Oregon Advisory Opinions April 01, 1981: OAG 81-26 (April 1, 1981)

Collection: Oregon Attorney General Opinions
Docket: OAG 81-26
Date: April 1, 1981

Advisory Opinion Text

Oregon Attorney General Opinions

1981.

OAG 81-26.

420

OPINION NO. 81-26

[41 Or. Op. Atty. Gen. 420]

No. 8014

April 1, 1981

Mr. C. Gregory McMurdo
Assistant Secretary of State

QUESTION PRESENTED
What provisions, if any, of ORS ch 260 are preempted by federal law with respect to candidates for nomination or election to the offices of United States Senator and Representative in Congress, and President and Vice President of the United States?
ANSWER GIVEN
Those provisions of ORS ch 260 regarding the source, manner and amount of contributions and expenditures and the reporting thereof, and those which duplicate or conflict with provisions of Chapter 29 of the United States Criminal Code, entitled "Elections and Political Activities" (18 USC secs 592 to 607) are preempted by federal law.

DISCUSSION

ORS ch 260 consists of a code of election offenses and election finance regulations. By its general terms, the provisions of the chapter apply to election for federal office.(fn1) We have been asked whether these provisions are preempted with respect to candidates for federal office by federal election laws. We conclude that the provisions of ORS ch 260 which regulate the source, manner and amount of political contributions and expenditures, and the reporting thereof, in federal elections, are broadly preempted by federal law. However, we believe the provisions of ORS ch 260 establishing other election offenses and penalties are preempted only to the extent they duplicate or conflict with federal law.

State statutes and regulations are said to be preempted by federal law under four circumstances: (1) where federal law expressly precludes state action; (2) where state law is in direct conflict with federal law; (3) where a state statute interferes with the operation of federal law or impairs the attainment of federal goals; and (4) where Congress has "occupied the field" by legislation. Derenco v. Benj. Franklin Fed. Sav. and Loan, 281 Or 533, 577 P2d 477 (1978).

State regulation of political contributions and expenditures in federal elections has been expressly preempted by the Federal Election Campaign Act, 2 USC sec 431 et seq. (fn2) 2 USC sec 453 provides:

"The provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office."(fn3)

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"Election" is defined in 2 USC sec 431(a), as:

"(A) a general, special, primary, or runoff election;

"(B) a convention or caucus of a political party which has authority to nominate a candidate;

"(C) a primary election held for the selection of delegates to a national nominating convention of a political party; and

"(D) a primary election held for the expression of a preference for the nomination of individuals for election to the office of President."

"Federal office" is defined in 2 USC sec 431(3) as:

"the office of President or Vice President, or of Senator or Representative in . . . the Congress."

2 USC sec 453 has been characterized as containing "broad-sweeping preemptive language." Gifford v. Congress, 452 F Supp 802, 812 (ED Cal 1978). However, the history of the Act indicates Congress did not intend to preempt those state regulations of federal elections which relate to matters other than contributions and expenditures. The Congressional Conference Report describing the Act of which 2 USC sec 453 is a part contains the following statement:

"It is clear that the 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." Conference Rep No 1237, 93d Cong, 2d Sess (1974), reprinted in US Code and Admin News, 1974, 93d Cong, 2d Sess vol 3, pp 5618, 5668. (Emphasis added.)

It is not feasible to list here exactly which sections or parts of sections are superseded by 42 USC secs 431 et seq., but we may generally say that provisions regulating the source, manner and amount of contributions and expenditures and the reporting thereof are preempted.

In later amendments to the Federal Election Campaign Act, Congress also expressly preempted state criminal sanctions relating to federal campaign spending violations which are regulated in the United States Criminal Code. Section 104 of the Federal Election Campaign Amendments of 1974 (Pub L No 93-443, sec 104; 88 Stat 1272), provides:

"(a) The provisions of chapter 29 of title 18, United States Code [18 USC sec 592 to 607], relating to elections and political activities, supersede and preempt any provision of State law with respect to election to Federal office.

"(b) For purposes of this section, the terms 'election', 'Federal office', and 'State' have the meanings given them by section 591 of title 18, United States Code."

This section, although never codified, remains effective. It appears as a footnote to section 591(fn4) of Title 18 in the United States Code, United States Code Annotated and United States Code Service, Lawyers Edition. However, the Conference Report referred to above also indicates that the amendments were not intended to preempt all state election offenses. The report states:

"The provisions of the conference substitute make it clear that the 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 to prohibit false registration, voting fraud, theft of ballots, and similar offenses under State

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law." Conference Rep No 1237, supra at p 5638 of U.S. Code and Admin News, 1974, 93d Cong, 2d Sess vol 3. (Emphasis added.)

We believe the history of section 104 of Pub L No 93-443 evidences Congressional intent to preempt only those state election offense provisions which actually duplicate or conflict with the provisions of the federal criminal code. Consequently, for example, we conclude that the prohibition in ORS 260.665 against "promising to give . . . employment" to induce someone to "[r]ender . . . services to any candidate" is not preempted by 18 USC sec 600, which provides a penalty for anyone who "promises any employment . . . provided for or made possible in whole or in part by any Act of Congress . . . to any person as consideration . . . for any political activity or for the support of . . . any candidate . . ." (Emphasis added.) There is no duplication or conflict in these provisions to the extent that ORS 260.665 refers to promises made with regard to employment other than that made possible by Congress.

In summary, it is our opinion that 2 USC sec 453 broadly preempts state law regarding the source, manner and amount of contributions and expenditures, and the reporting thereof, in connection with campaigns for federal office. We further believe that section 104 of Pub L No 93-443, never codified but still in effect, has a more modest effect on state law and preempts only those statutes which actually duplicate or conflict with 18 USC secs 592 to 607.

In view of the fact that both state and federal election laws will change from time to time, it is not possible in this opinion to avoid future questions regarding the possible preemption of specific provisions of ORS ch 260.

DAVE FROHNMAYER

Attorney General

DF:WTL

_____________________
Footnotes:

1 ORS 260.005(1) defines "candidate," for purposes of the chapter, as:

"an individual whose name is printed on a ballot, . . . for nomination or election to public office. . . ."

In 23 Op Atty Gen 533 (1948), we concluded that persons whose names appear on the Presidential Preference Primary are not "candidates" under ORS 260.005(1) because the result of that election is not to nominate or elect anyone to public office, but rather simply to advise delegates representing their respective political parties at the parties' national conventions. We adhere to that opinion.

"Public office" is defined in ORS 260.005(12) as:

"any national, state, county, district, city or political party office. . . ."

But see ORS 260.072(5), which relates to campaign financial statements and makes a distinction for federal elections by providing that federal campaign financial statements shall be filed with the Secretary of State on or before the federal filing dates.

2 The authority of Congress to regulate federal elections and to preempt state law in the area is well established. United States Constitution Art I, sec 4; United States v. Classic, 313 US 299 (1941); Ex Parte Siebold, 100 US 371 (1879).

3 2 USC 453 was enacted by section 301 of the Federal Election Campaign Act Amendments of 1974 (1974) (Pub L No 93-443, sec 301; 88 Stat 1289) as an amendment of section 403 of the Federal Election Campaign Act of 1971 (1972) (Pub L No 92-225, sec 403; 86 Stat 20) which had originally provided:

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"(a) Nothing in this Act shall be deemed to invalidate or make inapplicable any provision of any State law, except where compliance with such provision of law would result in a violation of a provision of this Act.

"(b) Notwithstanding subsection (a), no provision of State law shall be construed to prohibit any person from taking any action authorized by this Act or from making any expenditure (as such term is defined in section 301(f) of this Act) which he could lawfully make under this Act."

4 It should be noted that 18 USC sec 591 was repealed by section 201 of the Federal Elections Campaign Act Amendments of 1979 (1980) (Pub L No 96-187, sec 201; 93 Stat 1367). Of the repeal, the Conference Report states:

"It is the intent of the Committee that the definitions of the Federal Election Campaign Act, as amended [2 USC 431, quoted supra for definition of 'election' and 'Federal office'], be controlling whenever the provisions of Title 18 impact on federal election and political activity." HR Rep No 422, 96th Cong, 1st Sess, reprinted in US Code and Admin News, 1979, 96th Cong, 1st Sess, vol 3, pp 2860, 2885.

Thus paragraph (b) of Pub L No 93-443, sec 104, supra, is no longer effective.