Federal Election Commission Main Page
May 16, 1988
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1988-21
Dana W. Reed
Reed & Jones
3151 Airway Avenue, Suite M-1
Costa Mesa, California 92626
Dear Mr. Reed:
This responds to your letter of April 25, 1988, requesting
an advisory opinion on behalf of Friends of Harriett Wieder,
concerning preemption by the Federal Election Campaign Act of
(1971, as amended ("the Act"), and Commission regulations of an
Orange County, California, ordinance that limits political
contributions.
Your letter states that the Friends of Harriett Wieder
("Friends") is the authorized campaign committee of Harriett
Wieder, a candidate for Congress in the 42nd District of
California. The primary election will be held in California on
June 7, 1988. Mrs. Wieder is also a member of the Orange County
Board of Supervisors. You explain that at least one potential
contributor to Mrs. Wieder's Federal campaign is hesitant to
contribute the $1,000 maximum permitted by the Act1/ because his
contribution and the receipt of that contribution by the Friends
may be considered violations of the Orange County Campaign Reform
Ordinance of 1978, as amended. Violations are misdemeanors under
the ordinance.2/
1/ 2 U.S.C. SS 441a(a)(1)(A): "No person shall make contributions
. . . to any candidate and his authorized political committees
with respect to any election for Federal office which, in the
aggregate, exceed $1,000."
2/ Orange County Codified Ordinances SS 1-6-16.
Section 1-6-13 of the Orange County ordinance prohibits a
certain class of persons, "County Influence Brokers," from
contributing more than $868 in any 12-month period in the
aggregate to all members of the Board of Supervisors, candidates
for Board office, and their controlled committees. The ordinance
in pertinent part defines a "County Influence Broker" as any
person who (1) has contributed more than $350 over the past 12
months to any or all members of the Board of Supervisors or their
controlled committees and (2) is employed or contracts for
consideration to communicate with Board members or their staff
assistants for the purpose of influencing any action of the Board
of Supervisors.3/
The cited ordinance would appear to prohibit a County
Influence Broker who has contributed $868 to one or more Orange
County Board members from contributing further to those persons
or to a Board member to whom he has not previously made a
contribution even if the contribution is for a Federal and not
for a county campaign. In a letter you enclosed with your
request, the Orange County District Attorney's office concluded
that the ordinance limiting contributions by County Influence
Brokers applies to contributions made to the Friends of Harriett
Wieder. Another official, the Orange County Counsel, had earlier
advised Mrs. Wieder that the Act would preempt the ordinance.
As revised by the 1974 Amendments to the Act, section 453
states:
The provisions of this Act, and of rules
prescribed under this Act, supersede and
preempt provisions of State law with respect
to election to Federal office.
The language of this broad, explicit preemption clause is plain.
The report of the House committee that drafted the clause
explains its intent in sweeping terms: Federal law is to be
"construed to occupy the field with respect to elections to
Federal office" and is to be "the sole authority under which such
elections will be regulated." H.R. Rep. No. 93-1239, 93d Cong.,
2d Sess. 10 (1974). The conference committee report on the 1974
Amendments states that "Federal law occupies the field with
respect to ... the source of campaign funds in Federal races [and
to] the conduct of Federal campaigns ...." H.R. Rep. No. 93-1438,
93d Cong., 2d Sess. 69 (1974).
3/ Orange County Codified Ordinances SS 1-6-9. Each County
Influence Broker must register with the County Clerk. SS 1-6-10.
The Commission has issued regulations that embody the
explicit congressional intent to preempt. The regulations
provide, inter alia, that "Federal law supersedes State law
concerning the ... [l]imitations on contributions ... regarding
Federal candidates and political committees." 11 CFR
108.7(b)(3). The regulations also list the types of State
election laws that the Act does not preempt or supersede, e.g.,
State laws governing the manner of qualifying as a candidate,
dates and places of elections, voter registration, vote fraud.
11 CFR 108.7(c). The Orange County ordinance in question does
not fall within this restricted category. Instead, it regulates
the contributions that may be made to Harriett Wieder's Federal
campaign; in the words of the conference report quoted earlier,
it concerns "the source of campaign funds in Federal races."
As the legislative history of section 453 shows, the central
aim of the clause is to provide a comprehensive, uniform Federal
scheme that is the sole source of regulation of campaign
financing--including contribution limitations--for election to
Federal office. The Act prescribes limitations on contributions
by any person, including individuals, and prohibits contributions
completely by certain specified persons (national banks,
corporations, and labor organizations using their treasury funds,
and foreign nationals and government contractors). The Act does
not include influence brokers or lobbyists among those who may
not contribute to Federal candidates or political committees. To
fail to preempt the regulation by Orange County of contributions
to Federal candidates would be to undermine the congressional aim
of national uniformity and to nullify Congress's considered
decision to allow Federal campaign contributions of up to
$1,000.4/
The Commission has consistently relied upon the Act's broad
preemption provision, 2 U.S.C. SS 453. The Act occupies the field
with respect to Federal election campaign contributions. The
most relevant precedent is Advisory Opinion 1978-66, in which a
congressional candidate who was also an elected state officer in
California asked the Commission whether the Act preempted
California provisions that prohibited his receiving contributions
from lobbyists registered under California law. Citing 2 U.S.C.
SS 453 and its legislative history, the Commission concluded that,
"since the provisions of the California Government Code . . .
are, in effect, limitations on contributions, . . . these
4/ The Commission has indicated that the Act permits any person
who is not otherwise prohibited by Federal law from doing so to
make a contribution up to the statutory maximum in a Federal
election and that a Federal office candidate may accept such a
contribution. See, e.g., Advisory Opinions 1984-26 and 1979-28.
provisions are preempted by the Act insofar as they might apply
to a candidate for Federal office." See also Advisory Opinion
1986-27 (Act preempts contribution reporting duties demanded by
State regulatory body; "[s]uch a requirement would impose
reporting and itemization requirements on . . . a Federal
political committee . . . that would exceed those required by the
Act and Commission regulations"); Advisory Opinion 1982-29
(corporate separate segregated fund may collect voluntary
contributions by means of payroll deductions regardless of any
State laws to the contrary). Cf. Advisory Opinion 1986-11 and
the opinions it cites.5/
The Commission concludes that the Act and Commission
regulations preempt the Orange County ordinance insofar as it
applies to the Federal election campaign of Harriett Wieder.
Congress has not only expressly preempted the field of Federal
election regulation, it has, assisted by the Commission, created
a uniform Federal regulatory scheme for the financing of Federal
elections. The Orange County ordinance encroaches upon the Act's
and the regulations' treatment of contributions to Federal office
candidates and to their committees.6/
5/ Compare the advisory opinions listed in the text with Advisory
Opinion 1980-47, which did not involve contribution limitations
(Act did not preempt State law prohibiting payments by candidates
and political committees to "walk-around" workers on election
day).
6/ Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698-99
(1984), summarizes the familiar principles applicable to
preemption questions. See also Aloha Airlines, Inc. v. Director
of Taxation of Hawaii, 464 U.S. 7, 12 n.5 (1983) (rules developed
in cases involving the implicit preemption of State statutes
apply when a court must decide whether a State law should be
preempted even though Congress has not expressly legislated
preemption; "[t]hese rules . . . have little application when a
court confronts a federal statute . . . that explicitly pre-empts
state laws"). Cf. Rice v. Santa Fe Elevator Corp., 331 U.S. 218,
236 (1947) ("Congress can act so unequivocally as to make clear
that it intends no regulation except its own. . . . The
test . . . is whether the matter on which the State asserts the
right to act is in any way regulated by the Federal Act. If it
is, the federal scheme prevails though it is a more modest, less
pervasive regulatory plan than that of the State"); KVUE, Inc. v.
Moore, 709 F.2d 922, 931-32 (5th Cir. 1983), aff'd mem., 465 U.S.
1092(1984) ("If preempted, a complementary or supplementary state
regulation is as invalid as one directly conflicting with the
federal scheme, for preemption forbids state regulations to
advance or to retard the federal purpose") (footnote omitted).
Two court decisions that appear to support nonpreemption are
factually distinguishable and inconsistent with the prevailing
case law. Reeder v. Kansas City Board of Police Comm'rs, 733
F.2d 543 (8th Cir. 1984), cert. denied, ____ U.S. ____, 107 S.
Ct. 951 (1987), and Pollard v. Board of Police Comm'rs,
665 S.W.2d 333 (Mo. 1984) (en banc), cert. denied, 473 U.S.
907-08 (1985), involved challenges by Kansas City, Missouri,
policemen to a state statute that forbids officers and employees
of the Kansas City Police Department to make any political
contributions. The provision in question, unlike the Orange
County ordinance, is directed to governmental employees.
Further, in explaining their decisions, the courts gave little
weight to the Act's express preemption clause, its legislative
history, and the Commission's administrative rulings.
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. SS 437f.