Federal Election Commission Main Page
March 15, 1994
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1994-2
Kim Isenberg, Campaign Manager
Linda Berglin for United States Senate
Volunteer Committee
P.O. Box 6124
Minneapolis, MN 55406-0124
Dear Ms. Isenberg:
This responds to your letter dated January 21, 1994,
requesting an advisory opinion on behalf of the Linda Berglin
for United States Senate Volunteer Committee ("the
Committee") concerning the application of the Federal
Election Campaign Act of 1971, as amended ("the Act"), and
Commission regulations to a Minnesota statute regulating
political contributions by lobbyists to the campaigns of
state legislators.
Ms. Berglin is a member of the Minnesota State Senate
and a candidate in Minnesota for the United States Senate in
the 1994 elections. You indicate that a Minnesota statute
purports to curtail fundraising for her Federal office
campaign. Under the Minnesota law, a committee authorized by
someone defined as a candidate for the state legislature may
not receive contributions from "a registered lobbyist,
political committee, or political fund during a regular
session" of the state legislature.
You ask whether the State of Minnesota may require a
state legislator to comply with state law restrictions
intended to govern when and whom such a person can solicit
for contributions to her campaign for Federal office. The
situation and question you present is, in all material
respects, the same as the situation and question presented in
Advisory Opinion 1993-25. In that opinion, the requester
asked whether the Act preempted a Wisconsin statute
prohibiting contributions by lobbyists to the Federal
campaign of a state legislator, except between the period of
June 1 of the election year and the day of the general
election. The Commission's analysis and conclusions in
Advisory Opinion 1993-25 are reiterated:
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 [state] 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
[state] 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.
Based on the foregoing, the Commission concludes that
the above-cited time restriction on contributions in
Minnesota is preempted with respect to Ms. Berglin's U.S.
Senate campaign. The Commission notes that this conclusion
applies to the specific statutory restriction you have
presented, and this opinion does not address other state
restrictions not presented in your request.
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)
Danny Lee McDonald
Vice Chairman
Enclosures (AOs 1993-25, 1992-43, 1989-12, 1988-21, and 1978-66)
ENDNOTES
1/ The statute states, in pertinent part, as follows:
Minnesota Statutes 10A.065 Contributions and Solicitations During
Legislative Session.
Subdivision 1. Registered lobbyist contributions; legislative
session. A candidate for the legislature or for constitutional
office, a candidate's principal campaign committee, any other
political committee with the candidate's name or title, or any
committee authorized by the candidate (emphasis added), shall not
solicit or accept a contribution on behalf of the candidate's
principal campaign committee, any other political committee with
the candidate's name or title, or any committee authorized by the
candidate, from a registered lobbyist, political committee, or
political fund during a regular session of the legislature.
MS 10A.01 Definitions.
Subdivision 5. Candidate. "Candidate" means an individual
who seeks nomination or election to any statewide or legislative
office for which reporting is not required under federal laws...
A candidate remains a candidate until the candidate's principal
campaign committee is dissolved as provided in section 10A.24.
2/ Your original request letter also asked whether the State of
Minnesota may require a state legislator to dissolve her principal
campaign committee for state office as a prerequisite to seeking
contributions for her Federal candidacy. By letter dated February
17, 1994, you withdrew this question from consideration.