Oregon Advisory Opinions October 25, 1967: OAG 67-154 (October 25, 1967)
Collection: Oregon Attorney General Opinions
Docket: OAG 67-154
Date: Oct. 25, 1967
Advisory Opinion Text
OAG 67-154.
The term "legally qualified candidate," under Oregon statutes, would mean a candidate who has filed a declaration or petition of candidacy pursuant to law, and also may include a candidate who is actually waging a "write-in" campaign.
Secretary of State
You advise as follows:
"In a letter dated September 7, 1967 from the Federal Communications Commission (FCC), it was brought to our attention a
possible controversy arising from a television broadcast over station KGW-TV. The program was entitled 'Advice and Dissent.' The subject of the program was Senator Wayne Morse. The conflict arises when Mr. McAlmond [Phil McAlmond, who on May 23, 1967 formally declared himself a candidate for the Democratic nomination for United States Senator pursuant to the provisions of ORS 240.210] contends that both he and Senator Morse are 'legally qualified' candidates for the Democratic nomination of United States Senator from Oregon and therefore, he, Mr. McAlmond, is demanding equal time on station KGW-TV. A copy of the letter from the FCC is enclosed for your reference and study.
"The McAlmond contention is contained in paragraph three of the FCC letter and is as follows.
" 'Mr. McAlmond contends, inter alia, that on the dates of the subject broadcasts he and Senator Morse were legally qualified candidates for the Democratic nomination for the Office of United States Senator. He asserts that he and the Senator were actively campaigning before that date. Station KGW-TV in turn asserts that Senator Morse had not at that date 'formalized his candidacy.' It contends that on July 2, 1967 there was no candidate for the Democratic Senatorial nomination and there was no campaign. The determination as to whether Mr. McAlmond and Senator Morse were legally qualified candidates for the same public office on June 28 and July 2, 1967 is one of the matters which must be resolved before the Commission may decide as to the merits of the complaint. Such a determination must necessarily turn on an interpretation of the Oregon State election laws. The Commission has consistently taken the position that, absent a judicial determination, a decision by the appropriate State official as to whether an individual is a legally qualified candidate for public office will prevail. * * *' "
You enclose copies of newspaper articles supplied by Mr. McAlmond to the Federal Communications Commission in which it is said that Senator Morse is "campaigning," and also a copy of a telegram from Senator Morse to Mr. McAlmond which includes the statement that "* * * I [that is, Senator Morse] shall be a candidate next year for the Oregon Democratic nomination to the Senate."
47 U.S.C.A., § 315 (the "equal time law"), provides:
"(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any---
"(1) bona fide newscast,
"(2) bona fide news interview,
"(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
"(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),
shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.
"(b) The charges made for the use of any broadcasting station for any of the purposes set forth in this section shall not exceed the charges made for comparable use of such station for other purposes.
"(c) The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section." (Emphasis supplied)
You state that you answered the Federal Communication Commission's inquiry on September 13, 1967, the part of your reply material here, being as follows:
"An individual, whether or not an incumbent office holder, in order to formalize or legalize his candidacy for a public office must file with the office of the Secretary of State a petition or declaration of nomination or at some time prior to a primary election openly and publicly declare his candidacy and to urge the electorate of his party to 'write-in' his name on the ballots.
"At the present time and to the knowledge of this office, Senator Wayne Morse has not done any of the above three listed acts which would formalize or legalize his candidacy for the nomination to the office of United States Senator."
You concluded, therefore, that on June 28 and July 2, 1967, Senator Morse was not a "legally qualified candidate" for the Democratic nomination for United States Senator as stipulated in 47 U.S.C.A., § 315, supra.
You further state that the Federal Communications Commission has now requested that you ask this office whether, in our opinion, your answer to the commission's inquiry was correct.
At the outset it must be noted that the word "candidate," by itself, as commonly understood has a broad meaning. In McCamant v. Olcott, (1916) 80 Or. 246, 252, 156 P. 1034, the Oregon court was required to rule whether the name of Charles Evans Hughes should appear on the Oregon ballot in the Republican presidential primary. A proper petition to place Mr. Hughes' name on the ballot had been filed with the Secretary of State, but the applicable law spoke only of printing the names of "candidates" on the ballot and Mr. Hughes had
strongly stated to the Secretary of State that he was not a "candidate" for the presidency and requested that his name not appear on the ballot.
The court held that Mr. Hughes was a "candidate" within the meaning of the law despite his disavowal, noting:
"* * * Webster defines a candidate to be:
" '(1) One who offers himself or is put forward by others, as a suitable person, or an aspirant or contestant for an office, privilege, or honor; (2) a person considered worthy or likely to attain some dignity, or come to some place or end.'
" 'The definitions given by other lexicons, including the law dictionaries, are similar to that quoted.
" 'Candidate. One who seeks or aspires to some office or privilege, or who offers himself for the same; a person offering himself to the suffrage of the electors; one put forward for election, whether with or against his own will': 6 Cyc. 345; Regina ex rel. Coyne v. Chisholm, 5 Ont. Prac. 328."
In Starkweather v. Hoss, (1928) 126 Or. 630, 270 P. 768, the court employed the same definition of "candidate" in ruling that a person had been a "candidate" even though he was not legally qualified to hold a party nomination for which he had received the most votes.
The broad, and somewhat vague, general understanding of the word "candidate" has produced conflicting judicial decisions based partly upon the particular court's determination of what is sound public policy. For example, observe the difference in reasoning between the two following cases in deciding who is a "candidate" under statutes requiring reporting of expenditures by "candidates." In Minnesota it was held that an individual is not a "candidate" until he has followed the statutory procedure of formalizing his candidacy because the court believed there was no other workable place in time to draw the line:
"While it is clear, however, that a man may be and usually is a candidate long before he is, and although he may never be, a nominee, the time is wholly uncertain when he becomes a candidate, in the absence of statutory determination of such time. He may in his own mind be in that venturesome state for many years before any one else is apprised of such intention, and in such case his ambition would not make him a candidate. Nor does he become such if he merely counsel with his friends on the subject. His candidacy must be manifested by some act of his own, the gist of which is that he holds himself out as a candidate. Very often he crosses the Rubicon when he publishes his formal announcement in the local press, or to an organization, or in any public manner. This, however, is not ordinarily necessary. He may become a candidate by soliciting votes, without any declaration. Combe v. Pitt, 5 Geo. III, 1 Black, 523; 1 Hawk P.C. 315, note 4. A man may be elected to a public office without ever having been a candidate in the legal sense. * * * It is apparent, in the nature of things, as it is a familiar experience, that, in the absence of statutory prescription on the subject, the time when a man becomes a candidate is extremely vague and indefinite." State v. Bates, (1907) 102 Minn. 104, 107, 112 N.W. 1026, 1027.
The Idaho court, on the other hand, has said that because of the possibility of a "write-in" campaign a person is a "candidate" although he has taken no statutory steps to become so, once he has actively begun to promote himself for office:
"The contention that a person is not a candidate until after he files his nomination papers is not in accord with the clear purpose and intent of the primary election law. It is provided among other things in sec. 14 of said act that a blank space shall be provided under each official heading in order that a voter may write in the name of a candidate for any office. It is possible under that provision for a person to be nominated for an office who has not been nominated by paying the fee or filing a petition as required under the provisions of secs. 6 and 7 of said primary election law and whose name is not printed on the ballot. And in such a case the candidate thus selected must file an itemized statement of expenditures the same as a person whose name has been placed on the primary ballot by filing the required nomination papers and paying the fee by petition.
"As above stated, a person may be a candidate at a primary election whose name is not printed on the ballot. In that case he must secure a sufficient number of electors who will write his name on the ballot on election day to accomplish his nomination. If he succeeds in that manner in securing a sufficient number of votes to nominate him, he will be entitled to have his name certified and placed on the official ballot at the ensuing general election. Such a person would nevertheless be a candidate for nomination and would have become amenable to the requirements of the law, and would no more be allowed to violate the penal provision of the primary law than the man whose name was legally printed on the ballot; still there would be as many opportunities open for the expenditure of money and making promises for the candidate whose name was not printed on the ballot as to the man whose name is printed on the ballot. The law was intended to apply to all persons who may in any way be candidates to be voted for at the primary election and all such are amendable to the provisions of the law. It is clear to us that a man is a candidate for an office at the time he begins to seek such office or lay his plans to procure the nomination for such office." Adams v. Lansdon, (1910) 18 Idaho 483, 503, 504, 110 P. 280, 287.
The Oregon Corrupt Practices Act defines "candidate" in ORS 260.010 (1) as "any person whose name is printed on an official ballot for public office, or whose name is expected to be or has been presented for public office, with his consent, for nomination or election."
This is broad indeed, although at least the unwilling "candidate" would appear to be excluded. (The administrative practice in Oregon, incidentally, has been to require statements of expenditures after an election with respect to those who are considered to have been true "candidates" regarding the expense of their entire campaigns, irrespective of when, or whether or not, formal papers of candidacy were filed.)
But here we are dealing with not just the word "candidate" but the phrase "legally qualified candidate," as provided in 47 U.S.C.A., § 315, supra. The legal work, "Words and Phrases" does not indicate that any court has defined the phrase "legally qualified candidate," although Weiss v. Los Angeles Broadcasting Co., Inc., et al., (C.A. 9th, 1947) 163 F. (2d) 313, 315, in applying the statute recognizes that a "candidate" is not necessarily a "legally qualified candidate."
It could be argued that "legally qualified" is intended to indicate that a "candidate" (in the broad sense) must simply be legally qualified to be elected and hold office or nomination therefor. If this were so, any person in Oregon possessing the legal qualifications for being elected to and for holding an office or a nomination therefor could be considered a "legally qualified candidate" if he expressed a desire to attain such office, because it is not necessary for an individual to take any legal steps in order to qualify himself for nomination or election. This necessarily results from the "write-in" provision in ORS 249.354 (4) of the Oregon primary law which states:
"* * * There shall be left at the end of the list of candidates for nomination for or election to each office a blank space in which the elector may write the name of any person not printed on the ballot for whom he desires to vote. * * *"
Under this reasoning, Senator Morse, in view of his declarations, could be considered as presently a "legally qualified candidate" for the Democratic nomination for United States Senator.
However, we do not take this view. A person possessing legal qualifications to hold an office or nomination therefor and who has merely expressed a desire to win the same may be a "candidate" for some purposes, but we do not accept the reasoning of Adams v. Lansdon, supra, that a "write-in" provision in the law is truly material. All of the evils resulting from an unlegalized candidacy which were apparently considered by the Idaho court in arriving at its decision could just as easily come to pass in a state not providing for "write-ins" but where a person might begin an aggressive campaign before formally declaring for office. (As noted above, Oregon administrative interpretation of the Corrupt Practices Act has guarded against any such abuse so far as requiring reporting of campaign expenditures is concerned.)
Furthermore, the phrase "legally qualified candidate" imports something more than simply "candidate." Oregon statutes specifically provide a legal procedure for becoming a candidate for nomination.
ORS 249.020 (1) provides:
"Any registered elector may become a candidate for the nomination of the major political party with which he is registered as being affiliated for any office for which he is eligible * * * by filing a petition for nomination as provided in ORS 249.020 to 249.110."
ORS 249.210 (1) provides:
"In lieu of the manner provided in ORS 249.020 to 249.110, any registered elector may become a candidate for the nomination of the major political party with which he is registered as being affiliated for any office for which he is eligible * * * by filing a declaration of candidacy as provided in ORS 249.210 to 249.280. * * *"
We do not believe that the provision for "write-in" votes in Oregon law should be held to be so significant as to make a politically active and otherwise qualified person automatically a "legally qualified candidate" merely by beginning to seek a given elective office. The Oregon court has held that the right to "write-in" the name of a person for an office is a constitutional one in any event: Howell v. Bain et al., (1945) 176 Or. 187, 188, 156 P. (2d) 576.
In Adams v. Bolin, (1954) 77 Ariz. 316, 320, 271 P. (2d) 472, 474-475, the court described the function and significance of following the statutory procedure for formally becoming a candidate:
"Let us consider the underlying philosophy and purpose of requiring nomination papers (commonly called nominating petitions). Among the more important functions of the political party is that of supplying candidates for office for the general election. The selection of these candidates is usually done by intra-party caucus, convention, or by primary election, the latter method being used in Arizona. To have one's name printed on the ballot for a primary election, some states require simple filing by the candidate, others require a fee, while many, including Arizona, require nominating petitions signed by a certain number of qualified electors. Thus, broadly speaking, what a primary election is to the general election, the nominating paper is to the primary election. The political theory is that the nominating paper is a mechanism which in some measure weeds out the cranks, the publicity seekers, the frivolous candidates who have no intention of going through with the campaign, and those who will run for office as a lark if there is no
difficulty in being placed on the ballot. A candidate meeting the onerous requirements demonstrates that he is a bona-fide office seeker entitled to a place on the ballot. * * *"
(Arizona, like Oregon, specifically provides for "write-in" votes. See §§ 16.532 and 16.844, Ariz. Rev. Stat.)
The three words co-joined in the phrase "legally qualified candidate" must be considered to mean more than "candidate," and we consider it to mean a candidate who has taken the statutory steps to formalize his candidacy and may also possibly include one who is actively waging a contest for "write-in" votes in a campaign.
We conclude that you are correct in your statement to the Federal Communications Commission that on June 28 and July 2, 1967, Senator Morse was not, under Oregon statutes, a "legally qualified candidate" for the Democratic nomination for United States Senator.
This opinion does not purport to express an interpretation of the "equal time law" as provided in 47 U.S.C.A., § 315, supra. It is not the prerogative of this office to advise federal agencies regarding the meaning of federal law. We have merely expressed our conclusion of what the term "legally qualified candidate" would mean under Oregon law, without benefit of context or other ordinarily available evidence of legislative intent. The responsibility of interpreting the federal statute rests upon the Federal Communications Commission and such interpretation must, of course, be made in accordance with the purpose and intended scope of the law, along with the commission's own regulations.