North Carolina Administrative Code › Title 08 - ELECTIONS › Chapter 14 - WRITTEN OPINIONS › Opinion 2004-10-01 - WRITTEN OPINIONS

Current through Register Vol. 39, No. 2, July 15, 2024
STATE BOARD OF
						  ELECTIONS
6400 Mail Service Center
.
Raleigh, NC 27699-6400
GARY O. BARTLETT
Mailing Address
Director
PO Box 27255
October 1, 2004
Raleigh, NC 27611-7255
(919)733-7173
Fax (919)733-0135
Mr. J. David James
Smith, James, Rowlett & Cohen, L.L.P.
Post Office Box 990
Greensboro, North Carolina 27402-0990
Re: Request for Advisory Opinion pursuant to N.C. Gen. Stat.
				§
								163-278.23 on Questions Related
				to the Scope of Articles 22E and 22F of Chapter 163 of the N.C. General
				Statutes
Dear Mr. James:
You have requested on behalf of Teamsters Local 391 and the
				political committee "Carolina Drive" a written opinion pursuant to N.C. Gen.
				Stat. §
								163-278.23 on the scope of
				certain statutory requirements of Articles 22E and/or 22F of Chapter 163 of the
				North Carolina General Statutes.
You ask several questions with respect to the permissible
				source of funds for electioneering communications and the reporting of any
				funds spent on electioneering communications. First, you ask whether "only new
				funds raised and maintained in separate and segregate accounts, comprising only
				funds directly contributed by individuals" may be used for "the purchase or
				provision of electioneering communications pursuant to Articles 22E and 22F."
				With limited exceptions, only an "individual, committee, association, or any
				other organization or group of individuals" may make disbursements for
				electioneering communications. The source of the funds used for the
				disbursements must be individuals and the entity making the disbursement must
				be able to clearly document that all funds originated from individuals.
If an entity has maintained an account that has only funds
				originating from individuals, those funds do not have to be "new" in the sense
				that they have been raised since the passage of Article 22E and 22F. General
				Statutes 163-278.81 and -278.91 recognize in subdivision (b)(5) that
				disbursements for electioneering communications may originate from a
				"segregated bank account that consists of funds contributed solely by
				individuals directly to that account for electioneering communications." In
				addition, a corporation exempt from taxation under section 501(c)(4) of the
				Internal Revenue Code of 1986 or a political organization defined by section
				527(e)(1) of the Code may make expenditures for communications paid for
				exclusively from funds provided by individuals and maintained in a segregated
				bank account without their being deemed "electioneering
				communications."G.S.
				163-278.82(a) &
				-278.92(a). But not all disbursements for electioneering communications have to
				originate from segregated funds. Subdivisions (b)(6) of
				G.S.
				163-278.82(a) and -278.92(a)
				contemplate that there may be disbursements from funds other than segregated
				bank accounts, presumably by entities meeting all the criteria set forth in
				G.S.
				163-278.19(f). Thus, when
				Articles 22 E and F are read as a whole, they dictate that no funds for
				electioneering communications may be from an account in which funds from
				corporations, labor unions or other prohibited sources were commingled with
				funds from individuals unless the entity making the disbursement for the
				electioneering communication fits within the narrow statutory exception for
				entities meeting all the criteria of
				G.S.
				163-278.19(f).
You next ask whether the accounts in which the funds used for
				electioneering communications are deposited must be maintained in North
				Carolina. Neither Article 22E nor Article 22F imposes a requirement that the
				accounts be maintained in this State. In providing disclosure of disbursements
				for electioneering communications, the entity making the disclosure is asked to
				provide the name of the individual who controls the accounts for the entity
				making the disbursement and that individual's mailing address, telephone
				number, their principal place of business or employer's name, and their
				occupation. This information is requested so that the State Board has the
				information necessary to contact the appropriate representative of the entity
				making the disclosure if it has questions about the reports the entity has
				filed. The State Board has promulgated a reporting form for electioneering
				communications and it is available in editable pdf format on the State Board's
				web page (
www.sboe.state.nc.us/index_cfrs.html
).
				A copy of the form and instructions is attached.
Next you ask whether "the State Board intends to apply"
				consultation and coordination standards' drawn from the Federal Election
				Campaign Act as is more fully addressed in the administrative scheme
				promulgated by the Federal Election Commission." As you are undoubtedly aware,
				on September 18, 2004, the United States District Court for the District of
				Columbia rejected the coordination regulations adopted by the Federal Elections
				Commission ("FEC") implementing the Bipartisan Campaign Reform Act of 2002
				("BCRA") in the case of
Shays v. FEC
(No. 02-1984(CKK)). The
				FEC announced on September 28 that it had voted to appeal the decision but it
				had "not yet determined whether it will ask the court of appeals to review all,
				or only some, of the rules remanded to the Commission by the district court."
				(
www.fec.gov
) The State Board may review the
				evolving case law on the validity of the FEC regulations, as well as
				developments with respect to the statutes or regulations of other jurisdictions
				dealing with consultation and coordination, in order to better understand and
				apply North Carolina's statutes; however, the State Board does not consider
				regulations adopted by another jurisdiction to be in any way binding on
				it.
Rather, in interpreting North Carolina's statutes, the State
				Board will rely on ordinary principles of statutory construction. A fundamental
				principle on which it will rely is that words used in a statute will be given
				their common or ordinary meaning unless the General Assembly has specifically
				defined them.
Food Town Stores, Inc. v. City of Salisbury
, 300
				N.C. 21, 265 S.E.2d 123 (1980). In addition, "in the absence of a contextual
				definition, [the State Board] may look to dictionaries to determine the
				ordinary meaning of words within a statute."
Perkins v. Ark.Trucking
				Servs, Inc.
, 351 N.C. 634, 638, 528, S.E.2d 902, 904 (2000).
The term "independent expenditure" is defined in N.C. Gen.
				Stat. §
								163-278.6(9a) in
				pertinent part to mean "an expenditure to support or oppose the nomination or
				election of one or more clearly identified candidates
that is made
				without consultation or coordination with a candidate or agent of a
				candidate
whose nomination or election the expenditure supports or
				whose nomination or election the expenditure opposes." (Emphasis supplied.) The
				State Board will apply the common understanding of the words used in this
				definition to determine whether an expenditure is independent. If there is any
				doubt about the meaning of a word used in the definition, then the State Board
				may rely on a dictionary to determine the meaning of a word. In addition, if a
				word has been construed by a North Carolina court in an analogous context, then
				the meaning given the word by the court will be significant.
The purpose of an advisory opinion under N.C. Gen. Stat. §
								163-278.23 is to provide an
				opinion to candidates, committees and others regarding compliance with the
				campaign reporting statutes. It is a vehicle for providing guidance on the
				application of the statutes to a set of facts. Whether an expenditure is "made
				without consultation or coordination" will of necessity be made on a
				case-by-case basis considering the pertinent facts under the principles set
				forth herein. Since your letter presents no facts to which the statutes may be
				applied, I am unable to provide any more definitive guidance at this time. You
				are encouraged in the future to request an opinion with respect to a given set
				of facts if you are uncertain of the application of the campaign reporting
				statutes to those facts.
Changes in statutes or case law may affect this opinion and you
				should evaluate their applicability in relying on it. This opinion will be
				filed with the Codifier of Rules to be published unedited in the North Carolina
				Register and the North Carolina Administrative Code.
Sincerely,
Gary O. Bartlett
Executive Director
cc:
Julian Mann III, Codifier of Rules