holding that “political activity,” as used and defined in Ala.Code § 17 — 17—5(b)(1), “embraces more than electioneering”
How later courts described this case
- holding that “political activity,” as used and defined in Ala.Code § 17 — 17—5(b)(1), “embraces more than electioneering”
- clarifying that the Act only reached government-facilitated payments
Written by the judges who cited it.
The opinion
SHAW, Justice
(concurring in the result).
I concur only with the main opinion’s summation of the answers to the certified questions regarding Ala.Code 1975, § 17-17-5:
“1. The ‘or otherwise’ language in the Act is limited to the use of State mechanisms to make payments to organizations that use at least some portion of those payments for political activity.
“2. The term ‘political activity’ is not limited to electioneering activities, i.e., activities undertaken in support of candidates for elected offices.”
144 So.3d at 278. I write specially to note the following regarding the second question and the State’s argument regarding that question.
The definition of “political activity” in Ala.Code 1975, § 17-17-5, is much broader than simple electioneering. For example, it is defined generally as “[ejngaging in ... any form of political communication.” § 17-17-5(b)(l)c. This language on its face is broad and is not limited to electioneering. The definition then notes that this general definition includes the specific example of electioneering-type communications: “including communications which mention the name of a political candidate.”
If “political activity” encompassed only electioneering, then the general definition — “any form of political communication” — is superfluous, because the subsequent specific example would be the only form of communication forbidden. In other words, why would § 17-17-5(b)(l)c, state that “any form of political communication” is political activity if its true scope was more limited, and it forbade only the electioneering activity given in the example of what is “included,” i.e., “communications which mention the name of a political candidate [electioneering communications].” The general definition of “political activity” is no definition at all if it is limited to only what it stated was “included” as part of the definition.
*280 Other definitions provided in § 17-17-5(b)(1) also appear broader than mere electioneering. Subsection a. includes as political activity contributing to or contracting with “any entity” engaged in “any form” of political communication. Subsection b. includes “public opinion polling,” which reaches far beyond electioneering. The subsections go on to define “political activity” as engaging in “any” type of political advertising, telephone calling for “any political purpose,” and distributing political literature of “any type.” These on their face are clearly not activities that are limited to electioneering. To the contrary, it appears that the Code section encompasses not only activities that can be characterized as electioneering, but also activities that can be characterized as “issue based” or “issue driven.”
The State cites an attorney general opinion, Op. Att’y Gen. No. 2003-232 (August 28, 2003), that purportedly defines “political activity” or at least allegedly assists in determining the proper definition. That opinion relied on this Court’s decision in Hudson v. Gray, 285 Ala. 546 , 234 So.2d 564 (1970). However, I believe that such reliance was misplaced. Specifically, Hudson involved a declaratory-judgment action seeking the determination whether an un-codified local act prohibited certain Birmingham city employees from taking part in “any Political campaign.” The applicable portion of the law being construed, Act No. 248, Ala. Acts 1945, § 25 at p. 399, found in Vol. 14, Appx., § 669, Ala.Code 1940 (Recomp. 1958), provided that “[n]o employee shall be a member of any national, state, or local committee of a political party, or an officer of a partisan political club, or a candidate for nomination or election to any public office, or shall take any part in the management or affairs of any political party or in any political campaign.” It does not use the phrase “political activity,” which phrase appears only in the title of the Code section. The employees wished to petition the city by an initiative under Title 62, § 636, Ala.Code 1940 (Recomp. 1958), but were advised that such activity would violate § 669. This Court attempted to harmonize § 636 and § 669 as follows: “[W]e think it compatible with the operation of both statutes to conclude that circulating and filing the petition as a condition precedent to engaging the power of initiative action is not to be construed as political activity or taking part in a political campaign under the civil service law, § 669.... ” 285 Ala. at 549 , 234 So.2d at 566-67 (citations omitted).
Hudson’s extrapolation of the phrase “political activity” is defined in the context of “the civil service law, § 669.” Essentially, the Court was using the term “political activity” as a synonym for “political campaign,” the term actually used in § 669. Hudson was not providing a general definition of the term “political activity.” Thus, I see little support in Hudson for the State’s suggested definition of “political activity” found in § 17-17-5.