Federal Election Commission Main Page
August 13, 1993
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1993-14
Guy Dufault, Chairman
Rhode Island Democratic
State Committee
1991 Smith Street
No. Providence, RI 02911
Dear Mr. Dufault:
This responds to your letter dated June 22, 1993, on
behalf of the Rhode Island Democratic State Committee ("the
State Committee") concerning the application of the Federal
Election Campaign Act of 1971, as amended ("the Act") and
Commission regulations to Federal preemption of Rhode Island
State campaign finance laws.
The Rhode Island Democratic State Committee has a
Federal Account ("the Federal Account") which has been
registered with the Commission as a political committee since
September 25, 1980. This account is used solely in
connection with Federal elections, and receives only
contributions that are in compliance with the prohibitions
and limitations of the Act. The State Committee also
maintains a separate non-Federal account, registered with the
Rhode Island Board of Elections ("the Board"), "for use in
connection with Rhode Island elections, and to pay for the
non-federal portion of allocable expenses." You have
received a letter from the Chairman of the Board, dated June
8, 1993, which concluded that the State Committee's Federal
Account is subject to prohibitions, limitations, and
reporting requirements set out in Rhode Island State law.
Rhode Island law requires that a committee must register
before receiving any contributions, and must file disclosure
reports regularly with the Board. Rhode Island General Laws
17-25-11 and 17-25-15. Furthermore, registered political
committees are required to give to a minimum of five or more
candidates. R.I.G.L. 17-25-3(j). In addition, Rhode Island
political party committees may not receive contributions in
excess of $1,000 per calendar year from an individual or from
a political action committee. R.I.G.L. 17-25-10.1(a).
In the letter sent by the Board, the Chairman asserted
that, although a Federally registered political action
committee may make a contribution directly to a Federal
candidate or the candidate's authorized committee "free of
any conflicting provisions of state law," the PAC may not
make a contribution directly to the State Committee, even
though the funds would be held in an account used solely for
support of Federal candidates, unless the contribution is
made subject to Rhode Island laws. The letter stated that
the PAC would have to register with the Board, and comply
with the limit on contributions to it from individual donors
and with the requirement to contribute to five or more Rhode
Island candidates.
Because of the letter, you seek an advisory opinion on
three points: (1) whether Rhode Island law may limit
contributions to the State Committee Federal Account to
$1,000 per calendar year; (2) whether the Federal Account, or
any Federal political committee that makes a contribution to
the Federal Account, is subject to the registration and
reporting requirements of Rhode Island law; and (3) whether
the Federal Account, or any Federal political committee that
makes a contribution to the Federal Account, is required to
contribute to a minimum of five Rhode Island candidates.
Before proceeding to the substance of the response as to
the preemption of Rhode Island law, the Commission notes that
your request includes the question of whether committees
other than yours are subject to State law. Commission
regulations provide that the request shall set forth a
specific transaction or activity that the requesting person
plans to undertake or is presently undertaking and intends to
undertake in the future; requests of third parties do not
qualify as advisory opinion requests. 11 CFR 112.1(b). The
Commission does not consider your questions about
requirements placed on other committees as questions by a
third party because of the direct impact on the receipt of
contributions by the State Committee. If registration,
reporting, and future contribution burdens are imposed upon
the other committees, the State Committee will very likely
not receive contributions it would otherwise receive. See,
by analogy, Advisory Opinion 1984-58. (In that opinion, the
Commission considered a request by a city for a determination
that a non-requester presidential campaign, against which the
city thought it had a monetary claim for expenses, was not
precluded by the Presidential Election Campaign Fund Act from
making payment on the claim. The Commission, although
concluding that it could not decide whether the campaign owed
the money as a matter of contract or other legal theory,
determined that the campaign was not precluded by the Fund
Act from making the payment.)
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 No.
95-44, at 51.
The Commission has previously asserted the Act's
preemption of state law with respect to the Federal
activities of state party committees. See Advisory Opinions
1989-25 and 1978-50. Because of the Federal law's sole
authority with respect to contributions and expenditures
regarding political committees, the Act preempts Rhode Island
law with respect to limits on contributions to the State
Committee's Federal Account. Thus, the only applicable
limits on contributions to the Federal Account are the limits
in 2 U.S.C. §441a(a)(1)(C) and 441a(a)(2)(C) (as well as the
prohibitions in the Act).
You have represented that the Federal Account is used
solely in connection with Federal elections. The imposition
of Rhode Island registration and reporting requirements on a
committee engaged in Federal activity only would be an
encroachment upon the sole authority of the Act and
regulations as to these areas. The Act thus preempts Rhode
Island law, and the Federal Account needs to comply only with
the Federal registration and reporting requirements. The
Commission cautions that the State might not be precluded
from imposing some restrictions or conditions on the State
Committee if the Federal Account were to engage in
non-Federal election activity. See Advisory Opinion 1986-27.
(The Commission, in that opinion, concluded that Alaska could
require a non-Federal account of an SSF to report the
original sources of funds received by the Federal account and
then transferred to the non-Federal account and the
fundraising expenses allocable to such transferred funds.
The Commission stated that "[t]he Act does not, however,
preempt state law with respect to the reporting of receipts
and disbursements of funds used for non-Federal election
purposes or the registration and reporting of non-Federal
accounts or state committees.") See also Advisory Opinions
1990-6 and 1982-29 upholding preemption of state laws with
respect to payroll deduction and charitable matching
contribution plans on the condition that the plans raise
funds for use in Federal elections only.
Consistent with Federal preemption as to registration
and reporting, the Commission also concludes that a Federal
political committee's contribution to the State Committee's
Federal Account would not, by itself, permit application of
Rhode Island requirements.
The Commission's response to the third part of your
request is essentially the same as its response to the second
part. Federal law preempts as to contributions and
expenditures regarding political committees. In view of the
fact that the Federal Account is involved in Federal activity
only, a state law requiring contributions to a specified
number of Rhode Island candidates would be preempted by the
Act. Similarly, a Federal political committee's contribution
to the Federal Account would not, by itself, permit
application of the Rhode Island requirement.
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
Enclosures (AOs 1990-6, 1989-25, 1986-27, 1984-58, 1982-29,
and 1978-50)