TITLE 21 ELECTIONS

Section 5. Ethics in Government, 21-5-1 through 21-5-76.

ARTICLE 2 CAMPAIGN CONTRIBUTIONS

21-5-33. Disposition of contributions.

Contributions to a candidate, a campaign committee, or a public officer holding elective office and any proceeds from investing such contributions shall be utilized only to defray ordinary and necessary expenses, which may include any loan of money from a candidate or public officer holding elective office to the campaign committee of such candidate or such public officer, incurred in connection with such candidate's campaign for elective office or such public officer's fulfillment or retention of such office.
1. All contributions received by a candidate or such candidate's campaign committee or a public officer holding elective office in excess of those necessary to defray expenses pursuant to subsection (a) of this Code section and as determined by such candidate or such public officer may only be used as follows:
  1. As contributions to any charitable organization described in 26 U.S.C. 170(c) as said federal statute exists on March 1, 1986, and which additionally shall include educational, eleemosynary, and nonprofit organizations;
  2. Except as otherwise provided in subparagraph (D) of this paragraph, for transferral without limitation to any national, state, or local committee of any political party or to any candidate;
  3. For transferral without limitation to persons making such contributions, not to exceed the total amount cumulatively contributed by each such transferee;
  4. For use in future campaigns for only that elective office for which those contributions were received.With respect to contributions held on January 1, 1992, or received thereafter, in the event the candidate, campaign committee, or public officer holding elective office has not designated, prior to receiving contributions to which this Code section is applicable, the office for which campaign contributions are received thereby, those contributions shall be deemed to have been received for the elective office which the candidate held at the time the contributions were received or, if the candidate did not then hold elective office, those contributions shall be deemed to have been received for that elective office for which that person was a candidate most recently following the receipt of such contributions; or
  5. For repayment of any prior campaign obligations incurred as a candidate.
2. Any candidate or public officer holding elective office may provide in the will of such candidate or such public officer that the contributions shall be spent in any of the authorized manners upon the death of such candidate or such public officer; and, in the absence of any such direction in the probated will of such candidate or such public officer, the contributions shall be paid to the treasury of the state party with which such candidate or such public officer was affiliated in such candidate's or such public officer's last election or elective office after the payment of any expenses pursuant to subsection (a) of this Code section. Notwithstanding any other provisions of this paragraph, the personal representative or executor of the estate shall be allowed to use or pay out funds in the campaign account in any manner authorized in subparagraphs (A) through (E) of paragraph (1) of this subsection.
Contributions and interest thereon, if any, shall not constitute personal assets of such candidate or such public officer.
1. Contributions received by a campaign committee designed to bring about the recall of a public officer holding elective office or to oppose the recall of a public officer holding elective office or any person or to bring about the approval or rejection by the voters of any proposed constitutional amendment, a state-wide referendum, or a proposed question which is to appear on the ballot in any county or municipal election and any proceeds derived from investing such contributions shall be utilized only to defray ordinary and necessary expenses associated with influencing the voters on such issue.
2. All contributions received by a campaign committee as provided in paragraph (1) of this subsection in excess of those necessary to defray expenses relative to the influencing of voters on such issue as determined by the campaign committee may only be used as follows:
  1. Contributions to any charitable organization described in 26 U.S.C. 170(c) as such federal statute exists on March 1, 1986, and which additionally shall include educational, eleemosynary, and nonprofit organizations; or
  2. For repayment on a pro rata basis to persons making such contributions.

(Code 1981, §21-5-33, enacted by Ga. L. 1986, p. 957, § 1; Ga. L. 1987, p. 458, § 3; Ga. L. 1990, p. 1327, § 1; Ga. L. 1992, p. 1075, § 5.)

Editor's notes.

- Ga. L. 1990, p. 1327, § 2, not codified by the General Assembly, provides that nothing in that Act shall apply to or affect contributions lawfully converted to the personal use of a candidate or public officer prior to April 11, 1990.

Law reviews.

- For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 247 (1992).

JUDICIAL DECISIONS

Relationship to bankruptcy.

- In a case in which the issue was whether the campaign funds of the debtor, a candidate for public office who filed for Chapter 13 bankruptcy without incorporating the campaign, were the property of the bankruptcy estate, the limitation in O.C.G.A. § 21-5-33(c) that campaign funds shall not constitute personal assets was not a restriction on the transfer of a beneficial interest of the debtor in a trust as required by 11 U.S.C. § 541(c)(2). In re Chambers, 451 Bankr. 621 (Bankr. N.D. Ga. 2011).

In a case in which the issue was whether the campaign funds of the debtor, a candidate for public office who filed for Chapter 13 bankruptcy without incorporating the campaign, were the property of the bankruptcy estate, although O.C.G.A. § 21-5-33(a)-(c) restricted use of the campaign funds, the anti-alienation provision in 11 U.S.C. § 541(c)(1)(A) prevented the state law from excluding the funds from becoming property of the estate. In re Chambers, 451 Bankr. 621 (Bankr. N.D. Ga. 2011).

When creditor with general nonpriority unsecured claim for payment for campaign services which the creditor provided to the debtor sought priority status, the Georgia Ethics Act, O.C.G.A. § 21-5-1 et seq., did not provide the creditor with a lien on the campaign funds and, even if Georgia law purported to establish the priority of the claim over others, that state statute would be preempted by the Bankruptcy Code. Rosetta Stone Communs., LLC v. Gordon (In re Chambers), 500 Bankr. 221 (Bankr. N.D. Ga. 2013).

Cited in Georgia State Conference of NAACP Branches v. Cox, 183 F.3d 1263 (11th Cir. 1999); Oxendine v. Gov't Transparency & Campaign Fin. Comm'n, 341 Ga. App. 901, 802 S.E.2d 310 (2017).

OPINIONS OF THE ATTORNEY GENERAL

Section applicable to campaign committees.

- A campaign committee which is formed for the purpose of accepting contributions for, making contributions to, or making expenditures on behalf of a candidate, is subject to the requirements of O.C.G.A. § 21-5-33 relative to the disposition of excess contributions in the same manner as a candidate's campaign committee. 1987 Op. Att'y Gen. No. 87-26.

Compensation of secretary for political action committee.

- A secretary who maintains the records of a political action committee may be compensated from committee funds under state law since the provisions of O.C.G.A. § 21-5-33 which limit the distribution of funds received by the candidate and campaign committees would not apply to political action committees and, even assuming that they did, the funds can be utilized to defray ordinary and necessary expenses involved in a campaign. 1987 Op. Att'y Gen. No. 87-18.

Distribution of campaign contributions for future campaigns.

- Elected officials may distribute campaign contributions in excess of those necessary to defray expenses to a national, state, or local committee of their political party for use in future campaigns, as long as the transfer is not made for the purpose of avoiding the restrictions contained in O.C.G.A. § 21-5-33. 1992 Op. Att'y Gen. No. U92-18.

Use of campaign contributions for political advertising.

- There is no prohibition on the use of campaign contributions for political advertising in publications. 1992 Op. Att'y Gen. No. U92-18.

Campaign contributions and nonprofit organizations.

- Nonprofit organizations may receive those campaign contributions which are in excess of those necessary to defray expenses. 1992 Op. Att'y Gen. No. U92-18.

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