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Unofficial Opinion 92-18

Unofficial Opinion 92-18

November 4, 1992
To: 

State Senator, District 32

Re: 

Questions regarding disposition of campaign contributions.

You have requested my opinion concerning the legality of distributing campaign contributions to certain entities, given recent amendments to the Ethics in Government Act, codified at O.C.G.A. § 21-5-1, et seq. I will endeavor to answer your questions in the order in which they were presented.

1.  Can elected officials use campaign funds to make contributions to their political parties?

O.C.G.A. § 21-5-33 (Supp. 1992) governs the proper disposition of campaign contributions. Generally, "[c]ontributions to a candidate, a campaign committee, or a public officer holding elective office and any proceeds from investing such contributions shall be utilized only to defray ordinary and necessary expenses. . . ." O.C.G.A. § 21-5-33(a).  However, O.C.G.A. § 21-5-33(b)(1) provides that those contributions received by a candidate, a campaign committee, or an elected officer "in excess of those necessary to defray  [*2]  expenses" pursuant to O.C.G.A. 21-5-33(a) and as determined by the candidate or officer may otherwise be distributed only in those ways set forth specifically in that subsection.

One of the specifically permitted uses for such funds is contained in O.C.G.A. § 21-5-33(b)(1)(B), which states that contributions in excess of those necessary to defray expenses may be transferred "without limitation to any national, state, or local committee of any political party or to any candidate," except as otherwise provided in O.C.G.A. § 21-5-33(b)(1)(D).

This latter Code provision limits the use of contributions received for a campaign for one office towards a future campaign for another office.  The two Code sections should be read in pari materia to avoid conflict.  Lewis v. City of Smyrna, 214 Ga. 323, 326 (1958). By referring to O.C.G.A. § 21-5-33(b)(1)(D) as an "exception" to the ability of a candidate to transfer campaign funds "without limitation" to a political party, the General Assembly appears to have intended to limit the use of campaign contributions by an office holder towards his or her own future campaigns, and not to limit the ability of a candidate to transfer funds to [*3]  another candidate or to a political party.

Consequently, elected officials may distribute campaign contributions in excess of those necessary to defray expenses to a national, state, or local committee of their political party for use in future campaigns, as long as the transfer is not made for the purpose of avoiding the restrictions contained in O.C.G.A. § 21-5-33(b)(1)(D).

2.  Can campaign funds be used to pay for political advertising in publications?

As stated above, campaign contributions can be used only to defray ordinary and necessary expenses and for those specifically listed matters in O.C.G.A. § 21-5-33(b) for those contributions in excess of those needed to defray expenses. None of the enumerated activities includes payments for political advertising in publications.

Nevertheless, it would appear that political advertising would fall within the general phrase "ordinary and necessary expenses" relating to a campaign. In the interpretation of statutes, the words contained therein should be given their natural and logical meaning.  O.C.G.A. § 1-3-1(b); Holloway v. Jove, 247 Ga. 678, 681 (1981). There can be little doubt that political advertising in publications [*4]  would be a regular, usual, or ordinary expense of any campaign. Therefore, there is no prohibition on the use of campaign contributions for political advertising in publications.

3.  Can campaign funds be used to make contributions to nonprofit community activities?

Once again, reference to O.C.G.A. § 21-5-33(b) answers your question.  Contributions in excess of those necessary to defray expenses can be used "[a]s contributions to any charitable organization described in 26 U.S.C. 170(c) as said federal statute exists on March 1, 1986, and which additionally shall include educational, eleemosynary, and nonprofit organizations." O.C.G.A. § 21-5-33(a)(1)(A).  Thus, nonprofit organizations may receive those campaign contributions which are in excess of those necessary to defray expenses.

4.  Are those contributions raised prior to the 1992 amendments to O.C.G.A. § 21-5-33 subject to these new provisions?

Prior to the 1992 amendments to O.C.G.A. § 21-5-33, any contribution received by a candidate, a candidate's campaign committee, or elected official in excess of those necessary to defray expenses could be used for future campaigns for any elective office and for transferral  [*5]  to any candidate or political party without exception.  Ga. Laws 1986, pp. 957, 973.  Under the new version of O.C.G.A. §§ 21-5-33(b)(1)(B) and (D), the same contribution can be used for use in future campaigns for only that elective office for which the contribution was received.

With respect to those contributions received prior to these amendments, O.C.G.A. § 21-5-33(b)(1)(D) provides ample guidance:

With respect to contributions held on January 1, 1992, or received thereafter, in the event the candidate, campaign committee, or public officer holding elective office has not designated, prior to receiving contributions to which this Code section is applicable, the office for which campaign contributions are received thereby, those contributions shall be deemed to have been received for the elective office which the candidate held at the time the contributions were received or, if the candidate did not then hold elective office, those contributions shall be deemed to have been received for that elective office for which that person was a candidate most recently following the receipt of such contribution. . . .

Therefore, contributions raised prior to the effective date of  [*6]  the new amendments to O.C.G.A. § 21-5-33 will be controlled by O.C.G.A. § 21-5-33(a)(1)(D) with respect to the proper disposition of such funds for future campaigns.

Finally, I also must point out that while this opinion deals only with an analysis of certain permitted distributions of campaign contributions, any such expenditures are still subject to the disclosure requirements contained in O.C.G.A. § 21-5-34.

Prepared by:

MARK H. COHEN,

Senior Assistant Attorney General