## THE AITORNEY GENERAL
OF TEXAS

The Honorable Mark White Secretary **of** State State Capitol Au&in, Tax&% **78711**
The Honorable M. L. Brockette Commissioner Texas EducationAgency 201 East 11th Street AuBtin, Texas 10701 Opinion No. n-664

Re: Whether article 14.03a, ElectionCode, imposing campaignspending limits on candidatesfor public office, ia unconstitutionalin liaht of the United States-Supreme **Court decieion**  in Buckley
v. Valeo, 96 S. Ct. 612 Tzsnr

**Dear Sire:** 
SecretaryWhite has requeetedour opinion regardingthe conetitutionality

of article 14.038 of the ElectionCode in the light of the United States Supreme Court's recent decision iii

Buckleyv. Valeo, 96 S. Ct. 612 (1976). Article 14.03a proviaerr:

(a) Subject to Subsection (c) of this section,no candidate in an election for **a statewide**  **office** 

## of the **otate** government may make campaign expenditure8in excess of the applicable limit, as follows: (1) in a general primary election, 10 cents multipliedby the votingage populationof the state; (2) in a runoff pr@tary election, 4 cents multipliedby-the *votingage population**of** the state; (3) in a-generalelection, 10 cents multipliedby the voting-agepopulation of'the state.

:.

.

**p. 3641** The RonorableMark White

The XonorableM. L. Brockette - page 2 (H-864)

(d) For the purpose of calculatingthe spending limits of this section and except aa otherwiseprovided in Subsection (f),any amount spent by a candidate,his campaign treasurer,or assistantcampaign treasurer,or any amount spent on behalf of a candidateby a political committeeor politicalaction committee which is supportingthe candidate,is deemed to have been spent by the candidate. For the purposes of this section,a contribution which a politicalcommitteemakes to a candidate is **not** an expenditureon behalf **of** the candidate.
(e) The cempaign treasurerof a political committeeor politicalaction commmitteewhich is supportinga candidate may not make expenditures on behalf of the candidate in excess **of** a limit fixed by the candidateor his campaign treasurer in a signed statementfurnishedto the campaign treasurerof the political committeeor politicalaction committeebefore he incurs any such expenditure. The candidate
or his campaign treasurer may change the limit at any time before the election if the expenditures incurredby the committeeet the time of the change do not exceed the limit previously set for the committee. On each statementthat
a candidate files under Section 244 of this code, &a emended, the candidateshall list the expenditure limit that he or his campaigntreasurerhas set for each politicalcommitteesupportinghim with respect to the election to which the atatement relates. **Where a**  **political committee**  makes en expenditureon behalf of more then one candidate, the entire amount is charged to each candidate'sexpenditurelimit.

**(f)** Expendituresmade by en executive committee 0f.a politicalparty or by lny other political committeeon behalf of the nominees **of** a politicalparty in l general electionwithout identifyingindividual cendidateaere not chargeableto the expenditure limits of the individual candidates. **p. 3642** The Honortile **Hark** White

**The** Honorable **H.** L. **Brockette -**  **page** 3 W-864

(g)All civil and crlminelpenalties at&ted in this chapter for making en unlawful c&aIp&ign

expenditureepply to expenditures which ere in excess of the mount permitted **by** this **section. A**  candidate is liable for expenditures au& by him, his campaign treasurer,orl

aaiatantcuopaign treesurer, in excess of the differencebetween the candidate'sexpenditurelimit for the election and the aggregateof the limits that the oandidete or his campaign treasurer**has** fixed for politicalc=itteea that are supporting him in the election. The campaigntreasurer of a politicalcommittee is liable **for** expendi**tures** in **excess of**  **the** limit that **the cendfdete**  or his campaign treesurerhas fixed for the comittee in the election.
Comiaaioner Brocketteasks the same questionwith **respect** to **section** 11.22(d),Tex&a EducationCode, which provides

8
The total amount authorizedto be expend&d furthering or **opposing** tha candidmy of eny **person** for membershipon the State Board **of Education**  **shall not**  exceed **81,500.**

**while** In Buckley, the Supremecourt held, inter &lie, that, aertain campaign spending limitations were permissible, section 608(c) of the Federal ElectionCampaign**Act** of 1971
was an invalid infringement upon the right **of free**  expression t$it;taed by the First Ampiment to the United States ConatiSeation 606(c), **lzke** section (a)of article 14.03a end a§ion (d) of section 11.22, placedmandatory.limitationa on over&l1 cempaignexpenditures by a candidate. The **Supreme** Court dealaredr

**No governmant&l**  interest thht has been **auggeatad** is sufficient to justify the **raatriation** on the quantity **of** political expression **imposed** by 608k)‘ a campaign **expenditur*** limitations. at652. l **upra Buckley,** 

8ince the First Amendment is Rppliceble**to the**  **atetaa through**  the Pourtemth Amendment, it is clear thet the campaign expenditurelimitetiona **of** article 14.03a**of** the Election **Code** and l aotion 11.22(d)**of** the EduoationCode constitute,by

p. 3643., . -

The Honorable

The Honorable Mark White

H. L. Brockette - page 4 (H-864)

virtue of the Buckley decision , an impermiaaible burden upon the right of **free** expression and **are,** therefore, unconstitutional. Palko v. Connecticut, 302 U.S. 319, 326-27 (1937); Fiske v. -- Kansas, 2'14

U.S. 380 (1927); Citizens **for** Jobs and Ener Fairolitical Practices Comm‘iaaion, lr:xRptr. - -Td%k ~:4~~~:i;~~~~titution&lity **of** 1975 PA

Another significant proviaion of article 14.03a is section (e), which prohibits e political committee supporting
a candidate from making any expenditure "on behalf of the candidate in excess **of** a limit fixed by the candidate or his campaign treasurer in a signed statement e
. . ." The obvious purpose of this provision is to permit the candidate to coordinate his expenditures for purposes **of** the campaign expenditure limitationa of section (a). Since section (a) is invalid, it may be doubted whether section (e) continues to serve any purpose or whether any candidate would, at present, choose to avail himself of its proviaiona. Nevertheleaa, it must be examined as an independent prohibition to determine whether it remains viable under Buckley.

The Supreme Court in Buckley held unconstitutional section 608(e)(l) of the Federal Election Campaign Act, which mandated a limit of $1,000 per year **on** the expenditures which any person may make "relative to a clearly identified candidate." The Court was careful to diatinguiah section 608(e) (1)'s prohibition from the statute's limitation of campaign contributions, which it approved. The proscription of section 608(e) (1) was ~held to encompass only those "costs incurred without the request or consent of the candidate or his agent." Buckley, aupra at 640 n. 53. Such a ceiling on coats incurred, the court reasoned, "fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, [and] it heavily burdens
core First Amendment expression." Buckley '.=F at 6480 As a result, it too was found to be unconatitut on&l.

The expenditures which section (e) of article 14.03~1 permits a candidate to inhibit would normally be "coats incurred without the request or consentof the candidateor his agent." As a result, it is our opinion that the expenditure limitation of section (e) imposes an unconstitutional burden upon free expression and is thus void under the First Xunendment

.
p. 3644The Honorable Mark White

The Honorable M. L. Brockette - page 5 (H-864)

. SUMMARY
Article 14.03a, Texas Election Cocle, and section 11.22(d), Texas Education Code,
are unconstitutional in the light of the United States Supreme Court's decision in Buckley & , 96 S. Ct. 612 (1976).

Very truly yours,

APPROVED:

Opinion Committee jwb

p. 3645