Federal Election Commission Main Page
September 19, 1978
AO 1978-66
William E. Dannemeyer
Dannemeyer for Congress Committee
1105 E. Commonwealth Avenue, Suite E
Fullerton, California 93631
Dear Mr. Dannemeyer:
This is in response to your letter of August 11, 1978,
requesting an advisory opinion concerning preemption by the
Federal Election Campaign Act of 1971, as amended ("the
Act"), of a California law which prohibits the acceptance
of contributions from registered lobbyists.
Your letter states that you are presently an elected
state officer in California and that you are a candidate
for the United States House of Representatives. You note
that California law 1/ prohibits your receipt of a contribution
from lobbyists registered under California law because
of your position as an elected state officer. You ask
whether these provisions of California law are preempted
by the Act insofar as they pertain to your campaign for
Federal office.
The Act and Commission regulations prescribed thereunder
supersede and preempt any provision of State law with
respect to election to Federal office." 2 U.S.C. SS 453.
1/ California Government Code SS 86202 makes it unlawful for
a lobbyist to make a contribution, or to act as an agent
or intermediary in the making of any contribution to a
state candidate, a committee supporting a state candidate,
or an elected state officer. Furthermore, SS 86204 makes
it unlawful for those persons to "receive any contribution
or gift which is made unlawful by sections 86202 or 86203."
The constitutional underpinning of SS 453 is apparent from
the supremacy clause of the Constitution which 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 supercede 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 Congress intended "to make certain
that the Federal law is construed to occupy the field with
respect to elections to Federal office and that the Federal
law will be the sole authority under which such elections
will be regulated."2/ The Conference Committee 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)
Commission regulations follow these expressions of
legislative intent by explaining that the Act and regulations
thereunder supersede and preempt State law with respect to:
the organization and registration of political committees
supporting Federal candidates, the reporting and and disclosure
of political contributions and expenditures to and by
candidates for Federal office and political committee supporting
them, and limitations on contributions and expenditures
2/ Report of the Committee on House Administration on the Federal
Election Campaign Act Amendments of 1974 (Report No. 93-1239,
93 Cong., 2d Sess. 10, 1974).
3/ Report of the Committee on Conference on the Federal Election
Campaign Act Amendments of 1974 (Report No. 93-1433, 93 Cong.,
2d Sess., 69, 1974). See also pages 100 and 101.
regarding Federal candidates and political committees.
11 CFR SS 108.7(b). Accordingly, since the provisions
of California Government Code SS 86204 are, in effect,
limitations on contributions; the Commission concludes
that these provisions are preempted by the Act insofar
as they might apply to a candidate for Federal office.
This response constitutes an advisory opinion concerning
the application of a general rule of law stated
in the Act or prescribed as a Commission regulation to
the specific factual situation set forth in your request.
2 U.S.C. SS 437f.