OPINION NUMBER - 178

ADOPTED - 1997/12/19

SUBJECT - Campaign Financing/Solicitation of Campaign Contributions

REQUESTED BY: Greg Vasek, Treasurer, The Breslow Committee

QUESTION: Can a candidate committee solicit and accept contributions via the Internet?

CONCLUSION

Yes.

FACTS

The Breslow Committee is the candidate committee of gubernatorial candidate John Breslow. The committee has established a website. The committee is currently using the website for the purpose of providing information about the candidate. The committee proposes to use this website for the purpose of soliciting and receiving campaign contributions from users of the website.

As proposed, a user of the website who wants to make a contribution could request to fillout the online donor form. In order for the contribution to be made, the website user would need to supply the following information on the online donor form:

1. Name (First, Last)

2. Address

3. City

4. State

5. Zip Code

6. Home Phone

7. Work Phone

8. Occupation

9. Employer

10. Credit Card Type (Visa, Master Card, etc.)

11. Credit Card Number

12. Card Expiration Date

13. Amount of Contribution

14. Date of Contribution

15. Name of Bank as it appears on the card

The information provided would be securely delivered to the Breslow Committee where it would be kept on record. A searchable file of donors and donor records would be maintained.

ANALYSIS

Section 49-1415(l) of the Nebraska Political Accountability and Disclosure Act (NPADA) defines the term "contribution" as follows:

Contribution shall mean a payment, gift, subscription, assessment, expenditure, contract, payment for services, dues, advance, forbearance, loan, donation, pledge or promise of money or anything of ascertainable monetary value to a person, made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question. An offer or tender of a contribution is not a contribution if expressly and unconditionally rejected or returned.

The NPADA is silent as to the way in which candidate committees may solicit and receive contributions. The NPADA does require committees and their treasurers to disclose certain information on campaign statements and to maintain records to substantiate that information. Thus, the essential issue when evaluating any solicitation method is whether the method permits the committee to meet the applicable reporting and record keeping requirements of the NPADA.

Sections 49-1455(4) and (5) of the NPADA require a committee to report the full name and address of each individual or person from whom the committee has received more than one hundred dollars during the reporting period, the amount of each contribution, the date of each contribution and the cumulative amount contributed by the individual or person for the election period.

When the contributor is a committee, 49-1455(6) of the NPADA requires the recipient committee to disclose on campaign statements the full name of the treasurer of the contributing committee.

In reviewing the online form described above, it appears that the only required information which is not secured is the name of the treasurer when the contributor is a committee. A committee receiving contributions via the Internet must insure that the process results in the acquisition of all reportable information. One way to accomplish this would be to add a line on the online donor form which states "Name of Treasurer (if contributor is a committee)".

We also note that a portion of the online form appears to call for the name of an individual. The committee may wish to take steps to insure that an entity making a contribution understands that it is the name of the entity which must be listed, not the name of the person who is completing the online form. For example, line #1 of the online donor form could be modified to state "Name of Contributor (organization name or first, last of individual)".

Section 49-1447 of the NPADA requires the treasurer of a committee to "keep detailed accounts, records, bills and receipts necessary to substantiate the information contained in a statement or report . . ." required by the NPADA. The same section requires the treasurer to record the name and address of each person from whom a contribution is received. It appears that the process proposed by the committee would allow the committee's treasurer to maintain the required records.

Section 49-1471 of the NPADA provides that "contributions and expenditures of more than fifty dollars, other than an in-kind contribution and expenditure, shall be made by written instrument containing the names of the payor and the payee." Neither the NPADA nor the Nebraska Statutes in general include a definition of the term "written instrument." A variety of sources such as court decisions, legal dictionaries and standard dictionaries describe the term in a variety of ways. However, the element common to most definitions is that a written instrument is something which is not oral or spoken which is intended to constitute evidence of an act, including an act to convey or transfer something of value. Thus, a deed conveying an interest in land is a written instrument. Checks and money orders are written instruments. We take the position that the online donor form described above is a written instrument in that it is evidence of an act to transfer something of value; i.e., the amount of the contribution. In reaching this conclusion, we consider the following factors:

a. The name of the payor is part of the online donor form.

b. The form is intended to transfer a specific amount from the payor to a payee.

C. The online donor form is specific as to the line of credit which is being drawn upon to make the contribution. That is, the donor is supplying the credit card number. This is evidence of intent to make an immediate donation as distinguished from an expression of intent to make a donation of an unspecified amount on some future unspecified date.

While the online form is a written instrument, as described it does not conform with the provisions of 49-1471 because it does not include the name of the payee. This deficiency is easily remedied by including the name of the recipient committee somewhere on the form. For example, the wording on line #13 could be changed from "Amount of Contribution" to "Amount of Contribution to the Breslow Committee".

Further discussion is required.

Section 49-1474.01 (1) of the NPADA requires committees which produce printed material relating to a candidate or ballot question to include a disclaimer containing the name and street address of the committee on the material. It is the position of the Commission that a candidate committee's website is material which requires the inclusion of a disclaimer even if there is no solicitation of campaign contributions.

SUMMARY

A candidate committee may solicit and receive campaign contributions via the Internet provided the process used by the committee permits it to secure the information it needs to fulfill its record keeping and reporting requirements under the Nebraska Political Accountability and Disclosure Act. Websites established by candidate committees must comply with the disclaimer law for printed materials.