May 4, 1998
Ms. Yvonne Southerland Deputy Director State Board of Elections VIA HAND DELIVERY 133 Fayetteville St. Mall, Suite 100 Raleigh, NC 27601
Re: Advisory Opinion; Preemption of North Carolina Contribution Restrictions during Sessions;
N.C. Gen. Stat. § 163-278.13B
Dear Ms. Southerland:
You have requested an advisory opinion on whether the Federal Election Campaign Act ("FECA") of 1971 preempts North Carolina law prohibiting a member of the General Assembly from accepting contributions from lobbyists while the General Assembly is in session if the member is a candidate for the U.S. Congress. It is our opinion, after reviewing pertinent federal cases, statutes, regulations and Federal Election Commission ("FEC") advisory opinions, that North Carolina law has been preempted to the extent it applies to candidates for federal office.
The General Assembly adopted N.C. Gen. Stat. § 163-278.13B in 1997.
The statute prohibits solicitation of contributions by or the making of contributions to members of or candidates for the General Assembly or the Council of State by lobbyists or their principals while the General Assembly is in regular session. The statute makes no exception for members of the General Assembly who are candidates for a federal office.
If a state statute conflicts with federal law, it must give way under Article VI, clause 2, of the
U.S. Constitution. There is no preemption, however, unless the Congressional intent to preempt is clear. CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993).
Section 453 of FECA, as amended, 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." A regulation adopted pursuant to this provision, with the approval of Congress, further provides:
- (b)
- Federal law supersedes State law concerning the
- (1)
- Organization and registration of political committees supporting Federal candidates and 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
- (5)
- Candidate’s personal financial disclosure.
These statements of the intent to preempt have been routinely followed by the FEC and the courts. The FEC has issued several advisory opinions dealing with the question of when state law affecting contributions to or solicitations by state elected officials running for federal office is preempted by the federal legislation. In these advisory opinions, the FEC has found statutes similar to North Carolina’s in Wisconsin (Advisory Opinion 1993-25), Minnesota (Advisory Opinion 1994-2), and Georgia (Advisory Opinion 1995-48) to be preempted. In addition, the Eleventh Circuit in Teper v. Miller, 82 F.3d 989 (11th Cir. 1996), and the Eighth Circuit in Weber v. Heaney, 995 F. 2d 872 (8th Cir. 1993), have found that state law was preempted. The Teper case is particularly instructive because it involves a Georgia statute which provided that no member of its legislature or candidate for statewide office could accept a contribution during a legislative session. The court held the statute, as applied to candidates for federal office, was preempted.
Given this clear history of congressional intent to preempt the area of law governing contributions to candidates for federal office, we conclude that as a result of constitutional and federal law N.C. Gen. Stat. § 163-278.13B is preempted as applied to candidates for federal office.
signed by:
Ann Reed Senior Deputy Attorney General
Susan K. Nichols
Special Deputy Attorney General