Federal Election Commission Main Page
July 2, 1981
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1981-27
The Honorable Bill Archer
House of Representatives
Washington, D.C. 20515
Dear Congressman Archer:
This responds to your letter of May 21, 1981, and attachments,
requesting an advisory opinion on your behalf concerning
preemption by the Federal Election Campaign Act of 1971, as
amended (the Act"), of a Houston, Texas ordinance requiring that a
specific "warning" be affixed to all political advertising
materials placed, posted or erected in Houston.
Enclosed with your letter was a copy of the recently enacted
election ordinances which included both the specific "warning"
of concern to you and anti-littering sections. The warning
reads as follows:
"Warning: Placement, posting or erection of this
material within the City of Houston is regulated by
Sections 3-2 and 3-3 of the City's Code of
Ordinances and Chapter 46 of the City's Building Code;
violation thereof is punishable by a fine of up to $200."
Sections 3-2 and 3-3 of the City's Code of Ordinances
prohibit the painting of political advertising matter on curbs,
sidewalks, bridges or public buildings, or the posting of such
advertising matter on utility poles, trees, traffic signs and in any
other public place in the City of Houston. Specifically, you
ask if it will be necessary to affix this warning to all future
political advertising materials used in Houston for Federal
election purposes, or if the Act supersedes this local ordinance.
The Act and regulations prescribed thereunder "supersede
and preempt any provision of state law with respect to election
to Federal office." 2 U.S.C. SS 453. The House Report states in
part 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." */
Commission regulations embody this 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 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).
2 U.S.C. SS 441d and 11 CFR 110.11 require notice of
the identity of the persons who paid for or who authorized
any communication expressly advocating the election or
defeat of a clearly identified candidate. The ordinance's
requirement that the "warning" be affixed to all political
advertising materials in Houston, Texas exceeds the Act's
disclosure requirements. Thus, because of the ordinance's
excessive mandate in this regard, the issue is whether
2 U.S.C. SS 441d of the Act and 11 CFR 110.11 of Commission
regulations supersede and preempt this Houston ordinance.
In Advisory Opinion 1978-24, copy enclosed, the Commission
addressed the relationship of 2 U.S.C. SS 441d to a Washington
State statute requiring party designation on all campaign
advertising. The Commission considered 2 U.S.C. SS 453 and
its legislative history in concluding that 2 U.S.C. SS 441d and
relevant Commission regulations superseded and preempted the
Washington law. The same conclusion for the same reasons was
reached in Advisory Opinion 1980-36 (preemption of an Ohio statute
relating to political communications by 2 U.S.C. SS 441d), copy
enclosed. Thus, the Commission concludes that the Act supersedes and
preempts the Houston ordinance as that ordinance relates to the
physical placement of a "warning" on all political campaign
materials placed, posted or erected in Houston, Texas, with respect
to any election to Federal office. Therefore, it will not be
*/ House Report of the Committee on Conference on the Federal
Election Campaign Act Amendments of 1974 (Report No. 93-1438,
93d Cong., 2d Sess., 69, 1974).
necessary to affix the "warning" to any political advertising
materials used in a Federal election campaign in Houston.
The Commission's approach in this particular opinion and
other opinions concerning the application of 2 U.S.C. SS 453
accords with the Supreme Court's consideration of similar Federal
preemption language in other Federal statutes. For example, in
considering a preemption issue under the Employee Retirement
Security Act of 1974 (ERISA), the Supreme Court reiterated its
long-standing approach to such problems: "[O]ur analysis ... must
be guided with respect to the separate spheres of governmental
authority preserved in our federalist system." Alessi v.
Raybestos-Manhattan, Inc., 49 U.S.L.W. 4503, 4507 (May 18, 1981).
The Court continued with language that has recurred in many
preemption decisions:
[p]reemption of state law by Federal statute or
regulation is not favored 'in the absence of
persuasive reasons - either that the nature of the
regulated subject matter permits no other conclusions,
or that the Congress has unmistakably so
ordained.' Alessi, Id. at 4507 citing
Chicaco & N.W. Transp. Co. v Kalo Brick & Tile Co.,
101 S.Ct. 1124, 1130 (1981) which quotes
Florida Lime & Avocado Growers v. Paul, 373 U.S. 132,
142 (1963).
The Commission, in reaching its conclusion that the Act preempts
the Houston ordinance, wishes to make clear that neither the Act nor
Commission regulations preempt the substance of the anti-littering
ordinances referred to in the warning notice. This conclusion
is based upon Commission regulations which state that: "the Federal
law ... does not affect the States' rights to prohibit false registration,
voting fraud, theft of ballots, and similar offenses under
state law." 11 CFR 108.7(c)(4). The Commission views state or local
regulations and statutes that apply to the placement and location of
campaign advertisements as outside the purview of 2 U.S.C. SS 453,
since they do not relate to identifying the sponsor of the
advertising and thus are not integral to the disclosure purpose that
undergirds 2 U.S.C. SS 441d. Therefore, although the "warning" need
not be affixed to political advertising materials used in a
Federal election campaign, political campaign advertising materials
used in Houston are otherwise subject to the restrictions outlined
in the City's Code of Ordinances.
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. See 2 U.S.C. SS 437f.