New Castle County - Civil Division
The Honorable Thomas J. Cook
State Election Commissioner
32 W. Loockerman Street
Dover, Delaware 19904
Re: Burris-Rochford Education Plan Mailing
Dear Commissioner Cook:
Your letter of October 23, 2000 requests the advice of the Attorney General regarding legal issues implicated in the Republican State Committee's mailing of a brochure entitled the "Burris-Rochford Education Plan." You have apparently been asked for an advisory opinion, pursuant to 15 Del. C. § 8041, on whether the mailing constitutes a "contribution" under 15 Del. C. § 8002(6).(1) In order to respond to that request for an advisory opinion, you have asked for this office's advice regarding three questions:
(1) Do the contribution limits in 15 Del. C. § 8010(b) violate any rights granted to the Republican State Committee under the First Amendment of the United States Constitution;
(2) Does the mailing at issue constitute an "expenditure" by a political committee, subject to the laws of Delaware as defined under 15 Del. C. § 8002(9), in light of relevant case law; and
(3) To the extent that this mailing constitutes an "expenditure" under 15 Del. C.
§ 8002(9), in applicable case law, does it constitute an "independent expenditure" under 15 Del. C. § 8023(b).
Fifteen Del. C. Subchapter II imposes limitations on the amount of contributions that candidates, parties, and persons may make and accept. If the mailing were paid for through a direct contribution to the Burris/Rochford campaigns, it would, of course, be limited according to the provisions of 15 Del. C. §§ 8010- 8012. However, because the mailing was paid for by the Republican State Committee, and not directly by the Burris/Rochford campaigns, the analysis becomes more complex.
Section 8010(b) provides that no political party may make a "contribution" that would cause the total amount of contributions accepted to exceed specified amounts. Fifteen Del. C. § 8002(6) defines a "contribution" as "any advance, deposit, gift, expenditure or transfer, of money or any other thing of value, to or for the benefit of any candidate or political committee involved in an election . . ." (Emphasis added). Therefore, if the mailing was paid for by the Republican State Committee, in order to consider the amount paid as a "contribution" limited by Section 8010(b), it must constitute an "expenditure." An "expenditure" is defined by Section 8002(9) as "any payment made or debt incurred, by or on behalf of a candidate or political committee,(2) or to assist in the election of any candidate or in connection with any election campaign." The analysis of the issue, therefore, must begin with an examination of the second question: does the mailing constitute an "expenditure" under 15 Del. C. § 8002(9)?
The seminal case on campaign finance law is Buckley v. Valeo, 424 U.S. 1 (1976), and any discussion of the law in this area must begin with the broad limitations imposed by Buckley. In Buckley, the United States Supreme Court examined constitutional challenges to several provisions of the Federal Election Campaign Act, including provisions regulating monies contributed by individuals to candidates and campaigns. Buckley distinguished between two types of monies spent: "contributions," which are spent to support a particular candidate in his campaign for office, and "expenditures," which are spent to advocate for a particular point of view. Id. at 47.
Generally, the Court held that contributions to a particular candidate may be strictly regulated. Id. at 19-39. Expenditures, however, contain core political speech and implicate fundamental First Amendment issues; therefore, they may not be subjected to the same level of regulation. Id. at 44-45. This broad generalization of the Court's lengthy opinion, however, is only the beginning of the analysis. The question of whether monies spent are expenditures or contributions turns on two separate inquiries: whether the monies spent were spent in coordination with a candidate and his campaign or independently, and whether the material paid for by the monies constitutes "express advocacy," or "issue advocacy."
I. Express v. Issue Advocacy
The contribution limitations examined in Buckley limited the amount spent by a person "relative to a clearly identified candidate. . . ." Id. at 39. In its examination, the Court first addressed the appellants' challenge that the statute was unconstitutionally vague. The Court noted that because the statute imposed criminal penalties for violations, the provision must be closely examined for specificity. Id. at 40-41. In order to save the provision's constitutionality from the attack for vagueness, the Court interpreted the statute only to regulate "express advocacy," that is, speech which expressly advocates the election or defeat of a candidate with expressed terms such as "vote for", "elect", "defeat." Id. at 41-45; 78-80. All other advocacy, which does not advocate for a particular fate of a candidate, has come to be described as "issue advocacy."
The Supreme Court of Delaware also supports a limited interpretation to preserve a statute's constitutionality. In New Castle County Counsel v. State, Del. Supr., 688 A.2d 888, 891 (1997), the Court held:
We begin our analysis of the affect of the 1996 acts by acknowledging
the presumption of constitutionality which acts of the General Assembly
necessarily enjoy. This presumption not only imposes upon one attacking
the constitutionality of a statute the burden of demonstrating its invalidity
it also requires a measure of self-restraint upon Courts sitting in review
over claims of unconstitutionality. (Citations omitted).
Further, "if there are two reasonable interpretations of a statute, a court should choose the one which saves it against a constitutional attack. New Castle County Council v. State, Del. Super., 698 A.2d 401 (1996), aff'd, Del. Supr., 688 A.2d 888 (1997)(citations omitted).
In examining 15 Del. C. Chapter 80 in light of the standards for specificity set forth in Buckley, it is readily apparent that the definitions of "expenditure" and "contribution" are subject to the same objections the appellants raised to the Federal Election Campaign Act in Buckley. The definition of "expenditure" includes the phrase "in connection with any election campaign," and the definition of "contribution" includes the phrase "involved in an election." 15 Del. C. § 8002. In light of Buckley's admonition that campaign finance acts must be narrowly construed to avoid constitutional vagueness, Section 8002's definitions should be interpreted to apply only to express advocacy.
The mailing at issue is a brochure entitled "The Burris-Rochford Plan. Real Leadership in Education." The brochure outlines the key points in an education plan espoused by John Burris and Dennis Rochford, and exhorts the reader to "Let the legislature know that you support the John Burris and Dennis Rochford plan to make Delaware's schools America's best." The brochure further provides the toll free number to Legislative Council.
In light of the discussion above, your second question, i.e., whether the mailing constitutes an "expenditure," subject to Title 15's limitations on campaign contributions, must be answered in the negative. Because a broader interpretation would call into question the constitutionality of 15 Del. C. Ch. 80, Section 8002's definitions of "expenditure" and "contribution" must be interpreted to apply only to "express advocacy." This mailing does not meet the admittedly strict definition of express advocacy set forth by Buckley. The mailing does not advocate the election or defeat of a particular candidate, and does not exhort the reader to vote for or against a particular candidate; it does not use words such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," or "reject." Buckley, 424 U.S. at 45 n.52.(3) Because the mailing does not constitute express advocacy, it would not be considered an "expenditure" and, therefore, a "contribution," under Section 8002.
II. Independent v. Coordinated Expenditures
The Buckley decision is clear on certain points. First, that contributions to a candidate or his campaign, spent in coordination with the campaign, are subject to regulation. Buckley, 424 U.S. at19-39. Second, that monies spent by an independent individual or organization, and which constitute issue advocacy, are protected by the First Amendment. See also, e.g., Vermont Right To Life Committee v. Sorrell, 221 F.3d 376 (2nd Cir. 2000); Federal Election Commission v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2nd Cir. 1980).
What Buckley leaves unclear, however, is whether materials constituting
issue advocacy by political parties, either coordinated or uncoordinated
with a candidate or his campaign, are protected by the First Amendment,
and are similarly unassailable. Under the heading of "General Principles,"
the Court, when speaking of the Federal Election Campaign Act, stated that:
the Act's contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are intricate to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order "to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people."
Id. at 14 (citations omitted).
The Buckley court upheld contribution limits, as they only minimally impinged on free speech and serve a significant governmental interest of preventing corruption or the appearance of corruption, and struck down expenditure limitations for failure to serve a compelling state interest in preventing corruption. However, the Buckley court seems to have approved the banning of expenditures which could be characterized as contributions. The Court stated:
The parties defending § 608(e)(1) contend that it is necessary to prevent
would-be contributors from avoiding the contribution limitations by the
simple expedient of paying directly for media advertisements or for other
portions of the candidate's campaign activities. They argue that expenditures
controlled by or coordinated with the candidate and his campaign might
well have virtually the same value to the candidate as a contribution and
would pose similar dangers of abuse. Yet such controlled or coordinated
expenditures are treated as contributions rather than expenditures under
the Act. Section 608(b)'s contribution ceilings rather than § 608(e)(1)'s
independent expenditure limitation prevent attempts to circumvent the Act
through prearranged or coordinated expenditures amounting to disguised
Id. at 46-47. The Court then struck down the ceiling on independent expenditures as it "fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression." Id. at 47-48.
The Buckley decision appears to assume that issue advocacy is independent advocacy, that is, advocacy undertaken by an individual other than a group, party or committee coordinated with the candidate. See Id. at 45-46, 79-80. However, that assumption was undercut by the Court in Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996), when the Court expressly stated that an expenditure by a political party should not be automatically assumed to be a coordinated expenditure that may be constitutionally regulated. Id. at 618 ("We do not see how a Constitution that grants to individuals, candidates, and ordinary political committees the right to make unlimited independent expenditures could deny the same right to political parties.") See also Missouri Republican Party v. Lamb, 2000 WL 1277360 (8th Cir. 2000). Colorado Republican Federal Campaign Committee, after a string of remands, has resulted in a petition for certiorari being recently granted by the Supreme Court once again. Colorado Republican Federal Campaign Committee v. Federal Election Commission, 96 F.3d 471 (10th Cir. 1996), on remand, 41 F.Supp.2d 1197 (D. Colo. 1999), aff'd, 213 F.3d 1221 (10th Cir. 2000), cert. granted, 2000 WL1201886 (October 10, 2000).
Independent of the United States Supreme Court's treatment of the matter, the principle that a political party can indeed make an independent expenditure has begun to take root in state case law as well. In Washington State Republican Party v. Washington State Public Disclosure Commission, 4 P.3d 808 (Wash. 2000), the Washington State Supreme Court recently held that the Republican Party's expenditure of funds to purchase an issue-oriented television advertisement was not subject to the state campaign finance law's limitations.
The Court applied a Buckley analysis to reach the conclusion that the television advertisement constituted issue advocacy, and not express advocacy. Despite the fact that the advertisement was paid for by the Washington State Republican Party, the Court found that the expenditure was protected First Amendment speech and was beyond the scope of permissible regulation. Id. at 825-26. ("When a political party makes expenditures for issue advocacy, the threat of corruption posed by direct contributions to candidates is absent. By the same token, use of contributions for issue advocacy does not circumvent constitutional limitations on contributions to candidates.") The United States Supreme Court's recent decision to review the further appeal after remand to the Tenth Circuit Court of Appeals in Federal Election Commission v. Colorado Republican Federal Campaign Committee, 213 F.3d 1221 (10th Cir. 2000), cert. granted (October 10, 2000), may provide additional guidance on the issue of monies spent by a political party on behalf of a candidate. In its decision upon remand, the Tenth Circuit held that the political party expenditure limitations of the Federal Election Campaign Act violated the Colorado Republican Party's rights under the First Amendment. The Supreme Court's decision on the constitutionality of limiting political party expenditures will directly affect a party's ability to engage in express advocacy for its candidates. Additionally, the Supreme Court's decision may speak to a political party's ability to engage in issue advocacy.
In sum, although this is a complex and somewhat unclear area of the law, after review of all the relevant case law, this office believes that the prudent course is to advise you that "issue advocacy," which is core First Amendment speech, is beyond the scope of regulation. Therefore, monies spent on issue advocacy, put forth by a party, a political committee, or an independent organization or individual, are neither "contributions" nor "expenditures" under Section 8002.
It is unfortunate that this issue was not raised in time for it to have
been fully litigated in court, which would have provided a definitive answer
for those whose conduct is being judged by the electorate. The Attorney
General strongly recommends that, after both this election and the United
State Supreme Court's resolution in Federal Election Commission v. Colorado
Republican Federal Campaign Committee, either you or the parties propose
legislative amendments to Chapter 80 that will expressly conform it to
the United States Supreme Court's holdings in Buckley and
Republican Federal Campaign Committee.
Should you have any questions, please do not hesitate to contact us.
Very truly yours,
Malcolm S. Cobin
Assistant State Solicitor
C. Drue Chichi
Deputy Attorney General
Michael J. Rich
2. The Republican State Committee is a "political committee" as defined by 15 Del. C. § 8002(12): "any organization or association whether permanent or created for the purposes of a specific campaign, which accepts contributions or makes expenditures for or against any candidate or candidates, and includes all political parties, political action committees and any candidate committee." (Emphasis added)
3. It is interesting to note that Section 441(d) of the Federal Election Campaign Act was amended after Buckley to include the express advocacy requirement, as was the post-Buckley amendment to Section 434(e). See Federal Election Commission v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45, 52 n.8 (2d Cir. 1980).