AGO 97038.

• Court: Nebraska

Nebraska Attorney General Opinions 1997. AGO 97038. DATE: August 4, 1997SUBJECT: Amendment to the Campaign Finance Limitation Act REQUESTED BY: Frank J. Daley, Jr., Acting Executive Director Nebraska Accountability and Disclosure CommissionWRITTEN BY: Don Stenberg, Attorney General Dale A. Comer, Assistant Attorney General You have requested an Attorney General's Opinion concerning § 14 of LB 420, which was passed during the 1997 legislative session and which amends the Campaign Finance Limitation Act (CFLA) found at Neb. Rev. Stat. §§ 32-1601 through 32-1611. Your specific concern is whether this recent amendment may abridge the freedom of speech in violation of the First Amendment and be found unconstitutional. In the event we conclude that § 14 is unconstitutional, you also ask whether that section is severable from the remainder of LB 420. As set out in your request, the purpose of the CFLA is to reduce spending in campaigns for certain offices by encouraging candidates to abide by voluntary spending limits. As an inducement, candidates who agree to abide by the spending limits are potentially eligible to receive public funds for use in their campaigns. In Op. Att'y Gen. No. 92120 we previously determined that the Act was not unconstitutional in relation to the questions which you raised at that time. The recent amendment imposes new obligations on those persons who make independent expenditures. Section 14 of LB 420 provides that a person who intends to make independent expenditures of $2,000 or more during an election period, for or against a candidate seeking a covered elective office, must file a statement of intent to expend with the Nebraska Accountability and Disclosure Commission. That statement of intent must be filed no later than 45 days prior to the date of the election and must include certain information including the name of the candidate for which the independent expenditure is intended to be made and the maximum amount of independent expenditures the person intends to spend in support of or in opposition to that candidate. Section 14(2) further provides as follows: No person who has filed a statement of intent to expend shall make independent expenditures exceeding twenty percent more than the amount stated in subdivision (1)(e) of this section or less than twenty percent less than such amount. No person shall make independent expenditures for a covered elective office without filing a statement of intent to expend under this section. Section 14 then allows a candidate to withdraw an affidavit of intent to abide by the spending limitations if independent expenditures are made in opposition to that candidate or on behalf of another candidate for the same office and if the candidate has not received public funds under the CFLA. You state in your request that a candidate who has pledged to abide by the spending limits was previously without the ability to respond to independent expenditures because the pledge to abide by the voluntary spending limits was irrevocable. The definition of "independent expenditure" found at Neb. Rev. Stat. § 49-1428 has also been amended at § 16 of LB 420 as follows: Independent expenditure shall mean an expenditure as defined in section 49-1419 by a person if the expenditure is not made at the direction of, under the control of, or with the cooperation of another person and if the expenditure is not a contribution to a committee. In Buckley v. Valeo, 96 S.Ct. 612 (1976), the United States Supreme Court addressed the potential infringement on First Amendment rights caused by requirements of the Federal Election Campaign Act of 1971 concerning contributions and expenditures. The Court concluded that the ceiling on independent expenditures, and certain other restrictions on campaign expenditures in the Act, imposed direct and substantial restraints on the quantity of political speech and the ability of candidates, groups, and citizens to engage in protected political expression, and were therefore violative of the First Amendment. Id. at...