Camechis, Karen

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Camechis, Karen

Thursday, March 12, 2009 1:46 PM Rivera, David

Campaign Fundraising During Session-Federal Office

Dear Chair Rivera:

You asked if your name may appear on an invitation to a political campaign fundraiser for Speaker Marco Rubio, a candidate for the U.S. Senate. According to the invitation, the fundraiser will be held during regular session and contributions will be provided directly to the "Marco Rubio Senate Exploratory Committee." I understand that you did not, in whole or in part, establish the Exploratory Committee, and that you do not, in whole or in part, maintain or control the Exploratory Committee.

House Rule 15.3(b) specifically governs solicitation of campaign contributions during session. According to the Rule, members are not allowed to solicit or accept any campaign contribution during regular, extended, or special session if the contribution is solicited or accepted:

1. on the member's own behalf,

2. on behalf of a political party,

3. on behalf of any organization with respect to which the member's solicitation is regulated under s. 106.0701, Florida Statutes, or

4. on behalf of a candidate for the House of Representatives; however, a member may contribute to the member's own campaign.

Based upon the facts presented above, House Rule 15.3 does not prohibit you from soliciting campaign contributions during session on behalf of Speaker Rubio's campaign for the U.S. Senate. Therefore, your name may be included on the invitation to Speaker Rubio's fundraiser.

If you participate in fundraising for Speaker Rubio's campaign, please bear in mind that House Rules 15.1,15.2,15.4, 15.5, and 15.6, as well as the Code of Ethics for Public Officers and Employees, set forth general ethics requirements that are applicable to the conduct of House members at all times, even though these provisions do not specifically address campaign fund raising.

Please contact me if you have any further questions.

Karen M. Camechis, General Counsel Florida House of Representatives 422 The Capitol

402 South Monroe Street Tallahassee, Florida 32399-1300 850-488-7631

Written communications to or from state officials regarding state business are public records available to tile public and media upon request Therefore, your email communications may be subject to public disclosure.

1

Florida House of Representatives

larry Cretul, Speaker Office of the General Counsel

Karen Camechis General Counsel

MEMORANDUM

FROM:

Representative Sandy Adams 1 fu /\

Karen Camechis, General Counsel \ ~ \ Congressional Campaign Fundraising - Informal Opinion

TO:

RE:

DATE:

February 23, 2010

You asked whether House Rule 15.3(b) prohibits a House member from soliciting or accepting contributions for his or her congressional campaign during the legislative session. House Rule 15.3(b) provides:

A member may neither solicit nor accept any campaign contribution during the 60-day regular legislative session or any extended or special session on the member's own behalf, on behalf of a political party, on behalf of any organization with respect to which the member's solicitation is regulated under s. 106.0701, Florida Statutes, or on behalf of a candidate for the House of Representatives; however, a member may contribute to the member's own campaign.

For at least ten years, the House has consistently concluded that the House Rules do not prohibit a House member from soliciting or accepting contributions for his or her own federal campaign during the legislative session. I have attached five previous opinions in which the House General Counsel concluded that the rule does not apply to a member's federal campaign (HCO 99-05, HCO 00-01, HCO 00-03, HCO 00-04, and HCO 07-01). The House continues to maintain that Rule 15.3(b) does not prohibit House members from soliciting or accepting contributions for their own federal campaigns during session.

Please be advised, however, that members must continue to comply with other provisions in House Rule 15 governing Ethics and Conduct of Members, including Rule 15.3(a), which prohibits a member from accepting "anything that reasonably may be construed to improperly influence the member's official act, decision, or vote" and Rule 15.2, which requires members to "perform at all times in a manner that promotes public confidence in the integrity and independence of the House and of the Legislature."

If you have any further questions, feel free to contact me.

422 The Capitol, 402 South Monroe Street, Tallahassee Florida 32399-l300 (850) 488-7631

HCO 99-05 OCTOBER 6,1999

To: The Honorable Elaine Bloom, 106th District Prepared by: Tom Tedcast/e, General Counsel Richard Hixson, General Counsel

You have requested our opinion pursuant to Rule 32 of the Rules of the Florida House of Representatives as to whether the provisions of Rule 26(b) apply to the acceptance and solicitation of campaign contributions for federal office. It is our opinion that they do not.

Rule 26(b) prohibits a Member of the Florida House of Representatives from soliciting or accepting a campaign contribution during the 60-day regular session of the Florida House of Representatives. While on its face, the rule, which has been in existence since 1994, would appear to apply to candidates for any office, case law leads us to the conclusion that it must be interpreted only to apply to candidates for state and local offices.

The specific question which you raise has been decided in 1996 by the United States Court of Appeals, 11th Circuit, which is the federal appellate court having jurisdiction over the State of Florida. In the case of Teper v. Miller, 82 F.3d 989, the court considered a Georgia statute which, like Rule 26(b), prohibited Members of the Georgia General Assembly from accepting campaign contributions during a session of the Legislature. In that case, the court held that to the extent the Georgia law was intended to apply to candidates for federal office, it was preempted by federal law and could not be enforced.

Accordingly, it is our opinion that, notwithstanding the existence of Rule 26(b) of the Rules of the Florida House of Representatives, a Member of the Florida House of Representatives who is a candidate for federal office may, if he or she so chooses, solicit and accept campaign contributions during the 60-day Regular Session of the Florida Legislature. Candidates for office other than federal offices, however, are still subject to the prohibitions of Rule 26(b).

HCO 00-01-MARCH 1, 2000

To: The Honorable Lois Frankel Representative, 85th District From: Tom Tedcast/e, General Counsel

You have asked for an opinion, pursuant to Rule 32 of the Rules of the Florida House of Representatives as to whether Rule 26(b)of those rules prohibits a Member of the Florida House of Representatives, during the 60-day regular session, from soliciting campaign funds for congressional candidates, for candidates for the Florida Senate who are not present Members of the House of Representatives, and for either a political action committee or committee of continuous existence.

Rule 26(b) of the Rules of the Florida House of Representatives provides that "A Member may neither solicit nor accept any campaign contribution during the 60-day regular legislative session on the Member's own behalf, on behalf of a political party, or on behalf of a candidate for the House of Representatives ... " This rule does not prohibit solicitation of contributions for persons or entities other than existing House Members, candidates for the House of Representatives, and political parties. Additionally, the United States Court of Appeals, 11th Circuit, has ruled that federal law regulating the fund raising for federal offices has preempted any state limitations, including prohibitions on fund raising by state legislators during legislative sessions. Accordingly, your question is answered in the negative.

HCO 00-03-MARCH 10, 2000

To: The Honorable Bill Sublette Representative, District 40 From: Tom Tedcast/e, General Counsel Date

You have requested my opinion pursuant to Rule 32 of the Rules of the Florida House of Representatives as to whether the provisions of Rule 26(b) apply to the acceptance and solicitation of campaign contributions for federal office. It is my opinion that they do not. Rule 26(b) prohibits a Member of the Florida House of Representatives from soliciting or accepting a campaign contribution during the 60-day regular session of the Florida House of Representatives. While on its face, the rule, which has been in existence since 1994, would appear to apply to candidates for any office, case law leads me to the conclusion that it must be interpreted only to apply to candidates for state and local offices.

422 The Capitol, 402 South Monroe Street, Tallahassee Florida 32399-1300 (850) 488-7631

The specific question which you raise has been decided in 1996 by the United States Court of Appeals, 11th Circuit, which is the federal appellate court having jurisdiction over the State of Florida. In the case of Teper v. Miller, 82 F.3d 989, the court considered a Georgia statute which, like Rule 26(b), prohibited Members of the Georgia General Assembly from accepting campaign contributions during a session of the Legislature. In that case, the court held that to the extent the Georgia law was intended to apply to candidates for federal office, it was preempted by federal law and could not be enforced.

Accordingly, it is my opinion that, notwithstanding the existence of Rule 26(b) of the Rules of the Florida House of Representatives, a Member of the Florida House of Representatives who is a candidate for federal office may, if he or she so chooses, solicit and accept campaign contributions during the 60-day Regular Session of the Florida Legislature. Candidates for office other than federal offices, however, are still subject to the prohibitions of Rule 26(b).

HCO 00-04-MARCH 15, 2000

To: The Honorable Willie F. Logan Representative, District 103 From: Tom Tedcastle, General Counsel

You have requested my opinion pursuant to Rule 32 of the Rules of the Florida House of Representatives as to whether the provisions of Rule 26(b) apply to the acceptance and solicitation of campaign contributions for federal office. It is my opinion that they do not. Rule 26(b) prohibits a Member of the Florida House of Representatives from soliciting or accepting a campaign contribution during the 60-day regular session of the Florida House of Representatives. While on its face, the rule, which has been in existence since 1994, would appear to apply to candidates for any office, case law leads me to the conclusion that it must be interpreted only to apply to candidates for state and local offices.

The specific question which you raise has been decided in 1996 by the United States Court of Appeals, 11th Circuit, which is the federal appellate court having jurisdiction over the State of Florida. In the case of Teper v. Miller, 82 F.3d 989, the court considered a Georgia statute which, like Rule 26(b), prohibited Members of the Georgia General Assembly from accepting campaign contributions during a session of the Legislature. In that case, the court held that to the extent the Georgia law was intended to apply to candidates for federal office, it was preempted by federal law and could not be enforced.

Accordingly, it is my opinion that, notwithstanding the existence of Rule 26(b) of the Rules of the Florida House of Representatives, a Member of the Florida House of Representatives who is a candidate for federal office may, if he or she so chooses, solicit and accept campaign contributions during the 60-day Regular Session of the Florida Legislature. Candidates for office other than federal offices, however, are still subject to the prohibitions of Rule 26(b).

422 The Capitol, 402 South Monroe Street, Tallahassee Florida 32399-1300 (850) 488-7631

Florida House of Representatives

Marco Rubio, Speaker Office of the General Counsel

Jeremiah M. Hawkes General Counsel

FORMAL OPINION 07-01

To:

Representative Gayle Harrell, District 81

Prepared By: Jeremiah Hawkes, General Counsel

Date: February 1,2007

Re: Solicitation of Funds for Congressional Campaigns

You inquired whether House Rule 15.3(b) prevents members from soliciting funds for their own congressional campaign.

Rule 15.3(b) reads:

A member may neither solicit nor accept any campaign contribution during the 60-day regular legislative session or any extended or special session on the member's own behalf, on behalf of a political party, on behalf of any organization with respect to which the member's solicitation is regulated under s. 106.0701, Florida Statutes, or on behalf of a candidate for the House of Representatives; however, a member may contribute to the member's own campaign.

This rule was passed during the 1994 regular session as House Rule 5.8(b). The only major change between the current rule and that rule is the third provision which bans soliciting "on behalf of any organization with respect to which the member's solicitation is regulated under s. 106.0701, Florida Statutes." Section 106.0701 does not apply in this instance as subsection 106.0701(5) makes clear this section does not apply to an individual acting on behalf of his or her campaign. Therefore, for purposes of this opinion, the rule has much the same meaning today as it did then.

The rule has roots in earlier efforts to curtail solicitation by members. The first such effort was in 1989 when the legislature passed Section 106.08(8), Florida Statutes (1989), which provided:

A candidate who is running for legislative office or a statewide office, except a candidate for a vacant office being filled by special election, may not accept or solicit any campaign contribution during a regular or special session of the legislature.

422 The Capitol, 402 South Monroe Street, Tallahassee Florida 32399-1300 (850) 488-7631

Chapter 106 is limited to elections to public office as defined in the statute, which are any state, county, municipal, or school or other district office or position which is filled by vote of the electors. Federal offices such as congress are not covered by Chapter 106.

Section 106.08(8) was declared unconstitutional by the Florida Supreme Court in State v. Dodd, 561 So.2d 263 (Fla. 1990). The Court however noted that legislators could be prohibited from accepting contributions during session through use of legislative rules. Ibid at 266.

Using Dodd as a guide the 1994 House amended the rules to prohibit the solicitation of contributions during session. See Journal of the House of Representatives, February 8, 1994 pp. 7-9. While the rule does not give specific definitions like Chapter 106, the rule uses the same terms as the statute and there is no suggestion that rule was intended to regulate any contributions that are not already regulated by the statute. Indeed the Members indicated that their intent was to have a permissible form of the regulation that is disallowed by Dodd. Thus, it follows that the rule also does not apply to federal elections.

There are at least four previous formal House opinions that opine, as this one does, that Members are not prohibited from soliciting funds for federal office during the session. (99-05, 00-01, 00- 03, and 00-04) Those opinions have two important distinctions. First they presuppose that the rule is designed to prohibit soliciting for federal campaigns, which as outlined above does not appear to be the case. Second, they conclude that such a prohibition would be preempted by federal law. In reaching this conclusion they rely on Teper v. Miller, 82 F.3d 989, (11th Cir. 1996), which held that a Georgia statutory provision which specifically barred sitting legislators who were candidates for federal office from raising money during session was preempted by federal law regulating the solicitation of funds by candidates for federal office. Previous House opinions reasoned that preemption would apply to legislative rules of procedure the same way it does to statutory provisions.

Teper would be binding precedent in Florida because Florida is in the Eleventh Circuit. However, no other court seems to have dealt with the issue since Teper and it was not a unanimous decision. Also, there does not seem to be any case that invalidates a legislative rule of procedure because of the preemption doctrine. Parliamentary bodies are given a wide range of discretion when it comes to governing the behavior of their members that can go beyond what can be regulated by statute. If a body did regulate such solicitations through rule, then reliance on Teper would be a gamble; both that Teper would both be upheld and that federal preemption would be found to apply to legislative rules.

While Rule 15.3(b) does not appear to apply in this instance, Rule 15.3(a) does. Rule 15.3(a) provides:

A member may not accept anything that reasonably may be construed to improperly influence the member's official act, decision, or vote.

The fact that a solicitation was made during session could increase the likelihood that it would be perceived as influencing the member's vote. Members have chosen in the past to act with prudence by not taking any contributions from persons registered to lobby before the House, allowing others to solicit the funds or by not accepting contributions during session.

Therefore, a Member of the House may solicit funds during session to run for a federal office if

422 The Capitol, 402 South Monroe Street, Tallahassee Florida 32399-1300 (850) 488-7631

he or she is properly qualified.

This opinion is prepared in accordance with House Rule 15.8. Pursuant to that rule this opinion could be subject to revision.

cc: Office of the Speaker

Rules & Calendar Council Committee on Ethics & Elections Commission on Ethics

Steven Kahn, Senate Counsel Office of the Clerk

Majority Office

Minority Office

422 The Capitol, 402 South Monroe Street, Tallahassee Florida 32399-1300 (850) 488-7631

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