OPINION NUMBER - 010

ADOPTED - 1978/03/09

SUBJECT - Out of state contributions by individuals; Dissolution of candidate committee - transfer of funds; Personal travel exepense; Independent expenditures; Indentification of advertising.

REQUESTED Greg Edken, Kutak, Rock & Huie

QUESTION

1: How and on what form are out-of-state contributions from individuals in excess of $100 to a campaign committee registered in Nebraska to be reported in order to comply with the Nebraska Political Accountability and Disclosure Act? Specifically, is an individual who makes an out-of-state contribution required to submit a form or can that required information be supplied by campaign committee registered in Nebraska?

2. Are there special procedures for reporting the transfer of remaining funds from a candidate's former campaign committee in an earlier election to his present campaign committee?

3. Does the transportation of a candidate in an individual's personal car or aircraft constitute an in-kind contribution and, if so, how is it to be reported in order to comply with the Act?

4. Does the preparation and mailing of correspondence by a individual for a candidate at the individual's own expense constitute an in-kind contribution and, if so, how is it reported in order to comply with the Act?

5. Must there be a disclosure on billboard or other political advertising of the name of the person or committee requesting the same.

Conclusions:

1. Out-of-state contributions from individuals in excess of $100 need be reported only by the receiving campaign committee on a Campaign Statement (NADC Form B-1) in the same manner as other contributions, namely, by setting forth the full name of each person from whom contributions totaling more than $100 are received during the period covered by the report, together with the person's street address, the amount contributed, the date on which each contribution was received, and the accumulative amount contributed by that person for that election.

2. The former campaign committee must be dissolved pursuant to Commission Rule 4, and the transfer of funds from the former committee to a new campaign committee must be disclosed in such Statement of Dissolution by the old committee and as a contribution received in the Campaign Statement of the new committee.

3. If such use of an individual's personal car or aircraft involves payment of costs incurred of less than $250 in a calendar year and if such costs are voluntarily incurred without any understanding or agreement that the costs shall be, directly or indirectly; repaid, then the same is not a contribution of any kind.

4. Such preparation and mailing of correspondence by an individual for a candidate at the individual's own expense constitutes an independent expenditure which must be reported on NADC Form B-6 by such individual only if he makes a payment in excess of $100.

5. Such disclosure on political advertising is no longer required by law.

ANALYSIS

1. Sections 49-1455, 49-1457 and 49-1461 specifically provide that all contributions totaling more than $100 during various periods are to be reported in a committee's campaign statement. Section 49-1456(3) provides that any such campaign statement reporting the receipt of a contribution of more $100 from a committee or person whose treasurer does not reside in, whose principal office is not located in, or whose funds are not kept in this state, shall be accompanied by a certified statement of the contributing committee or person. Section 49-1476 provides that an out-of-state contribution shall not be accepted by a committee unless it is accompanied by such a statement. Both sections specifically state that the statement with respect to such an out-of-state contribution must be certified as true and correct by an officer of the contributing committee or person setting forth the full name and address along with the amount contributed, of each person who contributed more than $100 of the contribution.

The issue presented is whether or not the language "must be certified as true and correct by an officer of the contributing committee or person" applies to an out-of-state individual. It may be inferred from the manner in which such language is used that the requirement applies only to certifications from officers of contributing committees and persons such as a corporation who function through officers or other agents. The definition of person set forth in section 49-1438 does include an individual as well as committees, corporations and other entities. Nevertheless, the language at the beginning of these two statutes (49-1456(3) and 49-1476) refers to a committee or person whose treasurer does not reside in, whose principal office is not located in or whose funds are not kept in this state. This language, along with rational from the case of Buckley v. Valeo, 424 U.S. 1, 74-82 (1976), leads us to conclude that these sections were designed not to impinge upon or interfere or apply to contributions from individuals who do not reside in the state of Nebraska. It is recognized, however, that to impose such a requirement upon such individuals would not be contrary to Buckley v. Valeo.

In other words, we adopt the interpretation that the language in question should be read in the conjunctive to mean that such a statement must be signed by an officer of an out-of-state contributing committee or an officer of another out-of-state entity, other than an individual, which of necessity functions only through its agents and employees, whose treasurer does not reside in, whose principal office is not located in, or whose funds are not kept in the State of Nebraska.

2. Section 49-1449 requires any committee in existence on July 1, 1977, and desiring to remain in existence, to have filed a committee organization statement within 30 days after July 1,1977, and that any committee in existence on July 1, 1977, and not so filing, shall be dissolved. Commission Rule 4, adopted pursuant to the provisions of Section 49-1466, provides that a committee is not dissolved unless and until a dissolution statement is filed showing the disposition of residual funds, which disposition could include a transfer to another candidate committee which has filed a Statement of Organization.

Under these circumstances and in order to transfer such funds, the former campaign committee must file a Statement of Dissolution showing all of its debts paid and the disposition of its residual funds. In turn, the new candidate committee must show the receipt of such transfer as a contribution from the dissolved committee in its campaign statement (NADC Form B-1).

Note that section 49-1479(2) prohibits a candidate committee from making contributions to or an independent expenditure in behalf of another candidate committee. It is only upon dissolution of a candidate committee that funds may be transferred to another candidate committee pursuant to section 49-1466 and Commission Rule 4.

3. Sections 49-1415 and 49-1419 define contributions and expenditures, and it is specifically provided in subdivision (3) of section 49-1415 that a contribution shall not include volunteer personal services provided without compensation, or payments of costs incurred of less than $250 in a calendar year by an individual for personal travel expenses if the costs are voluntarily incurred without any understanding or agreement that the costs shall be, directly or indirectly, repaid. The definition of expenditure as set forth in section 49-1419(2) includes contribution, and when we deal with an independent expenditure of an individual pursuant to section 49-1467, we are dealing with a contribution by that person. If such contributions meets the terms and conditions of subdivision(3) of section 49-1415, such transportation costs, within such limitations, would not have to be reported in that the same are not an in-kind contribution or contribution of any kind for that matter.

4. Pursuant to the provisions of section 49-1467(1), the costs of preparation and mailing of correspondence by an individual for a candidate would have to be reported by that individual only if he paid any one vendor more than $100. As far as the volunteer personal services in connection with such preparation and mailing are concerned the rational set forth in paragraph 3, above, would apply.

5. Section 32-1153 of the Corrupt Practices Act was repealed by the enactment of LB987, Laws 1976. There is no similar provision in the Nebraska Political Accountability and Disclosure Act and no other provision of Nebraska Law requires any similar disclosure of names and addresses of committee officers or individuals requesting or causing such advertising.