Advisory Opinion # 185

SUBJECT:  Campaign Financing / Use of Campaign Funds

REQUESTED BY:  Vicki Powell, Campaign Manager, Johanns for Governor Committee

QUESTIONS PRESENTED:  (1) When may a gubernatorial campaign pay the campaign expenses of a potential lieutenant governor candidate? (2) What expenses pertaining to the lieutenant governor’s campaign can be paid by the governor candidate committee?

CONCLUSIONS:  See analysis.

FACTS:  In 1998 and in prior gubernatorial election years, the candidates for governor and candidates for lieutenant governor ran separate campaigns during the primary election.  Thus, the candidate for governor typically had a candidate committee and the candidate for lieutenant governor had a separate candidate committee.  The candidate for governor receiving the most votes in the primary election for his or her party became the general election gubernatorial candidate.  The candidate for lieutenant governor receiving the most votes in the primary election for his or her party became the general election candidate for lieutenant governor.  In the general election the candidates for governor and lieutenant governor from the same political party ran as a team.  The candidate for governor essentially had no choice as to who would be his or her running mate.

In the 2000 general election, Nebraskans voted to amend the state constitution to provide that a party’s candidate for governor would choose his or her party’s candidate for lieutenant governor.  This constitutional amendment was known as Proposed Amendment #1 and was based upon Laws 1999, LR 14CA.  The 97th Legislature, First Session, passed LB 768 the following year.  The purpose of LB 768 was to implement the provisions of adopted Amendment #1, and to repeal inconsistent statutory provisions.  LB 768 became law on September 1, 2001.

Under these newly-adopted constitutional and statutory provisions, the candidate for governor of each political party who receives the highest number of votes in the primary election selects a running mate for lieutenant governor of the same political party.  [See Article IV, Section 1, Nebraska Constitution]  The candidate for governor makes this selection by filing an affidavit with the Secretary of State.  The governor candidate’s nominee for lieutenant governor must file a written consent with the Secretary of State.  Both the nomination and consent must be filed by September 1 of that election year.  [See Section 32-619.01, Nebraska Revised Statutes]  Therefore, officially and hypothetically, there may be no candidate for lieutenant governor until September 1 of the election year.

ANALYSIS:  Section 32-619.01, R.S.SUPP., 2001, codified pursuant to passage of LB 768 provides:

The candidate for Governor of each political party receiving the highest number of votes in the primary election shall select a candidate for Lieutenant Governor of the same political party by filing an affidavit indicating his or her choice with the Secretary of State.  The candidate for Lieutenant Governor shall file a written consent with the Secretary of State.  Both the affidavit and the written consent shall be filed on or before September 1 for the names to be on the general election ballot.  The written consent shall be in lieu of a candidate filing form, and no filing fees shall be required for the candidate for Lieutenant Governor. 

Section 49-1410 of the Nebraska Political Accountability and Disclosure Act, as amended by LB 768 provides as follows:

A candidate committee shall be presumed to be under the control and direction of the candidate named in the same statement of organization, except that the candidate for Lieutenant Governor shall not have a separate candidate committee but shall be included in the candidate committee with the candidate for Governor of the same political party.

The clear intent and language of LB 768 is to exclude a candidate for lieutenant governor from having his or her own candidate committee, and instead be included in the candidate committee with the candidate for governor of the same political party.  The written consent filed by the lieutenant governor is in lieu of a candidate filing form, and no filing fees are required for the lieutenant governor candidate.  During committee hearing testimony on LB 768, Senator Ed Schrock, principal introducer of the bill, testified that in his opinion, the bill would not preclude someone running for governor announcing his or her choice for lieutenant governor a year in advance of actually being elected.  However, the bill as passed into law makes selection of each party’s candidate for lieutenant governor officially possible no earlier than after selection of each party’s gubernatorial candidate in the primary election, and no later than September 1 prior to the general election.  Thus, a candidate for lieutenant governor is not an official ballot candidate until selection by the candidate for governor, consent by the candidate for lieutenant governor, and filing of the required affidavit and written consent by both candidates with the Secretary of State sometime between the end of the primary election in May, and prior to September 1.

Section 49-1409 of the Act defines a candidate as follows:

(1)         Candidate shall mean an individual:  (a) Who files, or on behalf of whom is filed, a fee, affidavit, nomination papers, or nominating petition for an elective office; (b) whose nomination as a candidate for elective office by a political party caucus, committee or convention is certified to the appropriate filing official; (c) who is an officeholder who is the subject of a recall vote; or (d) 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 bringing about the individual’s nomination or election to an elective office, whether or not the specific 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.  An elected officeholder shall, if eligible under law, be considered to be a candidate for reelection to that same office for the purposes of sections 49-1401 to 49-14,138 only.

Under Section 49-1409(1)(d), a candidate, for purposes of the Accountability and Disclosure Act, includes any person “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 bringing about the individual’s nomination or election to an elective office, whether or not the specific 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.”  This section goes on to state that “An elected officeholder shall, if eligible under law, be considered to be a candidate for reelection to that same office for the purposes of sections 49-1401 to 49-14,138 only.”   However, in the case at hand, the current sitting lieutenant governor was appointed, and not elected to his office.   So although he is deemed to hold elective office by definition under section 49-1417, [ “A person who is appointed to fill a vacancy in a public office which is ordinarily elective holds an elective office.”] he is not currently “an elected officeholder” by definition under section 49-1409(1)(d) to the office of lieutenant governor.

Reading Sections 49-1409 and 49-1410 together in view of the constitutional and statutory changes providing for selection of the lieutenant governor, and taking into consideration the apparent legislative intent to give the governor candidate the choice of choosing his or her running mate as opposed to having that choice foisted upon him or her by the electorate, there appears to be no usurpation of the Accountability and Disclosure Act should a governor candidate announce his or her choice for a lieutenant governor running mate prior to the primary election, albeit unofficially for general election ballot filing purposes.   In so doing, for all intents and purposes, a lieutenant governor candidacy-in-waiting is established within the governor candidate committee, which may actively spend and solicit  campaign funds and contributions in promotion of the nomination and election of the governor candidate, and simultaneously, the lieutenant governor candidate.

Section 49-1446.01 of the Act provides that “No committee, other than a political party committee, may expend or transfer funds except to make an expenditure, as defined in subsection (1), (2) or (3) of section 49-1419 . . .”

Section 49-1419 defines “expenditure” by providing in relevant part: 

(1)   Expenditure shall mean a payment, donation, loan, pledge, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate or the qualification, passage, or defeat of a ballot question . . .

(2)   Expenditure shall include a contribution or a transfer of anything of ascertainable monetary value for purposes of influencing the nomination or election of any candidate or the qualification, passage, or defeat of a ballot question.

The change in the law instigated by passage of LR 14CA and Amendment #1, and implemented in statute by the passage of LB 768, specifically requires that the candidate for lieutenant governor shall not have a separate candidate committee, but shall instead be included in the candidate committee with the candidate for governor of the same political party.  It logically follows that the governor candidate committee can expend funds to assist or influence the nomination or election of either or both the lieutenant governor and governor candidates.  The governor candidate may reasonably be expected to choose a lieutenant governor running mate prior to the outcome of the primary election, and such selection for a running mate may be actively involved in the campaign prior to the primary election.  Therefore, any expenditures made by or on the behalf of a lieutenant governor candidate who is part and parcel a participant of  a governor candidate committee, made in furtherance of the effort to nominate and elect the governor candidate, are legitimate campaign expenditures.

Section 49-1445 of the Act contemplates a candidate committee formed by two or more candidates who campaign as a slate.  The pertinent portion of the statute reads:  “Any two or more candidates who campaign as a slate or team for public office shall form a committee upon raising, receiving, or expending, jointly in any combination, in excess of five thousand dollars in a calendar year, other than the fee for filing for office.”  This statute appears to infer that a candidate committee comprised of two or more candidates running as a slate or team will jointly expend funds which are jointly raised or received. 

As further evidence of the permissibility of tying a campaign for governor and lieutenant governor candidates together prior to a primary election decision, LB 768 also amended the Campaign Finance Limitation Act by tacking the spending limit to qualify for public funds previously prescribed for the lieutenant governor on to the spending limit ceiling for the governor.  To wit, the governor candidate’s spending limit was increased by $150,000 from $1,500,000 to $1,650,000, and the lieutenant governor candidate removed from the statutory list allowing the state treasurer, secretary of state, attorney general and the auditor of public accounts a $150,000 spending limit.  [See Section 32-1604(3) R.S. SUPP., 2001]  Also, the limit on contributions which a governor candidate may accept was increased by nearly the same amount previously prescribed for the office of lieutenant governor.  To wit, the aggregate contribution limit for a candidate for governor was increased by $75,500 from $750,000 to $825,500, and the lieutenant governor candidate removed from the statutory list allowing an aggregate contribution of $75,000 for state treasurer, secretary of state, attorney general, or the auditor of public accounts.   [Section 32-1608 R.S.SUPP., 2001]  Finally, the fund allocation limits for public funds requests for designated elective offices was similarly adjusted in LB 768 by entirely eliminating the lieutenant governor allocation of $50,000, and in turn adding $50,000 to the allocation for governor.  [Section 32-1611 R.S.SUPP.,2001]

In each  instance described above, the spending limits, contribution limits, and  public funds allocation limits apply for the entire election period, which by definition under Section 32-1603(2)(b) means the period beginning July 1 of the calendar year prior to the year of the election in which the candidate is seeking office through the end of the calendar year of such election for the office of Governor.  Thus, the election period includes the primary season, and the spending and contribution limits previously assigned to a separate lieutenant governor candidate committee no longer permitted as a matter of law, were added to the statutory ceilings for the governor candidate committee, of which committee the lieutenant governor candidate is by law now included.

SUMMARY:  (1) A governor candidate committee may pay the expenses of a potential lieutenant governor candidate at any time during the course of the gubernatorial campaign, given the fact that the lieutenant governor candidate is a member of the campaign team, and is both precluded by law from establishing a separate campaign committee, and required by law to be included in the candidate committee with the candidate for governor of the same political party.  The governor candidate selects his or her choice of candidate for lieutenant governor, and there is no preclusion in the law preventing a governor candidate from selecting a potential running mate prior to the outcome of the primary election, and prior to said lieutenant governor candidate becoming an official ballot candidate based on the outcome of the primary election, and the subsequent filing of the affidavit and consent with the Secretary of State some time prior to September 1 of the election year.

(2) Any campaign expense qualifying as an expenditure that assists or influences the nomination or election of either or both the candidate for governor and the candidate for lieutenant governor of a governor candidate committee of the same political party is a legitimate and permissible campaign expenditure.  Campaign funds may be used to pay any non-prohibited, campaign-related expense, including expenses incurred by any campaign officer, staff person, or volunteer, as well as those of the candidate(s) themselves.

ADOPTED as an advisory opinion pursuant to section 49-14,123(10) and Title 4, Chapter 1, Rules and Practice Procedure.  As provided in Section 49-14,123 (10), this Advisory Opinion shall be binding upon the Commission unless amended or revoked, concerning the person or public body who requested the opinion and acted in reliance thereon in good faith unless material facts were omitted or misstated by the person in the request for the opinion.

Dated this ______ day of January, 2002.

NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION

_______________________________

Neil Danberg, Jr., Chairman