Federal Election Commission Main Page
May 13, 1980
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1980-47
Dennis M. Devaney
Randall, Bangert & Thelan
1625 K Street, N.W.
Washington, D.C. 20006
Dear Mr. Devaney:
This is in response to your letter of April 23, 1980,
requesting an advisory opinion on behalf of the Conroy for
U.S. Senate Committee ("the Committee") concerning preemption
by the Federal Election Campaign Act of 1971, as amended
("the Act") of a Maryland statute which prohibits payments
for "walk around services" on an election day.
Your letter states that the Committee has received
several inquiries regarding the possibility of providing
compensation and expenses to campaign workers engaged in
distributing campaign literature, sample ballots, or other
campaign material; transporting voters to the polls; manning
phone banks; serving as poll watchers; and other legitimate
campaign functions. The Committee would perform such
services during the period between the Maryland primary held
on May 13, 1980 and election day. You note that Article 33
§26-9.1 of the Maryland Code, effective July 1, 1979,
prohibits the payment by a candidate or his committee of
monies for "walk around services" or any other services as a
poll worker or distributor of sample ballots performed on the
day of election. You ask:
1} Whether payment of compensation and expenses to
campaign workers for election services described
above is a permitted expenditure under the Act,
and;
2) Whether the Act preempts Maryland Code Article 33
§26-9.1 with respect to pre-election and
particularly election day activities of campaign
workers for Federal candidates who would receive
compensation and expenses for services described
above.
The Commission notes that Maryland Code Article 33
§26-9.1(a) provides:
No candidate, slate of candidates, political
committee, political party, or any person acting on
behalf of any of the foregoing, may at any time,
directly or indirectly pay, or incur any obligation
to pay, nor may any person receive, directly or
indirectly any sum of money or thing of value in
return for a political endorsement or for
walk-around services or any other services as a
poll worker or distributor of sample ballots,
performed on the day of the election.
"Walk-around services" are defined, in relevant part, in
§§26-9.1(b) and 26-16(a)(7) to include performing the
following activities for money on the day of the election
while the polls are open: distributing to any person any
campaign literature such as pamphlets, circulars, cards,
posters, advertisements, etc. concerning any candidate for
public office; and communicating a voting preference or
choice. The term "election" is defined in §1-1(a)(6) of
Article 33 to include congressional elections. The term
"candidate" is defined in §1-1(a)(4) to include any person
who files a certificate of candidacy for public office, and
§§4A-1 and 4A-2 requires candidates for Federal office,
including congressinal candidates, to file such a certificate
of candidacy. The term "political committee" is defined in
§1-1(a)(14) to include any combination of two or more persons
which promotes the success or defeat of any candidate
submitted to a vote in any election. Thus, the Maryland
statute would purport to apply to the Committee's activities
as described in your request.
With respect to whether the Committee's proposed
payments are permissible under the Act, the Commission has
held on numerous occasions that candidates and political
committees have wide discretion under the Act in deciding
which expenditures will best serve their candidacies. (See
2 U.S.C. §432(e); Advisory Opinions 1978-2, 1978-5, 1977-1,
1976-64, 1980-29, copies enclosed). Similarly, the
Commission concludes that the Act does not prohibit the
Committee's proposed payments as described in your request.
The Commission expresses no opinion as to lawfulness of the
proposed "walk-around services" under Title 18 of the United
States Code or under any other statute over which the
Commission has no jurisdiction.
With respect to whether the Act preempts Maryland Code
Article 33 §26-9.1 as applied to the Committee's proposed
payments for election day services, 2 U.S.C. §453 provides
that the Act and any rules prescribed thereunder "supersede
and preempt any provision of State law with respect to
election to Federal office." The constitutional underpinning
of §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 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).
Commission regulations explain that the Act and
regulations thereunder supersede and preempt State law only
with respect to: the organization and registration of
political committees supporting Federal candidates, the
reporting and disclosure of political contributions and
expenditures to and by candidates for Federal office and
political committees supporting them, and limitations on
contributions and expenditures regarding Federal candidates
and political committees. 11 CFR 108.7(b). The Commission
concludes that the Maryland provisions are not preempted by
the Act. (Compare Advisory Opinions 1978-54, 1978-66,
1978-24, copies enclosed.)
This response constitutes an advisory opinion concerning
application of the Act, or regulations prescribed by the
Commission, to the specific transaction or activity set forth
in your request. See 2 U.S.C. §437f.
Sincerely yours,
(signed)
Robert O. Tiernan
Chairman for the
Federal Election Commission
Enclosures (AOs 1978-2, 1978-5, 1977-1, 1976-64, 1980-29,
1978-54, 1978-66 and 1978-24).
P.S. Chairman Tiernan voted against approval of this opinion
and will file a dissenting opinion at a later date.