Federal Election Commission Main Page
January 31, 1994
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1993-25
State Representative Robert T. Welch
Citizens for Welch
P.O. Box 472
Madison, WI 53701
Dear Mr. Welch:
This responds to your letter dated December 20, 1993,
concerning the application of the Federal Election Campaign
Act of 1971, as amended ("the Act"), and Commission
regulations to a Wisconsin statute regulating political
contributions by lobbyists to state legislators.
You are a member of the Wisconsin legislature and a
candidate in Wisconsin for the United States Senate in the
1994 elections. You indicate that a Wisconsin statute
purports to curtail fundraising for your Senate campaign.1/
Under the Wisconsin law, you may not receive contributions
from a "lobbyist" until June 1, 1994. You have received
several contributions that would be proscribed by this
statute, and you wish to know whether Federal law preempts
its application to your Federal candidacy.
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.
The Commission issued regulations that embody the
explicit Congressional intent to preempt. The regulations
provide, inter alia, that "Federal law supersedes State law
concerning the ... [l]imitation on contributions and
expenditures regarding Federal candidates and political
committees." 11 CFR 108.7(b)(3). The regulations also list
the types of State election laws that are "interests of the
state" and are not preempted, i.e., laws governing the manner
of qualifying 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). Federal Election Commission
Regulations, Explanation and Justification, House Document
No. 95-44, at 51 (1977).
The Wisconsin provision, as applied to Federal
candidates, does not regulate those areas defined as
interests of the state. Instead, it places restrictions on
the time period when contributions may be made to Federal
candidates, an area to be regulated solely by Federal law.
The Act prescribes prohibitions and limitations on
contributions with respect to Federal candidates and
political committees. See 2 U.S.C. §§441a, 441b, 441c, and
441e. The Commission has clarified how the timing of a
contribution determines which election limit applies, and
when a contribution made after an election for debt
retirement is impermissible. 11 CFR 110.1(b) and 110.2(b).
The Act and Commission regulations also address how quickly
contributions must be forwarded and deposited. 2 U.S.C.
§432(b); 11 CFR 102.8 and 103.3. The Act contains no
provisions similarly limiting contributions by lobbyists to
Federal election campaigns. Under the broad preemptive
powers of the Act, only Federal law could limit the time in
which a lobbyist may contribute to the Federal election
campaign of a state legislator. See Advisory Opinions
1989-12 and 1988-21. See also Advisory Opinion 1992-43.
The Commission has concluded that the Act preempts with
respect to a state law prohibition on contributions by state
lottery contractors to a U.S. Senate candidate, a county
provision limiting contributions by "County Influence
Brokers" to the Federal campaign of a member of the County
Board of Supervisors, and a state law prohibition on
contributions by lobbyists to the Federal campaign of an
elected state officer. Advisory Opinions 1989-12, 1988-21,
and 1978-66. The Commission has also held that the Act
preempts state time limits for the acceptance by a state
legislator's Federal campaign of contributions to retire the
Federal campaign debt. Advisory Opinion 1992-43.
The Commission concludes therefore that the Wisconsin
provision is preempted with respect to your U.S. Senate
campaign, and it may accept contributions from lobbyists that
are otherwise lawful under the Act.
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.
For the Commission,
(signed)
Trevor Potter
Chairman
Enclosures (AOs 1992-43, 1989-12, 1988-21, and 1978-66)
ENDNOTES
1/ The state statute is as follows:
13.625 Prohibited practices. (1) No lobbyist may:
(c) Except as permitted in this subsection, make a campaign
contribution, as defined in §11.01(6), to a partisan elective
state official for the purpose of promoting the official's
election to any national, state or local office, or to a
candidate for a partisan elective state office to be filled
at the general election or a special election, or the
official's or candidate's personal campaign committee. A
campaign contribution to a partisan elective state official
or candidate for partisan elective state office or his or her
personal campaign committee may be made in the year of a
candidate's election between June 1 and the day of the
general election...