Federal Election Commission Main Page
November 30, 1989
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1989-25
John P. Stabile II
Chairman
New Hampshire Republican
State Committee
134 North Main St.
Concord, NH 03301
Dear Mr. Stabile:
This responds to your letter dated September 29, 1989, requesting
an advisory opinion concerning application of the Federal Election
Campaign Act of 1971, as amended ("the Act"), to "voluntary" campaign
spending limits recently enacted by he State of New Hampshire.
Your letter states that New Hampshire has recently amended its
campaign finance statutes to provide for "voluntary" campaign
expenditure limits which would, under the statutory language, apply to
1990 candidates for the United States Senate and the United States
House of Representatives.1/ N.H. RSA 664:1, 664:4-b, 664:5-a, 664:5-b,
and 664:21. Other candidates for State and local offices are also
covered. Application of the limits depends upon whether the
candidates wish to obtain a waiver of ballot filing fees and primary
petition signatures which would otherwise be required.2/ The limit
prescribed by the statute includes campaign expenditures made by the
candidate, each of his or her committees, as well as expenditures made
on the candidate's behalf by a political party. N.H. RSA 664:5-a.
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1/ The applicable limits are $400,000 per election for Senate
candidates and $200,000 per election for House candidates.
N.H. RSA 664:5-b.
2/ The statute requires payment of a $5,000 filing fee at the
time a Senate or House candidate files a declaration of
candidacy. N.H. RSA 655:19. It also requires the filing of
"primary petitions made by members of the [candidate's]
party... ." N.H. RSA 655.20. Senate candidates file 2,000
petitions and House candidates file 1,000. N.H. RSA 655:22.
Any candidate who files a timely affidavit "voluntarily
agreeing to limit his expenditures and those...on his behalf
by his committee or...party, and his immediate family" may
obtain a waiver of the filing fee. N.H. RSA 664:5-a. If a
waiver is not obtained, the filing fee must be paid and the
primary petitions must be filed. N.H. RSA 655:19, 655:19-b,
655:20.
Expenditures in excess of the limits subject the candidate to fines on
a sliding scale: for expenditures which exceed the limit by less than
$1,000 the fine is 1% of the excess; for expenditures exceeding the
limit by over $10,000 the fine is 50% of the excess.
Your letter explains that you seek an advisory opinion from the
Federal Election Commission as to whether the cited New Hampshire
statutory provisions are preempted by the Act pursuant to 2 U.S.C.
Sc453. You further explain that you are requesting this opinion on
behalf of the New Hampshire Republican Party ("the party") in its
"role as a recruiter of" Federal office candidates and as "a
contributor to" those candidates. You also states that an opinion is
necessary so that the party can "comply with the law" in making
contributions to its Federal candidates and "in advising" them as to
their own campaign contributions and expenditures.3/ You do not
identify any specific Federal candidate, and it does not appear that
any such candidate has authorized the party to submit this request on
his or her behalf.
The Act authorizes the Commission to issue an advisory opinion in
response to a "complete written request" from any person with respect
to a specific transaction or activity by the requesting person. 2
U.S.C. Sc437f(a). Commission regulations explain that requests on
behalf of a requesting person, such as a candidate, may be made by an
"authorized agent of such person," but the agent must identify his or
her principal. 11 CFR 112.1(a). The request must also concern a
specific transaction or activity that "the requesting person plans to
undertake or is presently undertaking and intends to undertake in the
future." 11 CFR 112.1(b). Inquiries presenting only a general
question of interpretation, or the activities of third parties, do not
qualify as advisory opinion requests. 11 CFR 112.1(d).
In view of these requirements, your inquiry qualifies as an
advisory opinion request only with respect to the possible Federal
preemption of the New Hampshire statute as applicable to the party's
own specific expenditures on behalf of Federal candidates. The
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3/ The party's contributions to Federal candidates in New
Hampshire would, according to your request, be made under
2 U.S.C. Sc441a(d), Sc441a(a)(2), and 11 CFR 110.2(e). The
Commission notes that contributions by the party under
Sc441a(a)(2) are limited to $5,000 per candidate, per
election, because the party's Federal committee has qualified
as a multicandidate committee. The cited New Hampshire
statutes do not preclude the party from making those
contributions. The party may not make contributions under
11 CFR 110.2(e) because that regulation implements 2 U.S.C.
Sc441a(h) which, by its terms, only applies to contributions
to Senate candidates by specified national party committees,
not by state party committees. The party's expenditures
pursuant to 2 U.S.C. Sc441a(d) are permitted, as discussed
elsewhere in this opinion, notwithstanding the cited New
Hampshire statutes.
party's "role" as a recruiter or advisor of Federal candidates, who
have not expressly authorized the party to make this request as their
agent, does not constitute a specific activity or transaction of the
party for purposes of the advisory opinion process. Accordingly,
those aspects of the party's inquiry that relate to a candidate's
expenditures, or use of campaign funds, do not qualify as an advisory
opinion request at this time. Of course, any Federal candidate who
contemplates applying for a waiver of the ballot fee may directly, or
through any authorized agent, present such proposed conduct and ask
whether New Hampshire statutes would be preempted by the Act if they
obtain a waiver.
Your request does not present specific activity of the party on
behalf of Federal candidates in New Hampshire because you indicate
that the party will be a "contributor" to them by making general
election expenditures under
2 U.S.C. Sc441a(d). That section allows a state party committee to
make expenditures of a limited amount in connection with the general
election campaigns of the party's Congressional candidates.4/ 2 U.S.C.
Sc441a(d)(3). Such limited expenditures may be made in consultation
and cooperation with the candidates, but are not considered
contributions to them. See 2 U.S.C. Sc441a(a)(7)(B) and 11 CFR
110.7(b)(3), (b)(4). In addition, these limited expenditures may be
made "[n]otwithstanding any other provision of law with respect to
limitations on expenditures... ." 2 U.S.C. Sc441a(d)(1).
Under the New Hampshire statute, the party's campaign expenditures
on behalf of any Federal candidate, who has obtained a waiver of the
ballot fee and petition requirements, would be attributed to such
candidate's State limit. N.H. RSA 664:5-a. The Act provides,
however, that its provisions, and rules prescribed thereunder,
"supersede and preempt any provision of State law with respect to
election to Federal office." 2 U.S.C. Sc453. Commission regulations
further specify that Federal law supersedes State law concerning any
limitation on expenditures regarding Federal candidates.5/ 11 CFR
108.7(b)(3).
The report of the House committee that drafted the preemption
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4/ The most recent information available to the Commission
indicates that the State party's expenditure limits for the
1990 general election campaign will be $47,980 for the
party's U.S. Senate candidate and $23,990 for each of its two
U.S. House of Representatives candidates in the general
election.
5/ Commission regulations also state that the Act does not
supersede State laws which provide for the "manner of
qualifying as" a Federal candidate. 11 CFR 108.7(c)(1).
This opinion does not reach the issue of whether the
above-cited New Hampshire ballot fee waiver provisions would
constitute a State law pertaining to the manner of qualifying
as a candidate.
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 to the
Act states that "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, [and] the conduct
of Federal campaigns. . . ." H.R. Rep. No. 93-1438, 93d Cong., 2d
Sess. 69 (1974).
As the legislative history of 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 for election to
Federal office. The Act expressly permits the party to make limited
expenditures in connection with the general election campaigns of its
Congressional candidates, and it provides that those expenditures are
permitted notwithstanding any other provision of law. The Commission
has previously recognized that in permitting these political party
expenditures, the Act conveys a right to the party committees.
Advisory Opinion 1980-119. The New Hampshire limits would, however,
inhibit that right where such spending, when attributed to the Federal
candidate beneficiary, would cause the candidate to exceed the limit
and become subject to a monetary fine. Similarly, even where the
party's expenditures would not of themselves cause the State limit to
be exceeded, the exercise of the party's expenditure right under the
Act would be significantly curtailed and chilled by the State statute.
This chilling effect would occur because attribution of the party's
expenditures to the Federal candidate could directly result in a
reduction of the party's expenditures out of deference to conserving
the limit for the candidate alone.
For the foregoing reasons, the Commission concludes that by
attributing the party's Sc441a(d) expenditures to any Federal
candidate's State limit, the New Hampshire statute imposes
restrictions and penalties on those party expenditures which are
expressly allowed by the Act. The statute thereby encroaches upon the
regulatory area in which the Act "occupies the field." Advisory
Opinions 1989-12 and 1988-21. See Capital Cities Cable, Inc. v.
Crisp, 467 U.S. 691, 704-705(1984). Accordingly, to the extent that
N.H. RSA 664:5-a attributes the party's Sc441a(d) expenditures to the
State limits of Federal candidates who receive ballot fee waivers, it
is preempted by the Act and Commission regulations.
Although not directly presented in your request, the Commission
notes that, in view of the foregoing conclusion and analysis, any
party payments to support Federal candidates that are exempt from the
definition of "expenditure" in 2 U.S.C. Sc431(9) would also be outside
the purview of any limitations in the cited New Hampshire statute.
The relevant exemptions allow, under certain conditions, various State
political party activities such as distribution of printed slate cards
or sample ballots, and political party use of campaign materials in
connection with volunteer activities. 2 U.S.C. Sc431(9)(B)(iv),
(9)(B)(viii). Accordingly, application of the cited New Hampshire
statute to such party disbursements would similarly be preempted by 2
U.S.C. Sc453.
The Commission further notes that nothing in this opinion should
be interpreted as expressing or implying any views with respect to the
Act's preemption of the New Hampshire statute's ballot fee waiver
provisions or the enforcement of its fine schedule if a Federal
candidate who receives a fee waiver exceeds the State limit. For the
reasons discussed at the beginning of this opinion, those issues are
not properly presented to the Commission in this advisory opinion
request.
This request constitutes an advisory opinion concerning
application of the Act and Commission regulations to the specific
transaction or activity set forth in your request. See 2 U.S.C.
Sc437f.
Sincerely,
Danny L. McDonald
Chairman for the
Federal Election Commission
Enclosures (AOs 1980-119, 1988-21, and 1989-12)