OPINION NUMBER - 021

ADOPTED - 1978/09/12

SUBJECT - The requirement that an elective officeholder be considered to be a candidate for reelection to that same office: obligation to form a candidate committee when the office sought is different from the office held.

REQUESTED BY: David A. Ludtke, Legal Counsel, Whelan for Governor

QUESTION: Must an incumbent, eligible for reelection, form a candidate committee and file a Statement of Organization upon raising, receiving or spending more than $400 prior to his filing for nomination and election to a different office when the funds raised and received were specifically for his campaign for nomination and election to the different office?

CONCLUSION

So long as an incumbent is an announced candidate for another office and funds received are identifiable as being for the purpose of influencing or attempting to influence the action of the voters for the nomination or election of the candidate to the different office, there is no obligation to form a candidate committee and file a Statement of Organization to receive such funds even though such funds may exceed $400 under the provision that treats an elected officeholder as a candidate for reelection to that same office.

FACTS

The incumbent in question is currently the Lt. Governor and is eligible for reelection to the office of Lt. Governor. Prior to filing for the office of Governor on February 16, 1978, he had announced as early as November 18, 1977, that he intended to be a candidate for Governor rather than reelection as Lt. Governor. He formed a candidate committee for Governor on January 10, 1978, and it filed its Statement of Organization with the commission on January 18, 1978.

Prior to his filing for office of Governor he received campaign contributions in excess of $400 all of which were by checks designating the payee as "Whelan for Governor" or "Whelan for Governor Committee." Only $55 of such contributions were not specified as being specifically for his campaign for Governor.

ANALYSIS

Section 49-1409 R.S. Supp., 1976, defines a candidate as one who files for an elective office. It goes on to provide that "An elected officeholder shall, if eligible under law, be considered to be a candidate for reelection for that same office for the purpose of (the Act) . . ."

Section 49-1445 provides "A person who is a candidate for more than one office shall form a candidate committee for the office for which the person is a candidate upon raising, receiving or expending in excess of $400 for the campaign for that office."

The initiative petition for the adoption of the "Sunshine Act" contained an additional definition of candidate which included an individual "who receives a contribution, makes an expenditure, or gives consent for another person to receive a contribution or make an expenditure with a view to bring about the individual's nomination or election to an elective office, whether or not the specified elective office for which the individual will seek nomination or election is known at the time the contribution is received or the expenditure is made; . . ."

Since the language of the initiative petition was not adopted as part of the Nebraska Political Accountability and Disclosure Act, a gap exists with respect to persons who announce themselves for political office but have yet to actually file for that office. There is no restriction or limitation to such persons receiving political contributions during that time without a candidate committee being formed and a Statement of Organization being filed in that the person according to the language adopted is yet to be a filed candidate.

The language of section 49-1445 provides that one does not have to form a candidate committee nor file a Statement of Organization until he has raised, received or spent over $400 after becoming a candidate, namely after filing for office.

The facts are clear in this situation that the funds being contributed to Whelan were for his candidacy for Governor (except for $55) and not for his reelection as Lt. Governor. Therefore, it does not make sense to require the formation of a candidate committee as Lt. Governor, particularly when a non incumbent could be raising the same funds and not be required to have any kind of committee.

We acknowledge that officeholders without announcement one way or the other as to whether they were seeking reelection or a new office or who received campaign contributions without the same being designated for any particular office would fall under the category of having to form a campaign committee upon their raising, receiving or spending over $400, if such committee did not already exist. That is not the case here, and therefore the Commission hereby determines that the rule for this request for advisory opinion should be as set forth in the conclusion, above.

The provisions of section 49-1445 to the effect that a person who is a candidate for more than one office shall form a candidate committee for the office for which the person is a candidate upon raising, receiving or spending in excess of $400 for the campaign for that office (Emphasis Supplied) would bear out and support this determination.

It is clear, nevertheless, that if an officeholder is eligible for re-election to the same office and he receives contributions of more than $400 without having announced his candidacy for another office and without such contributions being ear-marked for such other office, the provisions defining him as a candidate for reelection to that same office would require him to form a candidate committee and file a Statement of Organization even though he has yet to file for re-election.