 14.08, spells out what must be contained in a report by a candidate separately from what must be contained in a report by a political committee. The statement of a committee shall list all con- tributions received and expenditures made by the committee; If . . . . . . Each statement shall also include the dates and amounts of all expenditures, loans made, or debts incurred; the full names and complete addresses of all persons to whom any expenditures, or loans made of more than Ten Dollars ($10) was made or debt of More than Ten Dollars ($10) is owed; and the purpose of such expenditures, loans, and debts. ‘I Paragraph (d) of Article 14.08 now reads: “(d) Each political committee receiving contributions or making expenditures on behalf of a candidate shall notify the candidate as to the name and address of the political committee and its campaign manager. The can- didate shall include within each statement required by this code a list identifying the name and address of each such political committee and campaign manager. ” Other paragraphs of Article 14.08 set out the times when statements must be filed, and set the penalties for failing to file. The definition of “political committee” found in the original version of House Bill 4 as it was introduced in the Legislature, spoke in terms of a “combination, ” the”primary or incidental purpose of which” was to support “any” candidate or measure. In the House committee both “candidate” and “measu,re” were made plural. (The language was substantially changed in the confrrencc coInrnitlcc and these words were again made singular.) p. 884 The Honorable A.R. Schwartz, page 6 (H-189) It is readily apparent that “political committee, ” as used in the context of Chapter 14 of the Election Code, may have several different meanings. It might mean a committee formed specifically to support one candidate or one measure to be the subject of an election. This would no=lude the so-cxd political action committees which have continuity and which may devote most or a large part of their resources to the support of an idea or issue and, coin- cidentally support those candidates who deal favorably with the issue. Other political action committees may be organized on broader grounds, as for exam- ple, to serve as the political arm of a professional or business association. Such a committee may be interested in many ideas and may support many can- didates. Subsidiary questions include: Is a group “formed to collect contributions” a political committee when that is only one of several of its purposes? Does the requirement that it be formed to make contributims in support for or opposition to “a candidate or measure” mean only one? Does a committee cease to be a “political” one within the Act, merely because it distributes its largess to many candidates? The Secretary of State, charged by Subdivision 1 of Article 1.03, Vernon’s Texas Election Code,with responsibility for the uniform application, operation and interpretation of the election laws, has issued his general directive under the Campaign Reporting and Disclosure Act of 1973. After quoting the statutory definition of “political committee ” from the Act, his directive says: “Entities which are formed to collect contributions or make expenditures in support for or in opposition to candidates or measures to be on ballots are ‘political committees’. The fact that the identity and/or number of such candidates or measures has not been determined at the time of the formation of any said committees does not exclude it from the definition of ‘political committee’ and coverage by the applicable requirements. ” WC have been favor& with a great deal of assistance from various seg- mcnts of the community intcrcsted in this question, much of it favoring a limited construction. p. 885 The Honorable A. R. Schwartz, page 7 (H-189) Those uryingarestricted view suggest the following grounds: (a) A voluntary fund for political purposes “is a group of contributors, and not a committee which ‘collects contributions’ or ‘makes expenditures’ for a real political committee or a candidat’e.” (b) Had the Legislature intended that the coverage of the act include political action groups it should have done so in clear language. (c) A political action committee is not formed for the limited purpose of supporting or opposing 2 candidate or measure, but is instead formed to advance common views of certain persons who voluntarily donate funds which may be used to support numerous candidates and public measures or which may be used to encourage greater voter participation. (d) The Language of section 3 of House Bill 4 (amending Article 14.32) indicates that a political committee “in any such election” indicates reference to an election involving but one candidate. (e) The Act requires political committees to designate campaign mana- gers. Since a political action committee does not “manage” an election, it is illogical to require it to have a campaign manager. (f) If it were required to appoint a campaign manager, the Act apparently would require a political action committee to appoint one for each candidate it supported, even if it supported two men in the same race. (g) The requirement that no contribution be received until after appoint- ment of a campaign manager, if applied to a continuing political action commit- tee, would prevent it from receiving funds, for example, for operating expenses. (h) Since the Act is a penal statuteit must be strictly construed. There is, at least, a substantial question as to whether political action committees were intended to bc included within the definition of “political committee” and, thcre- fOrI?, they should lx* c’x‘:ludcd. p. 886 The Honorable A. R. Schwartz, page 8 (H-189) (i) If the Act encompasses political action committees in the definition of “political committee” it is an unconstitutional infringement upon First Amendment rights. (j) Section 8 of House Bill 4 (Article 14. 07 of the Election Code) pro- hibits loans to candidates or committees by corporations except that a corporation legally engaged in the business of lending money may make a loan to a candidate, but not to a committee. Therefore, if the broad inter- pretation is given to “political committee, ” the Act would violate both State and Federal Constitutions. (k) The listing in the Act of campaign expenditures which a candidate or political committee may make does not include contributions to candidates, thus indicating that the Legislature did not intend inclusion of political action committees in the definition of a “political committee. ” (1) The expenditures authorized by the Act do not cover legitimate and necessary “on-going” expenditures and indicate an intent that political action committees not be covered. (m) The Act does not provide for the reporting of contributions by political committeesto candidates, indicating an intent that political action committees not be covered. (n) Inclusion of political action committees would impose on. them unreasonable filing and reporting burdens. Countering these arguments are the following by those who advocate a broad interpretation: (I) The statutory definition of “political committee” refers to “any group of persons” and indicates an intent that the definition be all inclusive. (2) ,Thc Act, considering its caption and provisions found throughout, was intended to “insure that all contributions and expenditures for political purposes arc regulated, controlled and identified. ” p. 887 . The Honorable A. 17. Schwartz, page 9 (H-189) (3) Amended Article 14.08 of the Code, having to do with the statements to be filed, recognizes that political committees may have continuing existence.. See, particularly, subsections (h) (4) (ii) and (h) (5). (4) Historically, the Legislature has recognized and regulated the political activities of entities other than the candidate or his campaign manager. See, Article 211, Vernon’s Texas Penal Code, repealed 1963; and Article 14. 10, Election Code as amended in 1967. (5) The enactment of House Bill 4 was made necessary, in large part, by the development of the political committee as a means of avoiding disclosure of campaign contributions by individuals. All of these arguments, pro and con, have been helpful. We will discuss themlater in this opinion. Our attention has been called to the Federal Election Campaign Act of 1971, 2 U.S. C. $ 431, et seq., which defines “political committee” as “any committee, association, or organization which accepts contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000.” [2 U.S. C. 9431(d)]. This statutory definition has been construed in only one reported discussion so far as we have been able to discover. In United States v. ~The National Corllmit- tee for Impeachment, 469 E 2d 1135 (2d Cir. 1972), the Committee ran a newspaper advertisement calling for impeachment of the President. The United States sued under the federal act and the Committee was temporarily enjoined from accepting contributions or disbursing funds until it first filed the statements and reports required of political committees. The Court of Appeals reversed, holding th;l t. publication of the advertisement alone did not make the Committee a politic= committee and warning that any other holding would raise serious constilutional questions. In deciding that the words “made for the purpose of influencing, ” usorl 1~1 the statutory