ADVISORY OPINION #196
Subject: Campaign Finance/Major Out-of-State Contributors
Requested By: Diane Schachterle, Director of Policy Planning, American Civil Rights Coalition
Question Presented: Does donor information need to be disclosed by a major out-of-state contributor on its reports?
Conclusion: Yes. See Analysis.
Facts: The American Civil Rights Coalition (ACRC) is a non-profit 501 (c)(4) corporation. It states that a Nebraska ballot question committee has requested a donation from ACRC for use in an initiative petition drive in Nebraska. ACRC recognizes that in the event that it makes contributions in Nebraska of more than $10,000 in a calendar year, it is considered a major out-of-state contributor. It would then be required to file one or more Out-of-State Contribution Reports (NADC Form B-9). ACRC wants to know if any Out-of-State Contribution Report it files must include information about those giving money to ACRC.
ACRC states that it maintains a number of special projects. Contributors do not earmark the amounts given to ACRC for any specific use or campaign. The main purpose of ACRC is to change laws in states in accordance with its view of the 1964 Civil Rights Act.
It is ACRC's position that donations that it receives do not meet the definition of “contribution” and therefore information about these donors is not reportable on an Out-of-State Contribution Report.
Analysis: Section 49-1433.01 of the Nebraska Political Accountability and Disclosure Act (NPADA) defines the term major out-of-state contributor as follows:
Major out-of-state contributor means a corporation, union, industry association, trade association, or professional association which is not organized under the laws of the State of Nebraska and which makes contributions or expenditures totaling more than ten thousand dollars in any calendar year in connection with one or more elections.
Section 49-1479.02(1) of the NPADA generally provides that a major out-of-state contributor shall file reports with the Commission beginning ten days after the end of the calendar month in which the entity becomes a major out-of-state contributor by reason of exceeding the $10,000 threshold. For the remainder of the calendar year, the major out-of-state contributor is required to file a report within ten days after any month in which it makes any contribution or expenditure.
Section 49-1479.02(2) of the NPADA provides for the content of a major out-of-state contributor report. It requires a major out-of-state contributor report to include:
The term “contribution” is defined by §49-1415 which provides:
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. (Emphasis added)
The term “ballot question” is defined in §49-1405 which provides:
Ballot question shall mean any question which is submitted or which is intended to be submitted to a popular vote at an election , including, but not limited to, a question submitted or intended to be submitted by way of initiative, referendum, recall, judicial retention, or bond issue or as a result of legislative action or action of a government body, whether or not it qualifies for the ballot. (Emphasis added)
The term “election” is defined in §49-1416 which provides:
Election shall mean a primary, general, special, or other election held in this state or a convention or caucus of a political party held in this state to nominate a candidate. Election shall include a vote on a ballot question. (Emphasis added)
Reading the foregoing provisions together, a contribution is something of value given for the purpose of supporting or opposing the qualification, passage or defeat of a ballot question submitted or intended to be submitted to the electorate at an election held in this state.
The original version of the NPADA was passed in 1976 and took effect in 1977. It included a provision for the disclosure of an earmarked contribution. An earmarked contribution is a contribution directed to a recipient through an agent or intermediary. The original earmarked contribution statute and its successors have always provided for the disclosure of the actual source of the contribution to the recipient. Beginning in 1987 there was an additional requirement that an intermediary or agent file a report of an earmarked contribution with the Commission.
The major out-of-state contributor reporting law was passed in 1997. At the time there was an earmarked contribution law in effect. As a matter of standard statutory construction, a legislative body when enacting a new law is presumed to be cognizant of existing law on the same subject matter. See Sutherland Stat Const §45.12 (5 th Ed). Clearly, the major out-of-state contributor law was not intended by the Nebraska Legislature to duplicate the earmarked contribution law.
State Senator Ron Withem sponsored LB 591 in 1997. LB 591 included his proposed major out-of-state contributor provisions. At the committee hearing on LB 591 he stated:
Last year, we had a measure, 409 and 410, that were placed on the ballot via initiative petition. Contributions in the six figure area came to the local committee promoting that issue from a major-out-state contributor and that major out-of-state contributor is a political action committee of its own called U.S. Term Limits. But there was no way for us to know who in fact contributed to U.S. Term Limits. This would be U.S. Term Limits and any other committee that contributed more than ten thousand dollars to a Nebraska ballot issue, would require that they would disclose who they are receiving their money from.
The provisions of LB 591 were amended into the provisions of LB 49 which passed in 1997.
We note ACRC's statement that it does not accept earmarked contributions, but instead refers the person offering to make an earmarked contribution to the appropriate committee.
Correspondence with ACRC indicates that the Nebraska ballot question committee which would receive the donation was formed by Marc Schneiderjans. We note that Mr. Schneiderjans is the treasurer of a ballot question committee known as the Nebraska Civil Rights Initiative.
ACRC's stated and well publicized purpose is to amend the law in as many states as possible so as to require conformity with its view of the 1964 Civil Rights Act. It has successfully done so in the State of California in 2003 and in the State of Michigan in 2007. It has expressed its intent to do the same in 2008 in the States of Arizona, Colorado, Missouri, Oklahoma, and Nebraska. It appears that committees have formed in each of these states for that purpose. The committees are named the Arizona Civil Rights Initiative, the Colorado Civil Rights Initiative, the Missouri Civil Rights Initiative, the Oklahoma Civil Rights Initiative and the Nebraska Civil Rights Initiative. This is not a situation in which ACRC may, in passing, make an isolated contribution to a Nebraska ballot question committee. The qualification and passage of this ballot question in this and other states is part of its overall strategy to achieve the purpose for which it was formed.
Under these circumstances it would be difficult to fathom that those giving money to ACRC would not understand that their money would be used to support the qualification and passage of ballot questions, including a Nebraska ballot question. Consequently, money given to ACRC constitutes a contribution. To the extent that ACRC receives a contribution of more than $200, it must, in accordance with §49-1479.02 disclose the contribution on its Out-of-State Contribution Reports.
Summary: Donations to American Civil Rights Coalition are contributions. Contributions to American Civil Rights Coalition of more than $200 must be disclosed on its Out-of-State Contribution Reports.
ADOPTED as an advisory opinion pursuant to Section 49-14,123(10) and Title 4, Chapter 1, Rules of Practice and 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 March 2008.
NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION
________________________________Andre Barry, Chairman