OPINION NUMBER - 030

ADOPTED - 1979/05/04

SUBJECT - Ballot Question Committee - Use of unexpended campaign funds and receipts and expenditure of additional funds.

REQUESTED BY: James E. Gordon, Treasurer, Nebraskans for Freedom of Choice

ANALYSIS

Dear Mr. Gordon:

Be advised that in response to your request for advisory opinion by letter dated February 27, 1979, copy of which is attached and made a part hereof, the commission at its regular meeting on March 21, 1979, voted not to adopt a recommended advisory opinion dated March 16, 1979, which would have ruled that the unexpended funds of such ballot question committee could be used to make expenditures for public relations, lobbying and to contribute to the beverage industry recycling program, that such ballot question committee could continue to receive funds and make expenditures for such purposes even though there was no ballot question on file with the Secretary of State, and that if the committee acted as a principal for a lobbyist or a lobbyist for a principal, it would be subject to the lobbying reporting provisions of the Act as well as the reporting provisions applicable to campaign finance.

At the regular meeting of the commission on April 18, 1979, you appeared personally and stated, among other matters, that the committee had not made any expenditures for lobbying and was not going to make expenditures for lobbying, that as of April 18, 1979, the committee had $1,531.56 in unexpended funds, that you believe the committee had not received any additional contributions since December 12, 1978, the closing date of its last campaign statement, (but later indicated this might not be the case), the only expenditures made since December 12, 1978, which were not incurred prior thereto have been to Mrs. Lee Anderson for expenses incurred in connection with travel to encourage recycling, that expenditures since December 12, 1978, have been in excess of $1,000, that the reason for wanting to continue the committee and to receive additional contributions and make additional expenditures is to support the position taken in its advertising campaign against Proposition 301, namely, that Proposition 301 was aimed at the "right problem but was wrong solution" and therefore the committee was in effect obligated to promote "comprehensive" litter legislation, that any lobbying subject to the lobbying provisions of the Nebraska Political Accountability and Disclosure Act was being done by others including members of the committee who were lobbyist in their own right and reporting accordingly, that you have no personal knowledge that the proponents of Proposition 301 are intending to promote Proposition 301 or equivalent provisions as a ballot question but believed that such was a possibility in that you believed similar actions by way of legislation or otherwise had occurred in other states.

The commission at its regular meeting on April 18, 1979, voted not to adopt a draft advisory opinion identified as "Revised April 16, 1979", which took the same position as the recommended advisory opinion dated March 16, 1979, except to require the committee to amend its Statement of Organization in order to receive additional contributions and make expenditures for such purposes, and adopted the following resolutions:

1. That this commission make a finding that by operation of law the Nebraskans for Freedom of Choice is no longer a ballot question committee as defined by statute.

2. That they file the required report due June 1 with a closing date of May 1.

3. That if the committee wants to make a voluntary report, that this report will be placed on file at the commission office and will be available for inspection by the public.

It is submitted that the effect of these resolutions, in view of other advisory opinions, positions taken by the commission, the consensus at the March 21 and April 18, 1979 meetings, and practice, is as follows:

1. Your committee may no longer receive contributions or make expenditures, except for obligations which may have been incurred but unpaid as of December 12, 1978, the post-election closing date (Stoney Opinion).

2. Even though the committee stands terminated, it is not relieved from filing campaign statements otherwise due until it files a Statement of Dissolution (NADC Form A-2). Since expenditures after December 12, 1978, exceeded $1,000, a campaign statement will be due on or before June 1, 1979.

3. The committee is not required to dissolve, but may dissolve at any time upon the filing of NADC Forms A-2 and B-1 if its obligations are paid or are assumed by others (Stoney Opinion). A Statement of Dissolution (NADC Form A-2) may be filed with the campaign statement due June 1, 1979.

4. When a ballot question committee dissolves upon the filing of NADC Form A-2, it may distribute unexpended funds without statutory restriction except for Section 49-1479(1).

5. If the committee reconstitutes itself as an organization for the purpose of receiving funds and making expenditures for the purposes described in your request for advisory opinion, it would not be a political committee subject to the jurisdiction of the campaign finance provisions of the Act, but may voluntarily file disclosures in the nature of campaign statements pursuant to the provisions of Section 49-14,123(4).