January 21, 1976
Mrs. Lorna B. Herseth
Secretary of State
State Capitol
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-8
Maximum expenditures by candidates for public office
Dear Mrs. Herseth:
In your request for an opinion, you state that by law the State Ethics Commission and county auditors are charged with the duty of adjusting expenditure limitations for candidates to take into account cost of living increases (SDCL 12-25-7.3 and 12-25-7.4). However, the maximum expenditure limit is clearly stated in SDCL 12-25-7 and it would therefore appear that a conflict exists.
The specific questions you ask are:
(1) Do SDCL 12-25-7.3 and SDCL 12-25-7.4 give the State Ethics Commission and County Auditors, respectively, the authority to adjust candidate expenditures above the maximim limit, which is clearly stated in SDCL 12-25-7, to take into account cost of living increases?
(2) If yes and the Ethics Commission and County Auditors do not adjust expenditure limits to take into account cost of living increases, could a candidate, who overspent, use this as a defense since the cost of living increase is required by statute?
The statutes cited in your request read as follows:
12-25-7. No candidate for the office of Governor shall expend or have expended in his behalf any sum greater than fifteen cents for each person in the state for the primary election and twenty cents for each person in the state for the general election. No candidate for any other state-wide office shall expend or have expended in his behalf any sum greater than five cents for each person in the state for the general election. No candidate for state legislative office or county office shall expend or have expended in his behalf any sum greater than ten cents for each person in his election district for the primary election and ten cents for each person in his election district for the general election. Nothing in this section shall prohibit the expenditure of not more than one thousand two hundred and fifty dollars in any candidate's behalf.
12-25-7.3. The state ethics commission, in January of any year in which any state or legislative election shall be held, shall determine and certify the population of, and the expenditure limitation applicable to, each such election contest. In all cases, the state ethics commission shall refer to the current United States bureau of census statistics.
The state ethics commission shall adjust expenditure limitations to take into account cost of living increases as determined by the United States department of labor.
12-25-7.4. The auditor of each county, in January of any year in which any county or district election shall be held, shall determine and certify the population of, and the expenditure limitation applicable to, each such election contest. In all cases, the county auditor shall refer to the current United States bureau of census statistics.
The auditor shall adjust expenditure limitations to take into account cost of living increases as determined by the United States department of labor.
Although your opinion request does not address the issue of the constitutionality of the statutes in question, I feel it bears mentioning. The final determination of the constitutionality of a statute is, of course, a judicial function, and the comments herein are intended as advisory only.
Article VI, § 5 of the South Dakota Constitution provides, in part:
Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.
This provision, as well as the like provision in the First Amendment to the United States Constitution, has been strictly construed to protect the individual freedom of expression. In order to justify legislation which encroaches on personal freedoms, the State must make a showing of a compelling, subordinating interest which overrides the interest of free association. 16 Am. Jur. 2d Constitutional Law 534 et seq. Therefore, an argument can be advanced that SDCL 12-25-7 et seq. effectively infringe upon the freedom of expression by limiting expenditures and thus the amount of campaigning, and that no substantial and compelling State interest is served thereby. I might add that this issue is also under consideration by the United States Congress incident to proposed federal campaign financing legislation.
As has been stated in a number of former opinions, it is a well established rule of construction that statutes must be construed in reference to each other so as to effectuate the provisions of each. Unless an inherent conflict, ambiguity or inconsistency exists the provisions must be literally interpreted. Hirning v. Toohey, 210 N.W. 723 (S.D., 1926).
In examining the herein cited statutes, it is apparent that SDCL 12-25-7 provides the general rule regarding expenditure limitations for candidates and the procedure for determination thereof. However, the limitations are highly inelastic and may vary only to the extent total population changes.
On the other hand, SDCL 12-25-7.3 and 12-25-7.4 provide a degree of flexibility by authorizing and requiring cost of living adjustments to the expenditure limitations.
It is my opinion that the 1975 Legislature, in enacting the above provisions, was cognizant of the fact that campaign costs are likely to increase in future years. Therefore, they provided for both a base expenditure limitation and an adjustment factor.
Therefore, I find the statutes to be in "pari materia," and the State Ethics Commission and county auditors are mandated to calculate the maximum allowable expenditure as a composite of the respective amount per person (SDCL 12-25-7) and the cost of living adjustment (SDCL 12-25-7.3 and 12-25-7.4).
The answer to your question number one is YES. The State Ethics Commission and county auditors are authorized and required to make cost of living adjustments.
Your question number two is also hereinbefore answered. The duty to adjust expenditure limits to take into account cost of living increases is on the Ethics Commission and county auditors. Therefore, a candidate would have to be justified in expending an amount inclusive of the cost of living adjustment. The fact that there is no certification of the maximum amount cannot serve to defeat the provisions of the law.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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