The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6767

August 25, 1993

Contributions to or expenditures on behalf of a political committee by a corporate separate segregated fund

Section 55(1) of the Michigan Campaign Finance Act does not allow a separate segregated fund established by a corporation to make contributions to or expenditures on behalf of a political committee.

Honorable Richard H. Austin

Secretary of State

Treasury Building

Lansing, MI

MICHIGAN CAMPAIGN FINANCE ACT:

You have asked whether section 55(1) of the Michigan Campaign Finance Act, MCL 169.201 et seq; MSA 4.1703(1) et seq, allows a separate segregated fund established by a corporation to make contributions to or expenditures on behalf of a political committee. In order to answer this question, it is necessary to summarize pertinent provisions of that statute.

Section 54(1) of the Michigan Campaign Finance Act prohibits corporations from making contributions or expenditures in connection with state elections involving candidates. (1) Section 55(1) of the Act, however, does permit a corporation to make an expenditure for the establishment and administration of a separate segregated fund provided that the resulting separate segregated fund is limited to making contributions to four specifically enumerated types of committees:

A corporation or joint stock company formed under the laws of this or another state or foreign country may make an expenditure for the establishment and administration and solicitation of contributions to a separate segregated fund to be used for political purposes. A fund established under this section shall be limited to making contributions to, and expenditures on behalf of, [1] candidate committees, [2] ballot question committees, [3] political party committees, and [4] independent committees. [ Emphasis and bracketed numbers added.]

Sections 2 through 12 of the Act define the various words and phrases used in the Act, including each of the four types of committees enumerated in section 55(1). In 1977, the Legislature apparently became aware that the Act had failed to make allowance for certain other types of committees, such as committees formed to seek the recall of an elected public official. In an effort to address this omission, the Legislature adopted 1977 PA 314. This amendatory act revised section 11 by, inter alia, adding and defining a new type of committee, a "political committee." This new committee was designed as a catch-all category, defined so as to encompass any committee which does not fall within the definition of any of the other four committees. Significantly, however, the amendatory act did nothing other than to add this new definition; it did not amend any of the substantive provisions of the Act to incorporate any reference to this newly defined type of committee. Thus, section 55(1), supra, continues to refer only to the four specific types of committees listed in the above quotation.

Both OAG, 1977-1978, No 5279, 391, 392 (March 22, 1978), and OAG, 1977-1978, No 5344, 549, 552 (July 20, 1978), concluded that section 55(1) of the Michigan Campaign Finance Act does not allow a corporate separate segregated fund to make contributions to or expenditures on behalf of any committees except the four types of committees listed therein. To date, the Legislature has not amended section 55(1) to change that result.

Your letter contains quotes from documents filed with your office suggesting that Section 55(1) be given a contrary interpretation to render it constitutional. However, the doctrine that a statute be given, whenever possible, a constitutional construction, only applies where a statute is ambiguous and more than one interpretation is possible. Sullivan v Michigan State Board of Dentistry, 268 Mich 427, 429-430; 256 NW 471 (1934). The restriction in Section 55(1) on contributions to political committees is not ambiguous.

Moreover, research has not revealed any definitive case law compelling the conclusion that the restriction in Section 55(1) is unconstitutional. In Austin v Michigan Chamber of Commerce, 494 US 652; 110 SCt 1391; 108 LEd2d 652 (1990), the United States Supreme Court upheld the prohibition in Section 54(1) of the Michigan Campaign Finance Act on corporate contributions or expenditures in connection with state elections involving candidates. In that case, the parties did not raise and the court did not discuss the constitutionality of the prohibition in Section 55(1) on a separate segregated fund established by a corporation making contributions to or expenditures on behalf of a political committee.

It is my opinion, therefore, that section 55(1) of the Michigan Campaign Finance Act does not allow a separate segregated fund established by a corporation to make contributions to or expenditures on behalf of a political committee.

The Legislature may amend the Michigan Campaign Finance Act to authorize corporate separate segregated funds to contribute to or make expenditures on behalf of political committees, thereby treating all five kinds of committees the same.

Frank J. Kelley

Attorney General

(1 This restriction does not extend to contributions for the qualification, passage, or defeat of a ballot question; pursuant to section 54(3), these contributions may be made without restriction as to amount)