Federal Election Commission Main Page
April 17, 1986
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1986-11
Mr. Ronald T. Butler
Deputy Director
Mueller for Congress
11736 Portlew Drive
Newbury, Ohio 44065
Dear Mr. Butler:
This responds to your letter of March 20, 1986, as
supplemented by your letter of March 25, 1986, requesting an
advisory opinion on behalf of the Margaret Mueller for Congress
Committee ("the Committee"),1/ the principal campaign committee
of Margaret R. Mueller, a candidate in the 11th congressional
district of Ohio, concerning preemption by the Federal Election
Campaign Act of 1971, as amended ("the Act"), of a provision of
Ohio law relating to political communications.
You state that your question arises with the Ohio Secretary
of State's office. According to your request, under Ohio
election law the Committee is required to include either the word
"elect" or "for" in its campaign logo.2/ You state that either
"Elect Margaret Mueller Congress" or "Margaret Mueller for
Congress" would satisfy the Ohio requirement, but that the
Committee wishes to use a logo that states simply "Margaret
Mueller Congress." You ask whether the Act preempts application
of Ohio law to the situation you describe.
1/ Although your letters refer to "Mueller for Congress," the
Commission notes that according to a Statement of Organization
and Statement of Candidacy filed on March 31, 1986, Margaret
Mueller for Congress Committee is the principal campaign
committee of Margaret R. Mueller. According to Commission
records, the candidate has no other authorized committees.
2/ The Commission assumes from your request that you have
determined, or been informed by the Ohio Secretary of State, that
the Ohio statute in question is in fact applicable to your
proposed use of the logo contained in your request.
Under SS 3599.091(B)(1) of the Ohio Revised Code, it is
unlawful for any person, during the course of any campaign for
nomination or election to public office, by means of campaign
materials3/ or otherwise, to "[u]se the title of an office not
currently held by a candidate in a manner that implies that the
candidate does currently hold that office...." To be covered by
this provision, the candidate must use the title "knowingly and
with intent to affect the outcome" of his or her campaign.
Neither the Act nor the Commission's regulations, however,
contain such a requirement. See 2 U.S.C. SS 441d and 11 CFR
110.11.
Under 2 U.S.C. SS 453, the Act and Commission regulations
supersede any provision of state law with respect to election to
Federal office. See also 11 CFR 108.7. The House Report
accompanying the 1974 Amendments to the Act 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."4/ The
Report also states that Federal law is controlling "with respect
to reporting and disclosure of political contributions to and
expenditures by Federal candidates and political committees, but
does not affect State laws as to the manner of qualifying as a
candidate, or the dates and places of election."5/
Commission regulations follow these expressions of
legislative intent by explaining that the Act and regulations
issued thereunder supersede and preempt State law with respect to
the organization and registration of political committees
supporting Federal candidates, the disclosure of receipts and
expenditures by Federal candidates and political committees, and
limitations on contributions and expenditures regarding Federal
candidates and political committees. 11 CFR 108.7(b).
3/ The Ohio statute defines the term "campaign materials" to
include "sample ballots, an advertisement on radio or television
or in a newspaper or periodical, a public speech, [or a] press
release..." Ohio Rev. Code Ann. SS 3599.091(B).
4/ House Report of the Committee of Conference on the Federal
Election Campaign Act Amendments of 1974 (Report No. 93-1438, 93d
Cong., 2d Sess., 69, 1974).
5/ Id. at 100-101.
In several advisory opinions involving factual situations
similar to the one you have presented, the Commission has
concluded that the Act preempts provisions of state law. For
example, in Advisory Opinion 1978-24, the Commission held that
the Act superseded and preempted a Washington statute that
required designation of party affiliation on all campaign
advertising. In Advisory Opinion 1980-36, the Commission
concluded that the Act preempted SS 3599.09 of the Ohio Revised
Code, which required that a published political communication
designed to promote the nomination or election or defeat of a
candidate must contain the name and residence address of the
chairman or secretary of the organization issuing the
communication, or the person responsible for the communication.
Finally, in Advisory Opinion 1981-27, the Commission concluded
that the Act superseded and preempted a Houston, Texas, ordinance
concerning the placement of a "warning" on all political campaign
materials placed, posted, or erected in the city, insofar as that
ordinance was applied to elections to Federal office. See also
Advisory Opinion 1978-54.
On the basis of these opinions and the clear legislative
history of 2 U.S.C. SS 453, the Commission concludes that to the
extent SS 3599.091(B)(1) of the Ohio Revised Code applies to the
Committee's use of the described logo, the Act and regulations
supersede and preempt this provision of State law.
The 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. SS 437f.