October 30, 1978
The Honorable Lorna B. Herseth
Secretary of State
State Capitol
Pierre, South Dakota 57501
Official Opinion No. 78-51
Campaign financing reports
Dear Mrs. Herseth:
You have asked for an opinion based upon the following factual situation:
FACTS:
David Volk, former candidate for 1st District Congress, now running for State Treasurer, had his committee for the former contest file federal election commission reports as required by law and now, as a state candidate, must file his committee's reports with the state Ethics Commission.
Based on the above factual situation, you have asked the following questions:
QUESTIONS:
1. Must the present committee reconcile the list of contributors to the former committee in their current committee reports?
1A. The Ethics Commission would also appreciate it if you would answer the same question if a former candidate for a state office ended up running for another state office in the same election year. The Commission wondered if your answer to this question might be different since one candidate is going from a federal office to a state office and the other candidate would be running for two different state offices.
2. The Ethics Commission would also appreciate it if you could also address this question from the point of view of the contributor: would the contributor be restricted from giving the full one thousand dollar contribution to a state candidate if the contributor had previously donated to the other campaign?
IN RE QUESTION NO. 1:
From conversations with your office staff, I have also learned that the Volk for Congress Committee filed its termination statement on or about October 7, 1978. This statement showed no cash on hand and that all debts had been paid. The Volk for Treasurer Committee was organized in July, 1978. These two committees have also had different treasurers.
SDCL 12-25-1.1 provides:
No person, except as otherwise provided in this chapter, shall contribute more than one thousand dollars to or in behalf of any individual candidate for state-wide office in any calendar year or more than two hundred and fifty dollars to or in behalf of an individual candidate for legislative or county office in any calendar year.
SDCL 12-25-13 provides in part:
Any candidate for any state or legislative office at any general or primary election or any committee participating in such election shall make and file with the secretary of state on the seventh day prior to any such election a detailed statement, complete through the tenth day prior to such election, of all valuable considerations received, obligated or paid by such candidate or by persons authorized by such candidate. . . . All reports filed pursuant to this section shall be consecutive and, taken together, shall cover the entire year's receipts and expenditures.
The Federal Election Campaign Act of 1971 and its subsequent amendments supersedes and preempts any provision of state law with respect to federal office. 2 U.S.C.A. § 453. Also, the Federal Election Campaign Act of 1971 requires candidates for federal office to file their federal ethics commission reports with their respective Secretary of State office. 2 U.S.C.A. § 439.
The two committees formed in the above factual situation are separate and distinct. They are governed by different laws. Neither federal law nor state law requires that the two committees reconcile their reports.
It is my opinion that the present committee does not need to reconcile the list of contributors to the former committee in their current committee report.
The answer to your first question is no.
IN RE QUESTION NO. 1A:
It is impossible to answer this hypothetical question. There are too many factual situations that could change the answer to this type of question. I therefore respectfully decline to issue my opinion on this matter.
The Ethics Commission does have the power to issue advisory opinions, SDCL 12-25A-15. This is a good opportunity for the Ethics Commission to use that authority. My office will review any such opinion if requested, but as you know there are several lawyers on the Commission that can provide the Commission with their legal expertise.
IN RE QUESTION NO. 2:
As I stated above in my answer to Question No. 1, each campaign is covered by a separate law. The contributor could contribute to the federal office campaign and in addition up to one thousand dollars for the state-wide office.
In view of the fact that the Attorney General is a candidate for office and is affected by this decision, he has taken himself out of making the decision on this matter and signing this opinion. For this reason, this opinion is being issued by the Attorney General's Office, as an official opinion without Mr. Janklow's signature pursuant to SDCL 1-11-4, which authorizes an Assistant Attorney General to act with the same power and authority as the Attorney General.
Respectfully submitted,
David O. Carter
Assistant Attorney General
DOC:RVJ:jo
