July 18, 2006
Opinion No. 2006-13
James P. Rankin
Foulston Siefkin LLP
666 S. Kansas Ave., Suite 101
Topeka, Kansas 66603-3423
Dear Mr. Rankin:
This opinion is in response to your letter dated July 7, 2006,
in which you request an opinion from the Kansas Governmental Ethics
Commission concerning the Campaign Finance Act (K.S.A. 25-4142
et seq.). We note at the outset that the Commission’s
jurisdiction concerning your questions is limited to the
application of K.S.A. 25-4142 et seq., and whether some
other statutory system, common law theory or agency rule or
regulation applies to your inquiry is not covered by this
opinion.
FACTUAL STATEMENT:
We understand that you are asking for this opinion in your
capacity as legal counsel for the Chamber of Commerce of the United
States of America (Chamber). You explain that the Chamber is a
not-for-profit trade association made up of members that are
business corporations of all sizes and from all sectors of the
economy. You state that one of the Chamber’s functions is to
advance the interests of its members by educating the general
public on issues the Chamber deems important.
You state that the “Chamber intends to communicate with
members of the Kansas general public through mass media
communications that may refer to clearly-identified candidates for
state office, but will not expressly advocate their election or
defeat.” You also indicate that the Chamber will not
coordinate its efforts in planning, producing and distributing
these communications with any of the candidates identified in the
communications or with their opponents.
QUESTIONS:
1. Are the proposed communications described above permissible
if paid for by the Chamber?
2. Do the disclosure requirements for independent expenditures
which expressly advocate the election or defeat of a clearly
identified candidate apply to the Chamber’s proposed
communications described above?
3. Do the registration and reporting obligations for political
committees apply to the Chamber as a result of its proposed
communications described above?
OPINION:
In response to your first question, we find nothing in the
Campaign Finance Act (Act) that would prohibit the Chamber from
making and paying for the communications that you have
described.
Turning to your second question, the disclosure requirement for
independent expenditures is found at K.S.A. 25-4150, and states in
pertinent part as follows:
“Every
person, other than a candidate or a candidate committee, party
committee or political committee, who makes contributions or
expenditures other than by contribution to a candidate or a
candidate committee, party committee or political committee, in an
aggregate amount of $100 or more within a calendar year shall make
statements containing the information required by K.S.A. 25-4148
and amendments thereto. . . .”
This requirement for disclosure applies only if contributions or
expenditures, as defined in the Act, are made by the Chamber.
“Contribution” is defined in K.S.A. 2005 Supp.
25-4143(e)(1) as follows:
“‘Contribution’ means:
(A) Any advance,
conveyance, deposit, distribution, gift, loan or payment of money
or any other thing of value given to a candidate, candidate
committee, party committee or political committee for the express
purpose of nominating, electing or defeating a clearly identified
candidate for a state or local office.
(B) Any advance,
conveyance, deposit, distribution, gift, loan or payment of money
or any other thing of value made to expressly advocate the
nomination, election or defeat of a clearly identified candidate
for a state or local office;
(C) a transfer
of funds between any two or more candidate committees, party
committees or political committees;
(D) the payment
by any person other than a candidate, candidate committee, party
committee or political committee, of compensation to an individual
for the personal services rendered without charge to or for a
candidate’s campaign or to or for any such committee;
(E) the purchase
of tickets or admissions to, or advertisements in journals or
programs for, testimonial events;
(F) a mailing of
materials designed to expressly advocate the nomination, election
or defeat, of a clearly identified candidate, which is made and
paid for by a party committee with the consent of such
candidate.” (Emphasis added.)
“Expenditure” is defined in K.S.A. 2005 Supp.
25-4143(g)(1) as follows:
“‘Expenditure’ means:
(A) Any
purchase, payment, distribution, loan, advance, deposit or gift of
money or any other thing of value made by a candidate, candidate
committee, partycommittee or political committee for the express
purpose of nominating, electing or defeating a clearly identified
candidate for a state or local office.
(B) Any
purchase, payment, distribution, loan, advance, deposit or gift of
money or any other thing of value made to expressly advocate the
nomination, election or defeat of a clearly identified candidate
for a state or local office;
(C) any contract
to make an expenditure;
(D) a transfer
of funds between any two or more candidate committees, party
committees or political committees;
(E) payment of a
candidate’s filing fees.” (Emphasis added.)
In order to fall under the definition of
“contribution” or “expenditure” under the
Act, the Chamber’s communications would have to expressly
advocate the nomination, election or defeat of a clearly identified
candidate. K.S.A. 2005 Supp. 25-4143(h) defines “expressly
advocate the nomination, election or defeat of a clearly identified
candidate” as follows:
“‘Expressly advocate the nomination, election or defeat
of a clearly identified candidate’ means any communication
which uses phrases including, but not limited to:
(1)
‘Vote for the secretary of state’;
(2)
‘re-elect your senator’;
(3)
‘support the democratic nominee’;
(4)
‘cast your ballot for the republican challenger for
governor’;
(5)
‘Smith for senate’;
(6)
‘Bob Jones in “98"’;
(7)
‘vote against Old Hickory’;
(8)
‘defeat’ accompanied by a picture of one or more
candidates; or
(9)
‘Smith’s the one.’”
While the Chamber’s proposed communications may refer to
clearly identified candidates, you have stated that those
communications will not expressly advocate the nomination, election
or defeat of any candidate. Therefore, the costs of those
communications would not be reportable under the independent
expenditures reporting requirements because they would not
constitute either a contribution or expenditure as those terms are
defined in the Act.
Your third question is whether the registration and reporting
obligations for political committees apply to the Chamber as a
result of its proposed communications. “Political
committee” is defined in K.S.A. 2005 Supp. 25-4143(k)(1) as
follows:
“‘Political committee’ means any combination of
two or more individuals or any person other than an individual,
a major purpose of which
is to expressly advocate the nomination, election or defeat of a
clearly identified candidate for state or local office or
make contributions to or
expenditures for the nomination, election or defeat of a
clearly identified candidate for state or local office.”
(Emphasis added.)
Although you have indicated that advancing the interests of its
members by educating the public on issues of importance to the
Chamber is one of the Chamber’s functions, you have further
stated that the Chamber’s communications would not expressly
advocate the nomination, election or defeat of a clearly identified
candidate. If that is the case, those communications will not
involve the making of contributions or expenditures under the Act.
If, therefore, expressly advocating or making contributions or
expenditures for the nomination, election or defeat of a clearly
identified candidate is not a major purpose of the Chamber, the
Chamber will not be making a “contribution” or
“expenditure” under the Act. If such is the case, the
Chamber is not a “political committee” under the Act
and would not be required to register or report as a political
committee.
In conclusion, we find nothing in the Campaign Finance Act to
prohibit the Chamber’s proposed communications, or to require
disclosure of the costs of those communications so long as they do
not expressly advocate the nomination, election or defeat of a
clearly identified candidate.
Sincerely,
Sabrina K. Standifer, Chairwoman
by Direction of the Commission
SKS:DV:dlw
