State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

A097-11-CD

Number: A097-11-CD

Requested by: Richard "Shane" Wirtz

Prepared by: Jenifer Kohout, Assistant Director

Date issued: June 3, 1997

Subject: Putting up polling signs to test the waters prior to filing a letter of intent

You have asked whether you may make certain campaign-related expenditures before you file for office. Specifically, you say that you "would like to put up some signs that could poll the constituents, to find out what issues are important to them and if they would consider [you] for office." You also indicate that you wish to send a letter to the Alaska Draggers Association regarding your candidacy. You add that you do not want to file a letter of intent at this point.

Short Answer

As currently written, you may not distribute your posters and letters prior to filing for office. The only campaign-related expenditures you may make before filing for office are those for personal travel, opinion surveys or polls. Based on the description you provided to us, your posters and letter are not "opinion surveys or polls." If you change the posters and letters to truly survey the public, you may spend money to produce and distribute them. If you wish to distribute the materials without changes, however, you must first file a "letter of intent" with the Alaska Public Offices Commission (APOC) or a "declaration of candidacy" with the Division of Elections.

Statute and Regulations

AS 15.13.100. Expenditures before filing. A political campaign expenditure may not be made or incurred by a person in an election or by a person or group with the person’s knowledge and on the person’s behalf before the date upon which the person files for nomination for the office which the person seeks, except for personal travel expenses or for opinion surveys or polls. These expenditures must be included in the first report required under this chapter after filing for office.

AS 15.13.400(4). "[E]xpenditure" . . . means a purchase or transfer of money or anything of value, or promise or agreement to purchase or transfer money or anything of value, incurred or made for the purpose of . . . influencing the nomination or election of a candidate or of any individual who files for nomination at a later date and becomes a candidate. . . .

2 AAC 50.380. Early Campaigning. (a) . . . An individual wishing to campaign for state elective office shall comply with AS 15.13.100 by filing a declaration of candidacy with the lieutenant governor or a letter of intent with the commission.

Analysis

Legal Background

Before a candidate may begin making campaign expenditures, he or she must file a "nomination for office." A candidate satisfies this requirement by filing either a "declaration of candidacy" with the Division of Elections or a "letter of intent" with the APOC. See AS 15.13.100; 2 AAC 50.380.

There is an exception to this requirement. An individual deciding whether to run for office may make certain campaign-related expenditures before he or she officially files for office. The exception, however, is a narrow one. It permits only limited kinds of expenditures—specifically, expenditures for "personal travel, opinion surveys or polls." AS 15.13.100.

Your Proposed Polls

In your letter, you state that you wish to distribute posters to "poll the constituents, to find out what issues are important to them and if they would consider [you] for office." You indicate that the posters would say the following:

Shane Wirtz is considering running for the state legislature in ’98. He is a working man, a flight instructor, a boat captain, a tattooist and wants to know what issues are important to you. A legislator should vote as the majority of their constituents want them to vote, period!

This poster is not an "opinion survey." To function as an "opinion survey or poll", a communication must be designed to solicit the opinions of those who receive it. Its primary function must be to educate you about what the public thinks; not for you to educate the public about your positions or experience. Rather than solicit opinions, your proposed poster disseminates information about you and your positions.

Similarly, as currently written, your letter to the Alaska Draggers Association is not an "opinion survey or poll." While the letter indicates that you "would like to know what issues are important to [the Alaska Draggers Association]," the primary focus is to brief the Association on your history and positions. Rather than survey the opinions of potential voters in an effort to determine whether or not your candidacy is viable, the letter serves primarily to promote your campaign. This is particularly evident in the first sentence when you state "[m]y name is Capt R. Shane Wirtz and I plan to run for Alaskan Legislator, District #3 in ’98."

Conclusion

Because the materials you describe are not "opinion surveys," you must first file a "letter of intent" with the APOC or a "declaration of candidacy" with the Division of Elections before you may spend money to distribute them. If, however, you change the posters and letters to truly solicit the opinions of public, you may spend money to produce and distribute them.

The Commission approved this advisory opinion on June 19, 1997. The advice in this opinion applies only to the specific activity for which the advice was requested.

A copy of the original letter requesting the above advisory opinion is available upon request at the Alaska Public Offices Commission. (907) 276-4176.