        THE           AITORNEY    GENERAL
                         OF TEXAS




The Honorable Mark White              Opinion No. n-664
Secretary of State
State Capitol                         Re: Whether article
Au&in, Tax&%    78711                 14.03a, Election Code,
                                      imposing campaign spending
The Honorable M. L. Brockette         limits on candidates for
Commissioner                          public office, ia uncon-
Texas Education Agency                stitutional in liaht of
201 East 11th Street                  the United States-Supreme
AuBtin, Texas 10701                   Court decieion in Buckley
                                      v. Valeo, 96 S. Ct. 612
                                      Tzsnr
Dear Sire:

     Secretary White has requeeted our opinion regarding the
conetitutionalityof article 14.038 of the Election Code in
the light of the United States Supreme Court's recent
decision iiiBuckley 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 voting-
                   age population of the state;
                   (2) in a runoff pr@tary election,
                   4 cents multiplied by-the *voting-
                   age population of the state;
                   (3) in a-general election, 10 cents
                   multiplied by the voting-age popula-
                   tion of'the state.
             :.   .




                            p. 3641
The Ronorable Mark White
The Xonorable M. L. Brockette - page 2 (H-864)


             (d) For the purpose of calculatingthe
          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 com-
          mittee which is supportingthe candidate, is
          deemed to have been spent by the candidate.
          For the purposes of this section, a contribu-
          tion which a political committeemakes to a
          candidate is not an expenditureon behalf of
          the candidate.
             (e) The cempaign treasurerof a political
          committee or political action commmitteewhich
          is supporting a candidatemay not make expendi-
          tures on behalf of the candidate in excess of a
          limit fixed by the candidateor his campaign
          treasurer in a signed statement furnished to
          the campaign treasurerof the political
          committee or political action committee before
          he incurs any such expenditure. The candidate
          or his campaign treasurermay change the limit
          at any time before the election if the expendi-
          tures 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 expen-
          diture limit that he or his campaign treasurer has
          set for each political committee supportinghim
          with respect to the election to which the atate-
          ment relates. Where a political  committee
          makes en expenditure on behalf of more then
          one candidate, the entire amount is charged to
          each candidate's expenditurelimit.

              (f) Expendituresmade by en executive
          committee 0f.a political party or by lny
          other political committeeon behalf of the
          nominees of a political party in l general
          election without identifyingindividual
          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&ignexpenditureepply 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, o r laaiatant cuopaign treesurer,
            in excess of the difference between the
            candidate's expenditurelimit for the election
            and the aggregate of the limits that the
            oandidete or his campaign treasurerhas fixed
            for political c=itteea that are supporting
            him in the election. The campaign treasurer
            of a political committee is liable for expendi-
            tures 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
provides8
            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.

     In Buckley, the Supreme court held, inter &lie, that,
while aertain campaign spending limitationswere permissible,
section 608(c) of the Federal Election Campaign Act of 1971
was an invalid infringementupon the right of free expression
t$it;taed by the First Ampiment to the United States Conati-
          Seation 606(c), lzke section (a) of article 14.03a
end a&section (d) of section 11.22, placed mandatory.limita-
tiona on over&l1  cempaign expendituresby 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. Buckley, lupra
             a t652.

8ince the First Amendment is Rppliceble to the atetaa through
the Pourtemth Amendment, it is clear thet the campaign
expenditure limitetionaof article 14.03a of the Election Code
and laotion 11.22(d) of the Eduoation Code constitute,by
                       p. 3643
.,   .   -




             The Honorable Mark White
             The Honorable 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, 2'14U.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 coordi-
             nate 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 prohibi-
             tion 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 govern-
             mental interest in stemming the reality or appearance of
             corruption in the electoral process, [and] it heavily burdens
             core First Amendment expression." Buckley
                                                        '.=F on&l.
             As a result, it too was found to be unconatitut    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 expen-
             diture 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




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