OPINION NUMBER - 015

ADOPTED - 1978/06/17

SUBJECT - Ballot Question Committee: when required to be formed; 35 day requirement for filing a ballot question committee campaign statement

REQUESTED BY: Betty J. Steinbrecher

QUESTION 1. Must a ballot question committee be formed and a Statement of Organization (NADC Form A-1) and Campaign Statements (NADC Forms B-1) filed when expenditures advocating the qualification, passage, or defeat of a ballot question have been made by only one person from his own funds, even though others are involved in soliciting petition signatures?

2. When is the starting date for computing the 35 day period for filing a campaign statement by a ballot question committee pursuant to section 49-1461(2)?

CONCLUSION

1. No.

2. The day after a copy of the form of an initiative petition is filed with the Secretary of State prior to the obtaining of petition signatures.

ANALYSIS: 1. At its regular meeting May 17, 1978, the Commission adopted the following directive:

"Expenditures advocating the qualification, passage, or defeat of a ballot question made by only one person from his own funds, do not constitute or require the formation of a ballot question committee, the filing of a Statement of Organization or the filing of campaign statements even though that person may have banded together with others for the purpose of circulating petition. However, if any such expenditure is in an amount of more than $100, then an Independent Expenditure Report (NADC Form B-6) would be required to be filed for each such independent expenditure."

The foregoing directive and in turn the conclusion reached by the Commission for this advisory opinion is based on the provisions of section 49-1413 defining a committee and that "An individual, other than a candidate, shall not constitute a committee."

Further, the words in section 49-1406 defining a ballot question committee to the effect that such a committee "shall mean any committee acting in support of, or in opposition to, the qualifications passage, or defeat of a ballot question . . . ," must of necessity be construed to refer to a committee which financially supports or financially opposes a ballot question for the reason that general support without financial contributions or expenditures is not subject to a readily determined time for the formation of such a committee and the filing of a Statement of Organization. See section 49-1449 and 49-1446(1).

2. With respect to the question of when the 35 day period begins for the filing of a campaign statement by a ballot question committee, the Commission rules that such time begins from the day after a copy of the form of an inititative petition is filed with the Secretary of State prior to the obtaining of petition signatures.

Section 32-703, R.R.S., 1943, specifically requires that exact wording of the measure which is the subject of the ballot question be stated at that time. And, Section 49-1461(2), which is the cause for the difficulty in making this determination of time, provides that a "ballot question committee shall file a campaign statement, of which the closing date shall be the thirtieth day following the filing of the sample of the measure with the Secretary of State, . . ." (emphasis supplied)

The difficulty arises from the references in section 49-1461(2) to the closing date being 30 days after the filing of the sample of the measure with the Secretary of State and the filing date being 35 days "after the sample ballot question is filed for the ballot with the Secretary of State."

In all other sections dealing with closing dates and filing periods, the period of time for filings is either 5 or 7 days after the closing date. And, although section 32-704 refers to

county clerks and election commissioners delivering pages of the petition and their certifications to the Secretary of State as well as the Secretary of State proceeding to place the measure on the general election ballot, in neither case is the ballot question to be filed by anyone for the ballot with the Secretary of State, except at the time prior to soliciting petition signatures.

Section 32-709 does refer to when an initiative petition shall be regularly and legally filed with the Secretary of State, the Secretary of State shall cause a separate ballot with the title, number, etc., to be printed, but this section specifically refers to the filing of the initiative petition as distinguished from "the sample of the measure" or "the sample ballot question," i.e., the initiative petition with the necessary signatures.

The language of section 49-1461(2) goes on to provide for the filing of a Campaign Statement when the ballot question fails to qualify for the ballot. And, even though a similar filing would not be required pursuant to this advisory opinion at the time that a ballot question does qualify, Campaign Statements are nevertheless required 30 days and 15 days prior to the election at which the ballot question is to be voted. Section 49-1461(1).

The initiative petition language for the adoption of the Nebraska Political Accountability and Disclosure Act provided that "A ballot question committee shall file a Campaign Statement, of which the closing date shall be the twenty-eighth day following the qualification of the measure, not later than 35 days after the ballot question is qualified for the ballot. If the ballot question fails to qualify for the ballot, the ballot question committee shall file the Campaign Statement within 35 days after the final deadline for qualifying, the closing date of which shall be the twenty-eighth day following the deadline." The Legislature by using language different than that set forth in the initiative petition for the Nebraska Political Accountability and Disclosure Act obviously intended that the filing date in question not be 35 days after the ballot question qualified for the ballot with sufficient and proper signatures.

In construing these various concepts together it appears to us that the intended meaning was to measure the closing date as well as the filing date from the time the measure is originally filed with the Secretary of State before the obtaining of signature on petitions.

It is noted that there is some duplication of disclosure in connection with such a Campaign Statement because section 32-704 also requires certain disclosures to be filed with the Secretary of State on two occasions similarly measured from the date the sample ballot measure is filed with the Secretary of State. It is further noted that in the event that a ballot question does not qualify for the ballot the foregoing interpretation will necessitate the filing of not only one but two Campaign Statements pursuant to the provisions of section 49-1461(2).