Federal Election Commission Main Page
May 12, 1978
AO 1978-24
Gerald J. Neely, Jr.
Attorney at Law
2525 Sixth Avenue North
Billings, Montana 59101
Dear Mr. Neeley:
This refers to your letter of March 31, 1978,
requesting an advisory opinion on behalf of the Sonneland
for Congress Committee of the 5th District of the State
of Washington ("the Committee") concerning preemption
by the Federal Election Campaign Act of 1971, as amended
("the Act") of a Washington statute relating to political
advertising.
You refer to 2 U.S.C. SS 453 which provides that
the Act and regulations prescribed thereunder "supersede
and pre-empt any provision of state law with respect
to election to Federal office." You ask whether SS 453
should be interpreted to mean that a Washington statute
requiring party designation on all campaign advertising 1/
is superseded and preempted by the Act and Commission
regulations as they pertain to the required sponsorship
statements and notice of availability of campaign
finance reports. See 2 U.S.C. SS 435(b) and 441d. See
also Commission regulations of 11 CFR 102.13 and 110.11.
Neither the Act nor Commission regulations require
candidates for Federal office to disclose their political
party affiliation on their campaign advertising. The
issue thus presented is whether the cited Washington
statute is preempted and superseded by 2 U.S.C. SS 453
1/ Chapter 29.85.270 of the Washington Revised Code, 1974 states in
pertinent part:
"If a candidate or candidates run for partisan political office,
they and their sponsors shall also designate on all such political
advertising clearly in connection with each such candidate
the party to which each such candidate belongs."
and Commission regulations at 11 CFR 108.7(b).
The supremacy clause of the Constitution requires
that where there is a clear collision between State
and Federal law, or a conflict between Federal law
and the application of an otherwise valid State enactment,
Federal law will prevail. Hamm v. City of Rock
Hill, 379, U.S. 306, 311-312 (1964). It will not be
presumed that a Federal statute was intended to supersede
the exercise of a given power by a State unless
there is a clear manifestation of intention to do so,
since the exercise of Federal supremacy will not lightly
be presumed. Schwartz v. State of Texas, 344 U.S.
199, 202-203 (1952).
It is clear that Federal law occupies the field
"with respect to reporting and disclosure of political
contributions to and expenditures by Federal candidates
and political committees, but does not affect State
law as to the manner of qualifying as a candidate,
or the dates and places of election."2/ The House
Report goes on to state that "[t]he provisions of the
conference substitute make it clear that the Federal
law occupies the field with respect to criminal sanctions
relating to limitations on campaign expenditures, the
sources of campaign funds used in Federal races, the
conduct of Federal campaigns, and similar offenses,
but does not affect the States' rights to prohibit
false registration, voting fraud, theft of ballots,
and similar offenses under State law"3/ (Emphasis added)
The sponsorship statements and notices of the
availability of campaign finance reports, which are
required by 2 U.S.C. SS 435(b) and SS 441d to be included
on the political advertising of candidates for Federal
office, are an integral part of the scheme prescribed
by the Act for effecting full disclosure. In light
of stated Congressional intent that the Act preempt
State law as to required disclosures in conducting
2/ House Report of the Committee on Conference on the Federal
Election Campaign Act Amendments of 1974 (Report No. 93-1438,
93d Cong., 2d Sess., 100-101, 1974).
3/ Ibid, at 69.
political campaigns for Federal office, the Commission
concludes that the provisions of 2 U.S.C. SS 435(b) and
SS 441d (and Commission regulations cited above) would
supersede and preempt the cited Washington statute
requiring designation of party affiliation on all campaign
advertising.
This response constitutes an advisory opinion
concerning application of a general rule of law stated
in the Act or prescribed by Commission regulation to
the specific factual situation set forth in your request.
See 2 U.S.C. SS 437f.