Federal Election Commission Main Page
January 28, 1993
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1992-43
Senator Tim Erwin
Washington State Senate
109-A Institutions Building
P.O. Box 40444
Olympia, WA 98504-0444
Dear Senator Erwin:
This responds to your letter dated December 16, 1992,
requesting an advisory opinion concerning the application of
the Federal Election Campaign Act of 1971, as amended ("the
Act"), and Commission regulations to a Washington statute
placing fundraising restrictions on state legislators.
In November 1992, a campaign contribution limitation
initiative known as Initiative 134 received a favorable vote
from the people of the State of Washington. Section 11 of
the initiative places restrictions on public officials
seeking to retire their Federal election campaign debts.
Section 11 states as follows:
SEC. 11. TIME LIMIT FOR STATE OFFICIAL TO
SOLICIT OR ACCEPT CONTRIBUTIONS.
During the period beginning on the thirtieth
day before the date a regular legislative session
convenes and continuing thirty days past the date
of final adjournment, and during the period
beginning on the date a special legislative
session convenes and continuing through the date
that session adjourns, no state official or a
person employed by or acting on behalf of a state
official or state legislator may solicit or
accept contributions to a public office fund, to
a candidate or authorized committee, or to retire
a campaign debt.
You are a state senator who ran for Congress in the 1992
primary election and, as of its last report filed with the
Clerk of the House, your principal campaign committee owes
debts totaling over $22,500. You wish to know whether
section 11 is preempted by Federal law so that state
officials retiring Federal campaign debts may solicit or
accept contributions "before, while, or after the Washington
State Legislature is in session."1/
Your request does not identify any other requester but
yourself, although you also refer to the fact that other
members of the Washington State Legislature sought Federal
office last year. 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.
§437f(a). The request must 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.
In view of these requirements, your inquiry qualifies as
an advisory opinion with respect to your activity and the
activity of your authorized campaign committees. Your
inquiry does not, however, qualify as an advisory opinion
request with respect to other State officials or employees
because they have not joined in the submission of your
request, and you have not set forth a specific factual
situation as to the activity of such other personnel. 11 CFR
112.1(b).
The Act states that its provisions and the rules
prescribed thereunder, "supersede and preempt any provision
of State law with respect to election to Federal office."
2 U.S.C. §453. The House committee that drafted this
provision intended "to make certain that the Federal law is
construed to occupy the field with respect to elections to
Federal office and that the Federal law will be the sole
authority under which such elections will be regulated."
H.R. Rep. No. 93-1239, 93d Cong., 2d Sess. 10 (1974).
According to the Conference Committee report on the 1974
Amendments to the Act, "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" as to other
areas such as voter fraud and ballot theft. H.R. Rep. No.
93-1438, 93d Cong., 2d Sess. 69 (1974). The Conference
report also states that Federal law occupies the field 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 elections. Id. at 100-101.
When the Commission promulgated regulations at 11 CFR
108.7 on the effect of the Act on state law, it stated that
the regulations follow section 453 and that, specifically,
Federal law supersedes state law with respect to the
organization and registration of political committees
supporting Federal candidates, disclosure of receipts and
expenditures by Federal candidates and political committees,
and the limitations on contributions and expenditures
regarding Federal candidates and political committees.
Federal Election Commission Regulations, Explanation and
Justification, House Document No. 95-44, at 51. 11 CFR
108.7(b). The regulations provide that the Act does not
supersede state laws concerning the manner of qualification
as a candidate or political party organization, dates and
places of elections, voter registration, voting fraud and
similar offenses, or candidates' personal financial
disclosure. 11 CFR 108.7(c). The Commission explained that
"[t]hese types of electoral matters are interests of the
states and are not covered in the act." House Document
95-44, at 51.
Section 11 appears to be addressed to the regulation of
the behavior of State officials. Nevertheless, even when
part of a state statute may appear, upon its surface, to be
aimed at regulating the behavior of a state official or
employee outside the area of campaign financing, the
Commission has interpreted the broad preemptive powers to be
applicable because of the statute's effect on campaign
financing. See Advisory Opinions 1989-27 and 1989-12.
Regulation of finance issues such as the receipt of
contributions for the payment of Federal campaign debts is at
the heart of the sweeping preemptive power granted by
Congress. Consistent with this broad power, the Act provides
for the continuance of a political committee until it has no
outstanding debts or obligations and the authority of the
Commission to regulate the disposition of debts. See
2 U.S.C. §§433(d)(1) and (2), and 434(b)(8). The power to
regulate the timing of the retirement of campaign debts is
inherent in the ability to regulate the sources of campaign
funds and campaign expenditures. Such power is evident in
the Commission's regulations relating to 2 U.S.C. §441a(a)(1)
and (2) when the Commission addresses contributions for debt
retirement. 11 CFR 110.1(b)(3)-(5) and 110.2(b)(3)-(5). It
is also evident in regulations relating to those two
statutory sections, as well as to 2 U.S.C. §§433(d) and
434(b)(8), when the Commission regulates conduct as to a
political committee's repayment of debts. 11 CFR Part 116.
The Commission acknowledges that Congress may have
intended that the regulatory scheme should not extend into
the area of state laws regulating the political activities of
state and local employees, known as the "little Hatch Acts."
The House Committee Report, in discussing amendments to Title
5, which were part of the 1974 amendments to the Act, stated
that the regulation of political activities of State and
local employees "would be left largely to the States." H.R.
Rep. No. 93-1239, 93d Cong., 2d Sess. 11 (1974); see also
H.R. Rep. No. 93-1438, 93d Cong., 2d Sess. 102 (1974).
During the Senate debate on the 1974 amendments, subsequent
to the issuance of the Conference Report, Senator Stevens and
Senator Cannon clarified that point. Senator Stevens stated:
It is my understanding, and I should like to
ask the manager of the bill, my friend from
Nevada (Mr. Cannon), if he agrees that this means
that State laws which prohibit a State employee,
or local laws which prohibit a local employee,
from engaging in Federal campaign activities and
Federal campaigns are still valid?
120 Cong. Rec. S18538 (daily ed. October 8, 1974).
Senator Cannon replied that Senator Stevens'
understanding was "absolutely correct." Id.
Insofar as section 11 refers to the conduct of a state
legislator and his authorized Federal campaign committees,
the Commission concludes that the Act preempts the State's
application of section 11. The Hatch Act is aimed at
ensuring that employees of the Executive Branch of
government, or its agencies, administer the law in accordance
with the will of Congress, rather than in accordance with
their own will or that of a political party. See United
States Civil Service Commission v. National Association of
Letter Carriers, AFL-CIO, 413 U.S. 548, at 564-565 (1973).
Such statutes are not aimed at elected legislators whose
jobs, of necessity, contain a political element. See, for
example, the exception for elected officers in the
Massachusetts statute referred to in Advisory Opinion
1989-27. The Commission concludes, therefore, that section
11, as it relates to state legislators and their authorized
Federal committees, is preempted under 2 U.S.C. §453 and
11 CFR 108.7, and is not a "little Hatch Act," subject to
special treatment under the preemption provisions of the Act
and Commission regulations.
The Commission does not express any views as to whether
section 11 would be preempted by the Act or Commission
regulations in the case of other types of state officials or
employees.
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,
(signed)
Scott E. Thomas
Chairman for the
Federal Election Commission
Enclosure (AOs 1989-27 and 1989-12)
ENDNOTES
1/According to section 33 of the initiative , section 11 is
to be codified as part of a new subchapter of Chapter 42.17,
Revised Code of Washington. RCW 42.17.030(2) states that
Chapter 42.17 RCW does not apply to Federal elections. An
assistant attorney general of the State, however, wrote a
memorandum approved by the Executive Director of the State's
Public Disclosure Commission which stated that section 11
applied to the retirement of Federal campaign debts. The
author of the memorandum reasoned, in part, that section 11
applies "after a campaign is complete" and that "it regulates
the conduct of state officials, rather than the financing of
a campaign." For the purposes of this opinion, the
Commission assumes that section 11, with respect to campaign
debts, applies to Federal candidates.