AGLO 1976 No. 14 - Feb 23 1976
ELECTIONS ‑- FUNDS ‑- PUBLIC ‑- CAMPAIGN CONTRIBUTIONS
Constitutionality of the use of state funds to finance election campaigns; constitutional ability of the legislature to restrict campaign contributions so that persons might only contribute to a candidate if they are residents of the district which that candidate will represent if elected.
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February 23, 1976
Honorable Earl F. Tilly
State Representative, 12th District
326 House Office Building
Olympia, Washington 98504 Cite as: AGLO 1976 No. 14
By recent letter you have requested our opinion on the following questions involving the constitutionality of certain proposed legislation regarding the financing of political campaigns.
"1. Is it constitutionally permissible to use public funds to finance election campaigns by:
"a. Giving direct grants to candidates to match, at some ratio, private contributions; or
"b. Buying T.V. or radio time or newspaper space for all candidates; or
"c. Distributing a vastly expanded voters' pamphlet with sufficient room for each candidate to offer extended remarks?
"2. Is it constitutionally permissible to restrict campaign contributions so that persons may contribute to a candidate only if they are residents of the district which that candidate will represent if elected?"
We respond to these questions in the manner set forth in our analysis.
Because you have not accompanied your request with a specific bill incorporating the above described proposals, it will not be possible for us at this time to provide you with a definitive opinion as to their constitutionality. Accord, our letter of April 3, 1974, to State Representative Jeff Douthwaite, copy enclosed, in which we were similarly called upon to express our views regarding the first set of questions you have here posed; i.e., the constitutionality [[Orig. Op. Page 2]] of using state funds to finance political campaigns. As we did in that case, however, we will here likewise attempt to provide you with some informal guidance and then, later, we will be happy to review more formally whatever bill or bills you may decide to sponsor in connection with this over-all subject.
In our letter to Representative Douthwaite, we said that because of Article VIII, §§ 5 and 7 of the Washington constitution, prohibiting gifts of public funds to or for the benefit of private individuals, the legislature would have to frame any plan designed to provide for the public funding of political campaigns in such a manner,
". . . as to cause any public moneys paid to a political party or candidate for campaign expenses to be in the form of compensation for services rendered by the recipients, and not as gratuities. . . ."
This, necessarily, must remain our position today insofar as any use ofstate or municipal funds are concerned. In so advising you we are, of course, cognizant of the fact that the United States Supreme Court has recently upheld the use of federal funds to help finance the campaigns of candidates for the presidency of the United States. See,Buckley v. Valeo, No. 75-436, decided on January 30, 1976. The problem, however, is that in our state we have, in Article VIII, §§ 5 and 7,supra, a set of constitutional restrictions upon the use of state and local funds to aid private individuals which have no counterpart in the United States Constitution. Thus, even though the road has now been opened, constitutionally, for the use offederal funds to help finance at least some political campaigns, the situation in our own state remains unaffected by this recent Supreme Court ruling.
On the other hand, this state constitutional problem can more easily be overcome insofar as an enlarged candidates' pamphlet (published as a part of the state voters' pamphlet) is concerned. At the present time, under RCW 29.80.050, any candidates desiring to have materials relating to their campaigns included in the candidates' pamphlet are required to pay for their allotted space in accordance with a specific fee schedule set forth in that statute. Presumably, any expansion in the scope of the candidates' pamphlet such as is visualized by the final segment of your first question would be accompanied by a sufficient increase in the fee to cover corresponding additional publication costs; and thus, to that extent, the approach [[Orig. Op. Page 3]] contemplated by that part of your question would, in our opinion, remain constitutionally defensible.
We turn, then, to your second question which (repeated for ease of reference) asks:
"Is it constitutionally permissible to restrict campaign contributions so that persons may contribute to a candidate only if they are residents of the district which that candidate will represent if elected?"
Although the Washington supreme court has not yet had occasion to pass upon the constitutionality of a limitation upon campaign contributions, it has recently expressed itself on the analogous question of the constitutionality of limitations upon political campaign expenditures. We have reference to the case of Bare v. Gorton, 84 Wn.2d 380, 526 P.2d 379 (1974), in which the court invalidated the following provisions of § 14 of Initiative No. 276 (RCW 42.17.140):
"(1) The total of expenditures made in any election campaign in connection with any public office shall not exceed the larger of the following amounts:
"(a) Ten cents multiplied by the number of voters registered in the constituency at the last general election for the public office; or
"(b) Five thousand dollars; or
"(c) A sum equal to the public salary which will be paid to the occupant of the office which the candidate seeks, during the term for which the successful candidate will be elected: Provided, That with respect to candidates for the office of governor and lieutenant governor of the state of Washington only, a sum equal to the public salary which will be paid the governor during the term sought, multiplied by two; and with respect to candidates for the state legislature only, a sum equal to the public salary which will be paid to a member of the state senate during his term.
[[Orig. Op. Page 4]]
"(2) In any election campaign in connection with any state‑wide ballot proposition the total of expenditures made shall not exceed one hundred thousand dollars. The total of such expenditures in any election campaign in connection with any other ballot proposition shall not exceed ten cents multiplied by the number of voters registered in the constituency voting on such proposition."
The Washington court held this provision to be in violation of the fundamental right of free speech as protected by the First Amendment to the United States Constitution, saying, at pp. 385-6:
". . . section 14 is fatally defective because it can operate to prohibit absolutely plaintiff and others from exercising their constitutionally guarantied [[guaranteed]]freedom of speech. The defendants argue that the section merely imposes a regulation on the amount of money which can be spent in communicating. However, freedom of speech and press involve more than the bare right to speak and publish. To say otherwise is to ignore reality. To communicate effectively with the mass of voters, one cannot be limited to verbal communication, person-to-person, but must use the media in one form or another. The protected rights include dissemination, distribution and the correlative rights of the public to receive such expressions of opinion. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L.Ed.2d 371, 89 S.Ct. 1794 (1969).
"The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . .
"Griswold v. Connecticut, 381 U.S. 479, 482, 14 L.Ed.2d 510, 85 S.Ct. 1678 (1965).
"If a committee, indeed if one person, has spent the maximum allowable in favor of a levy, plaintiff is absolutely barred from any communication which involves an expenditure, even the contribution of personal services beyond the statutory minimum. The same would be true [[Orig. Op. Page 5]] of every other person in the school district. Furthermore, section 14 is so restrictive that plaintiff cannot even mail a letter with first class postage to each voter since the stamp alone equals the limitation. These First Amendment freedoms cannot be so trammeled upon. Both in terms of the potential of absolute prohibition and for lack of narrow regulation drawn with precision and specificity, section 14 is unconstitutional. Keyishian v. Board of Regents, supra;Lovell v. Griffin, 303 U.S. 444, 82 L.Ed. 949, 58, S.Ct. 666 (1938)."
Likewise inBuckley v. Valeo, supra, the Supreme Court similarly held certain aspects of the Federal Election Campaign Act of 1974 limiting expenditures by candidates for federal offices to be violative of the First Amendment for much the same reasons. In addition, the Court also invalidated a limitation upon indirect contributions in the form of direct expenditures by backers of "clearly identified" candidates in order, for example, to obtain billboard or other advertising space to be used for the support of those candidates. At the same time, however, the Court upheld other parts of the law which limit direct campaigncontributions to a specified dollar amount per individual. In essence, the Court held that as compared to limitations upon campaign expenditures, restrictions upon such direct contributions have a less significant impact upon free speech and may, if reasonable, also constitute permissible intrusions upon the freedom of association which is protected by the First Amendment as well.
Nonetheless, our reading of that portion of the Buckley decision still clearly indicates the necessity of a rational basis for any restriction even upon direct campaign contributions. The particular limitations which were upheld in that case were justifiable, in the Court's judgment, because they were
". . . appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion."
Here, on the other hand, the proposal contemplated by your second question would involve not merely a limitation but a total prohibition upon any contributions to a candidate if the prospective contributors are not residents of the [[Orig. Op. Page 6]] district which the candidate would represent if elected. In the case of candidates for positions in the state legislature, particularly, the vulnerability of this approach to successful First Amendment challenge seems to us obvious. Although legislators only represent given districts every law which they pass is applicable throughout the entire state and to all persons residing therein. Thus, every citizen of the state of Washington, no matter where he lives, has a very real stake in the over-all composition of the entire legislation ‑ in addition to the stake which he has in the determination of who represents his particular legislative district. Therefore, in our opinion, any absolute prohibition upon contributions to a legislative candidate based solely upon nonresidence of the contributor within a given district would be most unlikely to survive such an attack upon its constitutionality.
Furthermore, although a somewhat different question would be posed by a total prohibition against nonresident campaign contributions to candidates for county or municipal offices (barring any contributions by persons not residing within the particular municipality), we are also of the view that even this form of regulation would be difficult to justify, constitutionally.
The restriction upon free speech arising out of a prohibition against contributions would obviously have an infinitely greater impact than would a mere limitation. Moreover, as above noted, indirect contributions to political candidates may not be limited at all under the rationale of Buckley v. Valeo, supra. It is, therefore, our opinion that the chances that a prohibition such as you have described in your second question would be found constitutional are remote at best.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General