2007-11-13 - WRITTEN OPINIONS

2007-11-13. WRITTEN OPINIONS

GARY O. BART LETT

Executive Director

MAILING ADDRESS:

P.O. BOX 27255

RALEIGH, NC 27611-7255

November 13,2007

Frank W, Folger

Helms Mulliss & Wicker, PLLC

2600 Two Hannover Square

Raleigh, NC 27601

Re: Advisory Opinion on Campaign Fundraising Questions pursuant to N.C. Gen. Stat. § 163-278.23

Dear Mr. Folger:

By letter dated October 17, 2007, you requested an advisory opinion. The questions you posed and my responses to them are as follows:

1. Without violating N.C.G.S. 163-278.13C or other North Carolina campaign finance laws, can a registered lobbyist employed by a corporation make a contribution to that corporation's political action committee ("PAC") knowing that the PAC plans to issue checks to State legislative and public servant candidates:

a. If the lobbyist does not have a vote or chooses not to vote on where the funds are to be distributed and does not make any recommendations as to which State candidates the PAC funds should be distributed? N.C. Gen. Stat. § 163-278.13C(a) prohibits lobbyists from making contributions "to a candidate or candidate campaign committee" when the candidate is a legislator or a public servant. It does not prohibit contributions by the lobbyist to other types of political committees, including the corporation's PAC, unless the facts are such as are discussed in "c" and "d" below.

b. If the lobbyist does not have a vote or chooses not to vote on where the funds are to be distributed but doesmake a recommendation to the PAC and/or the corporation as to which State candidates the funds should be distributed?

Yes.

c. If the lobbyist has a vote and exercises the vote on where the funds are to be distributed but does not unilaterally decide to which State candidates the funds should be distributed?

Possibly. This question is ambiguous and until we are given specific facts we cannot render a binding opinion. The lobbyist should avoid being the decision maker - either by acting unilaterally or by casting a determinative vote - on which candidates receive the PAC's contributions. If the lobbyist is the effective decision maker on which State candidates are to receive the contributions from the PAC and the lobbyist makes a contribution to the PAC, then the lobbyist's contribution could be doing indirectly what N.C. Gen. Stat. § 163-278.13C prohibits being done directly.

d. If the lobbyist solelydecides to which State candidates the funds should be distributed? N.C. Gen. Stat. § 163-278.13C prohibits the lobbyist from contributing to a legislator or public servant who is a candidate with the knowledge that he or she will make all decisions on which candidates will receive contributions from the PAC. In addition, giving in this manner would violate the prohibition against giving in the name of another set forth in N.C. Gen. Stat. § 163-278.14.

2. Without violating N.C.G.S. 163-278.13C or other North Carolina campaign finance laws, can a registered lobbyist employed by a corporation who does not make a contribution to the corporation's PAC:

a. Make a recommendation to the PAC and/or the corporation as to which State candidates the PAC funds should be distributed if the lobbyist does not have a vote or chooses not to vote on which State candidates are to receive the funds?

Yes. The actions prohibited by N.C.G.S. 163-278.13C include making contributions to certain candidates and bundling and delivering contributions to those candidates. The facts you have posited in this question do not present either of these situations.

b. Vote on where the PAC funds are to be distributed if the lobbyist does not unilaterally decide to which State candidates the funds should be distributed?

Possibly. This question is ambiguous and until we are given specific facts we cannot render a binding opinion. The lobbyist would be prudent, however, to avoid being the person who effectively decides to make a contribution from a corporation's PAC to a candidate who is a legislator or public servant as those terms are defined. This is true even if the lobbyist does not act unilaterally and even if the lobbyist does not make a contribution to the corporation's PAC because a contribution made by the corporation's PAC when the lobbyist was the decision maker could be viewed as doing indirectly what the lobbyist can not do directly.

c. Solelydecide to which State candidates the funds should be distributed?

See response to 2b above.

3. Without violating N.C.G.S. 163-278.13C or other North Carolina campaign finance laws, can a registered lobbyist contribute to a PAC if the PAC does not have a process, procedure, or policy established for earmarking monies to be distributed in this State?

N.C.G.S. 163-278.14 prohibits making contributions in the name of another, i.e., earmarking of contributions. No contribution should be made to a political committee if it is in fact earmarked, nor should any political committee have a process, procedure or policy permitting earmarking of monies to be distributed in this State. Absent concerns about giving in the name of another, however, a lobbyist may make a contribution to a political committee that is not a candidate committee of a legislator or a public servant as those terms are defined by the applicable statutes.

If you should have any questions about any of the above responses, please do not hesitate to contact me or Kim Strach, Deputy Director-Campaign Finance. As required by law, this opinion will be published unedited in the North Carolina Register by the Codifier of Rules.

Sincerely,

North Carolina Register Volume 29, Issue 09, November 3, 2014

Gary O. Bartlett

Executive Director

Cc: Julian Mann III, Codifier of Rules

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