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Warning: this is a hand-typed copy which might contain errors. (Seal of North Carolina) STATE
BOARD OF ELECTIONS 6400 Mail
Service Center * Raleigh, North Carolina 27699-6400 GARY O. BARTLETT Executive DirectorMAILING
ADDRESS: P.O.BOX 27255 RALEIGH, NC
27611-7255 April
8, 2004 Mr.
Roger W. Knight Wyrick,
Robbins, Yates, Ponton, LLP 4101
Lake Boone Trail Suite
300 Raleigh,
NC 27606-7506 Dear
Mr. Knight, This
letter contains an opinion of the Executive Director of the State Board of
Elections pursuant to G.S. § 163-278.23. In
your request for an opinion, you ask whether the North Carolina Republican Main
Street Committee ("NCRMSC") may solicit and accept contributions from
individuals and corporations for the sole purpose of producing "issue
advocacy" advertisements and educational materials. Groups that accept
contributions and make expenditures for the sole purpose of engaging in
"issue advocacy" are not subject to North Carolina campaign finance
laws. However, there are several factors that must be addressed before arriving
at this conclusion for NCRMSC: First,
pursuant to NCGS § 163-278.15 and G.S. § 162-278.19, business entities may not
contribute to candidates or political committees. Therefore, in order to allow
NCRMSC to accept contributions from business entities, it must first be
established that the group is not a political committee. The term
"political committee" is defined in NCGS § 163-278.6(14). It states that a group that accepts anything
of value to make contributions or expenditures and has a major purpose to
support or oppose the nomination or election of one or more clearly identified
candidates or to support or oppose the nomination or election of candidates
of a clearly identified
political party is a political committee.
There is also a "rebuttable presumption" standard included in
the "political committee" definition that has been struck down in a recent
court decision Thus, this
"presumption" should not be considered. Your letter states NCRMSC intends to produce ads that do not
advocate for the election or defeat of any candidate. Therefore, this advisory
opinion assumes that all contributions received and expenditures made will only
be for the production of these "issue advocacy" ads. If this
assumption is incorrect, this advisory opinion will not be valid. Next,
assuming the only activity of NCRMSC is to produce "issue advocacy"
ads, a determination must be made that the ads are in fact "issue"
and do not support or oppose the nomination or election of clearly identified
candidates or candidates of a particular political party. Groups engaging in
communications that are "express advocacy" must abide by the
regulations of Article 22A of Chapter 163 of the North Carolina General
Statutes, including the prohibition on the acceptance of business
contributions. In order to determine if a communication is "express
advocacy" and subject to Article 22A regulations, we rely on the statutory
guidance of NCGS § 163-278.14A.
However, due to a recent court decision in the Fourth Circuit, the North
Carolina State Board of Elections only relies upon subdivision (1) of
subsection (a) and subsection (b) of the statute. The language provided in this
subdivision defines examples of "magic words" that must be included
in a communications for it to be considered "express advocacy."
Subdivision (2) of subsection (a) was determined unconstitutional by the Fourth
Circuit. The language in this subdivision defined contextual factors that could
be used to determine if a communication is "expressly" advocating for
or against candidates. These contextual factors are not presently considered as
a result of the Fourth Circuit ruling. But, it should be noted that the Fourth
Circuit decision is presently under review by the United States Supreme
Court. Nevertheless, we are bound to
follow the ruling of the Fourth Circuit and only rely on the "magic
word" standard, unless it is overturned. If the ruling should be overturned,
this advisory opinion would be nullified. To
conclude, as long as NCRMSC does not meet the definition of a political
committee and does not engage in "express advocacy" in any
activities, they would not be subject to the provisions of Article 22A of the
North Carolina General Statues and would be allowed to accept funds from any
source to engage in the "issue" related goals and purposes of the
"committee." If the purpose
of NCRMSC should change to a goal to expressly advocate for the election or
defeat of specified candidates or candidates of a particular political party,
NCRMSC would be subject to the provisions of Article 22A and would be required
to register as a "political committee" with the State Board of
Elections. If
we can be of further assistance, please don't hesitate to contact our
office. We thank you for your interest
in campaign finance compliance. Sincerely, (signed) Gary
O. Bartlett Executive
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