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 Education Agency 

201 East 11th Street 

AuBtin, Texas 10701 

Opinion No. n-664 

Re: Whether article 

14.03a, Election Code, 

imposing campaign spending 

limits on candidates for 

public office, ia unconstitutional in liaht of 

the United States-Supreme 

Court decieion in Buckley 

v. Valeo, 96 S. Ct. 612 

Tzsnr 

Dear Sire: 

Secretary White has requeeted our opinion regarding the 

conetitutionality of article 14.038 of the Election Code in 

the light of the United States Supreme Court's recent 

decision iii Buckley v. 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 expenditure8 in excess 

of the applicable limit, as follows: 

(1) in a general primary election, 

10 cents multiplied by the votingage population of the state; 

(2) in a runoff pr@tary election, 

4 cents multiplied by-the *votingage population of the state; 

(3) in a-general election, 10 cents 

multiplied by the voting-age population of'the state. 

:. . 

p. 3641 
The Ronorable Mark White 

The Xonorable M. L. Brockette - page 2 (H-864) 

(d) For the purpose of calculating the 

spending limits of this section and except aa 

otherwise provided in Subsection (f), any 

amount spent by a candidate, his campaign 

treasurer, or assistant campaign treasurer, or 

any amount spent on behalf of a candidate by a 

political committee or political action committee which is supporting the candidate, is 

deemed to have been spent by the candidate. 

For the purposes of this section, a contribution which a political committee makes to a 

candidate is not an expenditure on behalf of 

the candidate. 

(e) The cempaign treasurer of a political 

committee or political action commmittee which 

is supporting a candidate may not make expenditures on behalf of the candidate in excess of a 

limit fixed by the candidate or his campaign 

treasurer in a signed statement furnished to 

the campaign treasurer of the political 

committee or political action committee before 

he incurs any such expenditure. The candidate 

or his campaign treasurer may change the limit 

at any time before the election if the expenditures incurred by the committee et the time of 

the change do not exceed the limit previously 

set for the committee. On each statement that 

a candidate files under Section 244 of this code, 

&a emended, the candidate shall list the expenditure limit that he or his campaign treasurer has 

set for each political committee supporting him 

with respect to the election to which the atatement relates. Where a political committee 

makes en expenditure on behalf of more then 

one candidate, the entire amount is charged to 

each candidate's expenditure limit. 

(f) Expenditures made by en executive 

committee 0f.a political party or by l ny 

other political committee on behalf of the 

nominees of a political party in l general 

election without identifying individual 

cendidatea ere not chargeable to 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 crlminel penalties 

at&ted in this chapter for making en unlawful 

c&aIp&ign expenditure epply 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, or l aaiatant cuopaign treesurer, 

in excess of the difference between the 

candidate's expenditure limit for the election 

and the aggregate of the limits that the 

oandidete or his campaign treasurer has fixed 

for political c=itteea that are supporting 

him in the election. The campaign treasurer 

of a political committee is liable for expenditures in excess of the limit that the cendfdete 

or his campaign treesurer has fixed for the 

comittee in the election. 

Comiaaioner Brockette asks the same question with 

respect to section 11.22(d), Tex&a Education Code, which 

provides 8 

The total amount authorized to be expend&d 

furthering or opposing tha candidmy of 

eny person for membership on the State 

Board of Education shall not exceed 81,500. 

while 

In Buckley, the Supreme court held, inter &lie, that, 

aertain campaign spending limitations were permissible, 

section 608(c) of the Federal Election Campaign 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, placed mandatory.limitationa on over&l1 cempaign expenditures 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. 

a t 652. 

Buckley, l upra 

8ince the First Amendment is Rppliceble to the atetaa through 

the Pourtemth Amendment, it is clear thet the campaign 

expenditure limitetiona of article 14.03a of the Election Code 

and l aotion 11.22(d) of the Eduoation Code 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 

As a result, it too was found to be unconatitut '.=F on&l. at 6480 

The expenditures which section (e) of article 14.03~1 

permits a candidate to inhibit would normally be "coats 

incurred without the request or consent of the candidate or 

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. 3644 
The 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