On appeal from final action of the New Jersey Election Law Enforcement Commission.
Simpson, Long and Gaynor. The opinion of the court was delivered by Simpson, P.J.A.D.
Plaintiffs challenge the validity of a portion of Advisory Opinion 33-1981 designated as Question 4 and the entirety of Advisory Opinion 10-1985 (hereafter AO 33-1981 and AO 10-1985, and collectively the AOs) issued by Defendant pursuant to N.J.S.A. 19:44A-6 of The New Jersey Campaign Contributions and Expenditures Reporting Act (N.J.S.A. 19:44A-1 et seq.). The AOs, issued by the New Jersey Election Law Enforcement Commission (ELEC), purport to require the allocation of a portion of certain campaign expenses of assembly candidates and county and other local office candidates to the gubernatorial campaign expenditure limits set forth in N.J.S.A. 19:44A-7. With the full cooperation of all interested counsel, briefing and oral arguments have been expedited to facilitate this early decision on the merits. The operative facts are not in dispute.
Governor Thomas H. Kean is the Republican candidate for reelection on November 5, 1985 and the Democratic challenger is Essex County Executive Peter Shapiro. On the same date two persons will be elected to the Assembly for each of 40 legislative districts, so that there are 80 Republican candidates and 80 Democratic candidates for these offices. In addition to any independent candidates for the Assembly, there are Republican, Democratic, and some Independent candidates for a number of other county and local offices. Plaintiffs in these consolidated cases are the authorized campaign committee for the reelection of Governor Kean (the "Kean Committee") and
the Republican candidates, John Azzolina and Joan Smith, for the 13th Legislative District (the "Republican Assembly Candidates"). Although not a party to these cases, the Shapiro '85 General Election Committee, Inc., the authorized campaign committee for the Democratic gubernatorial candidate, participated in an ELEC public meeting that considered the challenge to the AOs and has filed a letter brief with this court in support of both AOs.
The public policy of New Jersey requires reporting of election campaign contributions and expenditures. N.J.S.A. 19:44A-2; New Jersey Chamb. Commerce v. New Jersey Elec. Law Enforce. Comm., 82 N.J. 57 (1980). For the office of Governor, our policy is to provide financing with public support so that campaigns will be ". . . free from improper influence and so that persons of limited financial means may seek election to the State's highest office." N.J.S.A. 19:44A-27. The formula in N.J.S.A. 19:44A-7 limits the amount which may be spent "in aid of the candidacy" of gubernatorial candidates. N.J.S.A. 19:44A-38 provides that ELEC may adopt rules and regulations "to implement the provisions of this act and to carry out its purpose." The problem in these cases begins with the following regulations adopted by ELEC (citations are to N.J.A.C.):
(a) Where an expenditure is made on behalf of two or more candidates, the expenditure must be allocated between such candidates in a reasonable manner so as to fairly reflect the relative value to each of the candidates of such expenditure. The initial allocation should be made by the committee or candidates on a reasonable basis, and in advance of the expenditure where possible. All documents and financial records relating to the allocation and the expenditure should be retained:
1. Example: "Committee for A and B" is conducting a political campaign on behalf of candidate A and candidate B. The committee proposes to expend $100.00 for the purchase of a quantity of bumper stickers containing the slogan "Vote for A and B". The committee determines that the stickers are of equal value to each of the candidates. Thus $50.00 of the expenditure should be allocated to candidate A and $50.00 should be allocated to Candidate B. Financial records and a record of the facts on which the allocation is based must be retained.
19:25-15.3 Definitions for this subchapter
The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise.
"Independent expenditure" is an expenditure in aid of a candidate which is not made with the cooperation or prior consent of, or in consultation with or at the request or suggestion of, the candidate or any person or committee acting on behalf of the candidate.
19:25-15.28 Independent expenditures
(a) Independent expenditures shall not be deemed to be expenditures within the meaning of N.J.S.A. 19:44A-7, but all such expenditures shall be subject to all of the reporting and disclosure requirements of the act. Each person or political committee making independent expenditures who is required to file election reports pursuant to N.J.A.C. 19:25-12.5 shall include in the reports required under the act a sworn statement on a form provided by the commission that such independent expenditure was not made with the cooperation or prior consent of, or in consultation with or at the request or suggestion of, the candidate or any person or committee acting on behalf of the candidate.
(b) Any advertisement which is an independent expenditure shall include a clear and conspicuous statement that the advertisement is not authorized by any candidate and shall state the name and address of the person or organization making the expenditure.
AO 33-1981, issued July 23, 1981, provides, in relevant part, as follows:
Question 4. How combined advertising, that is, advertising on behalf of the gubernatorial candidate and other candidates, would be allocated.
This question is necessarily complicated by the fact that a large number of variables can easily be imagined. The Commission is generally of the view that, in the absence of extraordinary circumstances, an ad of this combined type which named or pictured or otherwise clearly identified the gubernatorial candidate would be allocable in an amount not less than 25% to the gubernatorial candidate.
In the simplest case in which the gubernatorial candidate "A" were named together with, for example, "B" and "C" and "D" (a senatorial candidate and two assembly candidates), and equal prominence were given to each of the persons, an allocation of 25% to the gubernatorial candidate would be presumed to be proper in the absence of a substantial showing that some greater allocation to the gubernatorial campaign was called for.
A different question arises where the name of the gubernatorial candidate is linked with, for example, "candidates for senate and assembly" or a similar type of designation. In that case, the Commission is of the view that at least 10% of the cost could properly be allocated to each of those other offices.
Whether a greater percentage could be allocated would be a question of fact and would have to depend on the other circumstances involved.
In the case involving one specific example, the mention of the gubernatorial candidate with candidates for 9 other offices (whether or not named) would not result in an allocation of one-tenth of the cost to the gubernatorial candidate. As described above, it would, in the absence of extraordinary circumstances, result in an allocation of at least 25% to the gubernatorial candidate. A piece in favor of "named gubernatorial candidate and the party slate" or "the (named gubernatorial candidate) team" would in all probability be regarded as requiring an allocation of nearly all of the expenditure to the gubernatorial candidate.
AO 10-1985 provides as follows:
ELECTION LAW ENFORCEMENT ...