Walker, 060419 SCAGO, AGO 3149
| Case Date | June 04, 2019 |
| Court | South Carolina |
[a]s you may know, in South Carolina Citizens for Life. Inc. v. Krawcheck, 759 F.Supp.2d 708 (D.S.C. 2010), the Act's definition of "committee". . . was declared unconstitutionally overbroad due to its impact on groups engaged primarily in issue advocacy. Citing North Carolina Right to Life. Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008), the court held that the Act's filing and reporting requirements would only be permissible when applied to organizations whose major purpose is the election or opposition of a candidate for elective office.
Following these decisions, the Commission suspended enforcement of a multitude of statutes related to "committees," including, but not limited to, S.C. Code Ann. § 8-13-1308, which requires certain disclosure reports to be filed with the Commission. Similarly, out of an abundance of caution, the Commission suspended enforcement of § 8-13-1308 with regard to political parties' campaign accounts. As indicated by the attached 2015 memorandum, the Commission continued to enforce § 8-13-1308 with regard to political parties' operating accounts. . . . However, given that "political party" is separately defined within the Act and is specifically referenced in § 8-13-1308(G),. . . the Commission now seeks guidance as to whether Krawcheck in fact limits the Commission's ability to enforce the Act's disclosure and filing requirements of political parties' operating and campaign accounts.
Therefore, the Commission's question is as follows: Does Krawcheck limit the Commission's ability to enforce the S.C. Code Ann. § 8-13-1308 with regard to a political party, as that term is defined in the Act?(emphasis added). You further note that "the Act distinguishes, and the Commission has recognized, differences between contributions to a political party's campaign account and " donations to a political party's operating account." (citing SECAO 92-240). In the referenced opinion of the State Ethics Commission, it was concluded that "transfers of funds from a national party committee to a State party are not subject to the restrictions contained in Section 8-13-1322(A). Subsection (A) of § 8-13-1322 provides that "(A) A person may not contribute to a committee and a committee may not accept from a person contributions aggregating more than three thousand five hundred dollars in a calendar year" pursuant to § 8-13-1300(6) a "committee" includes a "party committee." Your question is difficult with no clear answer, particularly in light of Krawcheck and N.C. Right to Life v. Leake, 535 F.3d 274 (4th Cir. 2008). While disclosure "statutes connected to the nomination or election of a candidate for public office" are "almost without exception upheld," statutes which encompass issue advocacy are far more constitutionally problematical. Malloy, "A New Transparency: How To Ensure Disclosure From 'Mixed-Purpose' Groups After Citizens United," 45 U.S.F.L.Rev. 428, 440 (2011). Here, a political party, although generally thought of as an entity which supports the nomination ore election of its candidates, does much more. A party also engages in issue advocacy. Thus, the answer to your question is unclear. Accordingly, we believe it is best to err on the side of caution, by continuing the Commission's present policy of non-enforcement of § 8-13-1308, and await clarification by the General Assembly. Law/Analysis Your question involves provisions contained in the "Ethics, Government Accountability and Campaign Reform Act" of 1991 ("the Act"), codified at S.C. Code Ann. § 8-13-100 et seq. As our Supreme Court has advised, "[t]he Ethics Act is a comprehensive statutory scheme for regulating the behavior of elected officials, public employees, lobbyists, and other individuals who present for public service." Ex Parte Harrell v. Attorney General of State, 409 S.C. 60, 64, 760 S.E.2d 808, 810 (2014). Section 8-13-1308(G) of the Act provides as follows:
[notwithstanding any other reporting requirements in this chapter, a political party. legislative caucus committee, and a party committee must file a certified campaign report upon the receipt of anything of value which totals in the aggregate five hundred dollars or more. For purposes of this section, "anything of value" includes contributions received which may be used for the payment of operation expenses of a political party, legislative caucus committee or a party committee. A political party also must comply with the reporting requirements of subsections (E), (C) and (F) of Section 8-13-1308 in the same manner as a candidate or committee.(emphasis added). In particular, Subsection (F) requires a detailed campaign report, including the "name and address of each person making a contribution of more than one hundred dollars and the amount and date of receipt of each contribution.. . ." [§ 8-13-1308(F)(2)]. Section 8-13-1300(26) of the Act defines a "political party" as an "association, a committee, or an organization which nominates a candidate whose name appears on the election ballot as the candidate of that association, committee, or organization." Typically, any statute enacted by the General Assembly is entitled to a strong presumption of constitutionality. As we have consistently advised,
. . . legislation passed by the General Assembly is presumed constitutional. Horry County School Dist. v. Horry County, 346 S.C. 621, 631, 552 S.E.2d 737, 742 (2001) ("All statutes are presumed constitutional and will, if possible, be construed so as to render them valid."). A legislative enactment will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates a provision of the Constitution." Joytime Distrib. & Amusement Co, Inc. v. State, 338 S.C. 634, 640, 528 S.E.2d 647, 650 (1999). Moreover, "[w]hile this Office may comment upon potential constitutional problems, it is solely within the province of the courts of this State to declare an act unconstitutional." Op. S.C. Att'y Gen., August 19, 1997.Notwithstanding this presumption of validity ordinarily afforded to legislation, we note that many courts do not afford the presumption of constitutionality if First Amendment rights are arguably infringed. As one court has observed, "[t]he general presumption of constitutionality accorded legislation is inapplicable where the law infringes on the exercise of First Amendment rights, and the burden of establishing the law's constitutionality is upon the government." Schultz v. City of Cumberland. 536 N.W.2d 192, 194 (Wise. App. 1995). Op. S.C. Att'y Gen., 2007 WL 4284626 (November 27, 2007). Moreover, while this Office has concluded that the Ethics Commission possesses no authority to determine the constitutionality of a statute, see Op. S.C. Att'y Gen., 2010 WL 3896168 (September 3, 2010), we have also steadfastly adhered to the requirement that the Commission possesses the sole jurisdiction to enforce the Act administratively. As we previously advised, "[t]his Office has consistently recognized the Commission's exclusive jurisdiction regarding any resolution of questions involving interpretation and administrative enforcement of the State Ethics Act." Op. S.C. Att'y Gen., 2013 WL 6924890 (December 23, 2013). Thus, while we may advise as to the constitutional implications of a provision of the Ethics Act, the decision to enforce or not enforce any provision lies with the Commission. As we have advised previously:
[generally, a public officer may not decline to enforce laws found on the statute books until the courts have declared such enactments unconstitutional . . . [citations omitted]. However, a governmental officer who takes an oath to uphold the United States Constitution may act on the ruling of the Attorney General as to the doubtful constitutionality of a particular statute if the courts have not acted. . . . This is consistent with the federal case law that would permit a governmental official to be held personally liable in a suit for money...
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