Oregon Advisory Opinions September 05, 1996: OAG 96-3 (September 5, 1996)
Collection: Oregon Attorney General Opinions
Docket: OAG 96-3
Date: Sept. 5, 1996
Advisory Opinion Text
OAG 96-3.
This opinion concerns ORS 260.174, which restricts the receipt of campaign contributions by legislators and statewide officials during the legislative session.
ORS 260.174(fn1) provides, in pertinent part:(fn2)
(1) No legislative official, statewide official or candidate therefor shall attempt to receive or to solicit or receive or solicit a campaign contribution to
the official or candidate or the official's or candidate's principal campaign committee or attempt to solicit or solicit a campaign expenditure in support of the official or candidate from any person or political committee during the period beginning January 1 immediately preceding a regular biennial session of the Legislative Assembly and ending upon adjournment of the regular biennial session of the Legislative Assembly, or during any special session of the Legislative Assembly.
This statute addresses the state's concern in avoiding inappropriate influence, or the appearance thereof, due to the receipt of campaign contributions by legislators during the legislative session.
The doctrine of federal preemption derives from Article VI of the United States Constitution, which provides that the laws of the United States "shall be the supreme Law of the Land; * * * any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." US Const Art VI, cl 2. Whether a particular state law is preempted by federal legislation is answered by determining Congress' intent in adopting the federal statute. Cipollone v. Liggett Group, Inc., 505 US 504, 112 S Ct 2608, 2617, 120 L Ed2d 407, 422 (1992). When Congress has expressly spoken on the preemptive scope of federal legislation, the actual language identifying the reach of the preemption controls. Id. at 423.
Congress adopted FECA in 1971 to regulate federal elections. Federal Election Campaign Act of 1971, Pub L No. 92-225, 86 Stat 23 (1971) (codified at 2 USC §§ 431 -- 454). At that time, FECA had a savings clause which preserved state laws, except when compliance with state law would result in a violation of FECA or would prohibit conduct permitted by FECA. 2 USC § 453. In 1974, FECA was amended to limit political contributions and campaign expenditures, and the savings clause, 2 USC § 453, was changed to an express preemption provision,(fn3) which states:
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.
In 2 USC § 453, Congress expressly stated its intent for FECA, and the rules prescribed thereunder, to preempt any state law "with respect to election to Federal office." Thus, the remaining task is to identify the reach of this phrase.
To enforce FECA, Congress created the Federal Elections Commission (FEC). The FEC has primary responsibility to enforce and administer the Act. Buckley v. Valeo, 424 US 1, 109, 96 S Ct 612, 678, 46 L Ed2d 659 (1976).
Congress has given the FEC authority to adopt rules and regulations to carry out the provisions of FECA. 2 USC § 438(a)(8). The FEC also may issue advisory opinions when requested. 2 USC §§ 437d(a)(7), 437f.
The FEC has adopted a rule that elaborates and interprets the express statutory preemption declaration. 11 CFR § 108.7 provides:
(a) The provisions of the Federal Election Campaign Act of 1971, as amended, and rules and regulations issued thereunder, supersede and preempt any provision of State law with respect to election to Federal office.
(b) Federal law supersedes State law concerning the ---
(1) Organization and registration of political committees supporting Federal candidates;
(2) Disclosure of receipts and expenditures by Federal candidates and political committees; and
(3) Limitation on contributions and expenditures regarding Federal candidates and political committees.
(c) The Act does not supersede State laws which provide for the ---
(1) Manner of qualifying as a candidate or political party organization;
(2) Dates and places of elections;
(3) Voter registration;
(4) Prohibition of false registration, voting fraud, theft of ballots, and similar offenses; or
(Emphasis added.)(5) Candidate's personal financial disclosure.
The question is whether ORS 260.174(1) concerns "limitation on contributions and expenditures regarding Federal candidates and political committees" and thus is preempted as applied to federal candidates or committees, or whether it addresses only state law concerns that are not preempted by the federal law.
We presume that ORS 260.174 was adopted in order to preserve the integrity of the state legislative process by ensuring that state legislators and elected statewide officials are not subjected to conflicting pressures during legislative sessions by accepting campaign contributions at the same time that legislation is pending. From Oregon's point of view, the legislation is aimed at certain state elected officials and this state's legislative process, and is not adopted in order to regulate federal elections or candidates. Nonetheless, the statute does impact federal elections in that it restricts the period of time during which contributions to a federal candidate or federal political committee may be accepted, if the federal candidate or former federal candidate is also an affected state legislative or statewide elected official.
The United States Court of Appeals for the Eleventh Circuit recently held that a Georgia statute similar to ORS 260.174 is preempted by FECA, to the extent that it applied to a state legislator who wished to accept contributions for a federal campaign.(fn4) Teper v. Miller, 82 F3d 989 (11th Cir 1996). The court explained that the laudable purpose of the state law is not material in assessing whether it is preempted by federal law.
Id. at 995 (emphasis in original) (citations omitted). Noting that the Georgia law's restriction on when a candidate may accept campaign contributions is simply one type of "limitation on contributions" within the meaning of 11 CFR § 108.7(b)(3), the court concluded that any remaining ambiguity as to the preemptive effect of FECA was resolved by the FEC advisory opinions. 82 F3d at 996. In these opinions the FEC has consistently taken the position that state statutes limiting the time period when federal candidates may accept campaign contributions are preempted by federal law.(fn5) Id.To be sure, the Georgia Ethics in Government Act is an admirable example of self-regulation by incumbent state legislators, and it is not specifically directed toward federal elections. Nonetheless, it is the effect of the state law that matters in determining preemption, not its intent or purpose. Under the Supremacy Clause, state law that in effect substantially impedes or frustrates federal regulation, or trespasses on a field occupied by federal law, must yield, no matter how admirable or unrelated the purpose of the law.
We believe that Oregon's statute would be interpreted in the same manner as the similar Georgia statute.(fn6) See also Weber v. Heaney, 995 F2d 872 (8th
Cir 1993) (Minnesota's Congressional Campaign Reform Act which provided public funding to congressional candidates who agreed to limit their expenditures preempted by FECA). Therefore, we conclude that ORS 260.174 cannot be applied to contributions made to federal candidates or to federal political committees for former federal candidates, because this application of the state statute is preempted by FECA. ORS 260.174 may continue to be enforced with respect to contributions made to state candidates and state principal campaign committees.(fn7)
Footnotes:
1 ORS 260.174 was originally enacted in 1974 as part of a legislative referral to the voters at the 1974 general election. The ballot measure created the Oregon Government Ethics Commission (now called the Government Standards and Practices Commission) and adopted the Code of Ethics and lobbyist regulations. As originally adopted with that legislation, the contribution ban applied only to lobbyists. Or Laws 1974 (ss), ch 72, § 7 (codified as ORS 171.756). In 1989, it was codified as ORS 244.040 (part of the Code of Ethics) and broadened to apply to contributions during the legislative session by any person. Or Laws 1989, ch 340, § 3. In 1991, the statute was amended to add special sessions to the period of time during which contributions were prohibited. Or Laws 1991, ch 146, § 1. The prohibition was then moved to ORS 260.725 (under the jurisdiction of the Secretary of State, Elections Division) in 1993. Or Laws 1993, ch 743, § 22. It was renumbered as ORS 260.174 during the codification of the 1995 session laws, although it was not amended in 1995.
2 The statute contains similar prohibitions for a Governor, Governor-elect or candidate for Governor, but the prohibitions extend 30 days beyond adjournment. ORS 260.174(2).
3 FECA was upheld in part and struck down in part in Buckley v. Valeo, 424 US 1, 96 S Ct 612, 46 L Ed2d 659 (1976). The scope of the preemption provision, 2 USC § 453, was not an issue in that case.
4 The Georgia statute provides:
OCGA § 21-5-35(a).No member of the General Assembly or that member's campaign committee or a public officer elected statewide or campaign committee of such public officer shall accept a contribution during a legislative session.
5 The FEC advisory opinions take the position that laws similar to Oregon's are preempted by the FECA. According to the FEC, state laws restricting contributions to federal candidates who are also state officials fall within the express preemption for laws concerning "limitation on contributions and expenditures regarding Federal candidates and political committees." Advisory Opinion (AO) 1995-48 (Georgia), AO 1994-2 (Minnesota), AO 1993-25 (Wisconsin), AO 1992-43 (Washington), AO 1989-12 (Indiana), and AO 1988-21 (Orange County, California). The Georgia advisory opinion involved the same statute at issue in Teper v. Miller, 82 F3d 989.
6 We have considered the arguments that can be raised to reach a contrary conclusion. Two courts have found no preemption of state laws that forbid certain public employees from making political contributions, including contributions to federal candidates. Reeder v. Kansas City Bd. of Police Com'rs, 733 F2d 543 (8th Cir 1984), cert den 479 US 1065, 107 S Ct 951, 93 L Ed2d 1000 (1987); Pollard v. Board of Police Com'rs, 665 SW2d 333 (Mo 1984) (en banc), cert den 473 US 907, 105 S Ct 3534, 87 L Ed2d 657 (1985). Both courts relied upon express legislative history that Congress did not intend to preempt state laws that restricted contributions by the state's own employees under "Little Hatch Acts." 733 F2d at 546, 665 SW2d at 337. Those cases are factually distinguishable because the state laws in question restricted state public employees from making contributions to federal candidates, but did not restrict the acceptance of contributions by federal candidates. Further, we do not believe that a credible argument can be made that contribution restrictions such as Oregon's fall within the areas expressly reserved to the states by 11 CFR § 108.7(c).
7 We are aware that in Shrink Missouri Government PAC v. Maupin, 922 F Supp 1413 (ED Mo 1996), the court found Missouri's statute prohibiting state legislators and statewide officials from accepting campaign contributions during legislative sessions to be unconstitutional. We have been asked only whether federal law preempts ORS 260.174 for statewide officials or legislators who are also federal candidates and who have federal campaign committees. Because we conclude that ORS 260.174 is preempted and cannot be enforced with respect to such officials or legislators, we do not address the underlying constitutionality of ORS 260.174.