Can South Carolina's Ethics Commission require a political party to report its operating account under section 8-13-1308(G)?

Plain-English summary

A 2019 Attorney General opinion questioned enforcement of a campaign reporting provision against political parties but also said, without analysis, that reporting a party's operating account raised no constitutional issue. Representative Brandon Newton asked the office to revisit that last statement. The 2026 opinion withdraws it and suggests that section 8-13-1308(G) not be enforced at all until the General Assembly clarifies the law.

The provision calls for a single "certified campaign report" that includes contributions available for operating expenses. The Attorney General reasoned that an operating account can pay for issue advocacy, such as leaflets about legislation, as well as routine costs. The statute gives no instruction for separating those uses. The opinion applies the federal district court's reasoning in South Carolina Citizens for Life, Inc. v. Krawcheck: compelled disclosure must concern activity that is "unambiguously campaign related." It concludes that operating-account disclosure under the current wording carries the same First Amendment concern as the campaign-account disclosure considered in 2019.

The opinion acknowledges its own error. The earlier statement that operating-account reporting "raises no constitutional issue" was an aside on a question the Ethics Commission had not asked. The Attorney General expressly revokes that statement. Its recommendation about enforcement is the Attorney General's view of the statute and constitutional risk, not a court judgment striking down section 8-13-1308(G).

What this means for you

Political parties and party treasurers

The opinion addresses operating-account disclosure under section 8-13-1308(G), not only campaign-account disclosure. It says operating funds can support issue advocacy and concludes that the statute does not provide a meaningful way to separate that activity in a required report. The Attorney General suggests no enforcement of the provision until the legislature clarifies it.

State Ethics Commission

The Attorney General revokes the 2019 opinion's suggestion that operating-account reporting presents no constitutional issue. The 2026 opinion directs its request for clarification to the General Assembly, rather than the Commission, and suggests that section 8-13-1308(G) remain unenforced in the meantime.

Legislators

The opinion identifies the missing distinction: the statute requires a certified campaign report but gives no direction for separating a party's issue advocacy from campaign-related activity paid for through its operating account. The Attorney General says legislative clarification is needed before enforcement.

Common questions

Q: Did the Attorney General change its position on political parties' operating-account reports? A: Yes. The office expressly revoked its 2019 statement that requiring those reports raised no constitutional issue. It now suggests that section 8-13-1308(G) not be enforced at all under its current language.

Q: Why would an operating-account report implicate political speech? A: The opinion says a party may pay for advocacy about legislation from the same account that covers ordinary operating costs. The statute does not tell the Commission how to separate issue advocacy from campaign-related activity for a compelled report.

Q: Does the opinion say the Ethics Commission can require a separate operating-expense report? A: No. The opinion notes that section 8-13-1308(G) calls for a single certified campaign report and supplies no further instruction. It rejects the 2019 aside that operating-account disclosure was constitutionally unproblematic.

Q: Did a court invalidate the reporting provision?
A: This is an Attorney General opinion. It draws on Krawcheck, which held a different definition in the state law facially unconstitutional, and advises against enforcing section 8-13-1308(G) until lawmakers clarify its application.

Background and statutory framework

Section 8-13-1308(G) requires covered entities, including political parties, to file a "certified campaign report" and include contributions that may pay operating expenses. The Attorney General finds no additional statutory guidance on how to treat operating expenses that support issue advocacy.

The office's June 4, 2019 opinion relied on South Carolina Citizens for Life, Inc. v. Krawcheck, 759 F. Supp. 2d 708 (D.S.C. 2010), which found the law's definition of "committee" in section 8-13-1300(6) facially unconstitutional. The 2026 opinion quotes Krawcheck for the proposition that only "unambiguously campaign related communications" bear a close enough relationship to the government's anti-corruption interest to be regulated. The Attorney General says the same difficulty arises when an operating account pays for issue advocacy.

Citations and references

• S.C. Code § 8-13-1308(G) (certified campaign report and operating-expense contributions)
• S.C. Code § 8-13-1300(6) (definition of "committee" discussed in Krawcheck)
• South Carolina Citizens for Life, Inc. v. Krawcheck, 759 F. Supp. 2d 708 (D.S.C. 2010)
• South Carolina Attorney General opinion, June 4, 2019, cited in the 2026 opinion as 2019 WL 3243935

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-revisiting-a-prior-opinion-of-this-office-regarding-the-constitutionality-of-enforcing-certain-provisions-of-south-carolina-ethics-government-accountability-and-campaign-reform-act-of-1991/
• Original PDF: https://www.scag.gov/media/3mhpxy2k/newton-final-10-12-26.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

October 12, 2026

The Honorable Brandon M. Newton
South Carolina House of Representatives
518-B Blatt Bldg.

Columbia, SC 29201

Dear Representative Newton:

You have asked for a follow up to our June 4, 2019, opinion regarding “the constitutionality of enforcing certain provisions of the South Carolina Ethics, Government Accountability, and Campaign Reform Act of 1991... with regard to political parties, as that term is defined in the Act.” In that opinion, there was a statement made in passing which has caused confusion.

Our 2019 opinion relied upon South Carolina Citizens for Life, Inc. v. Krawcheck, 759 F. Supp. 2d 708 (D.S.C. 2010). In Krawcheck, Judge Wooten held that the Act’s definition of “committee” (§ 8-13-1300(6)), “simply swe[pt] too far and was facially unconstitutional in violation of the First Amendment.” 759 F. Supp. 2d at 720. The Krawcheck Court emphasized that “only unambiguously campaign related communications have a sufficiently close relationship to the government’s acknowledged interest in preventing corruption to be constitutionally regulable.” Id. at 714 (internal quotations omitted).

The 2019 opinion further stated the following:

Political parties have a unique role in serving the principle of open, robust debate on public issues; they exist to advance the members’ shared political beliefs... A political party has its own traditions and principles that transcend the interests of individual candidates and campaigns; but in the context of particular elections, candidates are necessary to make the party’s message known and effective, and vice versa.... While clearly a party’s campaign account is most often used for the nomination or election of a candidate, that is only one “main purpose” for its use. Such account also may be used for issue advocacy. Where the election of or defeat of a candidate is not the “main purpose,” but instead influencing elections are “a major purpose,” a statute may well violate the First Amendment.

Op. S.C. Att'y Gen., 2019 WL 3243935 at *21 (June 4, 2019). Your letter notes that, following Krawcheck, “the Ethics Commission ceased all enforcement of § 8-13-1308(G) as applied to political party campaign accounts but continued to require operating expense reports from political parties under § 8-13-1308(G).” According to your letter, “[s]ince the 2019 opinion, the Ethics

Representative Brandon Newton
Page 2
October 12, 2026

Commission has continued to require operating account disclosures from political parties.” You state that “[i]t is still an open question whether § 8-13-1308(G), which requires only a single ‘certified campaign report’ permits the Ethics Commission to require a report for only operating expenses when you have opined that § 8-13-1308(G) is likely unconstitutional and best left unenforced.” Your analysis is correct.

The problem raised by the 2019 opinion is not the opinion’s conclusion, but the brief comment therein that the Ethics Commission may continue to enforce § 8-13-1308(G) with respect to a political party’s operating account. Section 8-13-1308(G) simply states in pertinent part that entities, such as a political party, must “file a certified campaign report” and include “...contributions received which may be used for the payment of operating expenses...” No further guidance is given by that provision.

Our bare statement in the 2019 opinion was that such provision “raises no constitutional issue.” Op. S.C. Att’y Gen., 2019 WL 3243935 at *8 (June 4, 2019). As has been correctly pointed out to us, this statement was made with no analysis, and was far from the opinion’s central conclusion. The Ethics Commission did not seek an opinion on this question. Yet, we appeared to opine upon a question not asked, but with no analysis. This was erroneous on our part.

You now ask that we review this question. Having considered the issue, we conclude that disclosure of a political party’s operating account raises many of the same constitutional questions discussed at length in our 2019 opinion and runs the same constitutional risks without clarification from the General Assembly. In other words, it is impossible, based upon the current language of § 8-13-1308(G), to separate constitutional uses of a political party’s operating account from unconstitutional ones. As Krawcheck made clear, “only unambiguously campaign related communications have a sufficiently close relationship to the government’s acknowledged interest in preventing corruption to be constitutionally regulable.” 759 F. Supp. 2d at 714. Yet, § 8-13- 1308(G) is vaguely worded and offers no instruction as to how a party may segregate any issue advocacy activities which might be included as part of its operation expenses account.

Of course, a political party possesses fundamental First Amendment rights, just as others do. See Op. S.C. Att’y Gen., 2019 WL 3243935 at 8 (June 4, 2019). See also National Republican Senatorial Committee v. Fed. Election Comm., 146 S. Ct. 2404 (2026) [federal limits on political parties’ “coordinate expenditures” with candidates violates First Amendment, overruling Fed. Election Comm. v. Colorado Repub. Fed. Campaign Comm., 533 U.S. 431 (2001)]. Thus, punishing a political party’s issue advocacy invokes fundamental First Amendment concerns. Op. S.C. Att’y Gen., 2019 WL 3243935 at 21 (June 4, 2019). Applying this rule, it is easy to envision that a party may, in some instances, employ its operating account or operating expenses for issue advocacy purposes as well as for the election of candidates. Not only is an operating account used to “keep the lights on” and paying staff, but the party might easily prepare flyers or leaflets in support of or opposition to a particular piece of legislation its members might support or oppose,

Representative Brandon Newton
Page 3
October 12, 2026

paid wholly from its operating account. As we stated in the 2019 opinion, “[f]or one thing, contributions to a political party’s campaign account... may be used for issue advocacy as opposed to the nomination or election of a candidate.” The same is true with respect to the party’s operating account.

There is, under present circumstances, simply no meaningful way to separate the wheat from the chaff, so to speak—no meaningful way to segregate constitutional activity from protected expression in a party’s disclosure of its operating account. Political expression is, of course, afforded “‘the broadest expression’ under the First Amendment.” Fusaro v. Cogan, 930 F. 3d 241, 251 (4th Cir. 2019) (quoting McIntyre v. Ohio Elections Comm., 514 U.S. 334, 336 (1995)). Clearly, a political party’s operating account may be used to support issue advocacy, as well as the more routine costs and expenditures. As one court has stated, “...the court cannot separate constitutional applications to save a portion of the statute.” United Food & Commercial Worker’s Local 99 v. Bennett, 934 F. Supp. 2d 1167, 1206 (D. Ariz. 2013). And, as the Fourth Circuit found in N.C. Right to Life. Inc. v. Leake, 525 F. 3d 274, 284 (4th Cir. 2008), “[e]ven if some regulable speech falls within the ambit of... [the statute in question there], the statute’s open-ended terms do not lend themselves to a principled construction....” Further, as Leake emphasized, and as is the case with regard to § 8-13-1308(G), the statute “threatens to regulate the ordinary political speech that is democracy’s lifeblood.” Id.

Thus, while our 2019 opinion suggested that no constitutional issue was raised by a political party’s being required to report its operating account, such a suggestion was a mistake and we today revoke it. Again, in the words of Krawcheck, compelled disclosure of activity in order to be constitutional, must be “unambiguously campaign related” activity. Unless and until the General Assembly—not the Ethics Commission—clarifies this situation, and finds a way to separate what is constitutional activity from issue advocacy even in a political party’s operating account, we suggest that § 8-13-1308(G) not be enforced at all.

I trust that this clarifies your issue.

obert D.
Solicitor General