AO 2009-21: FECA preempts West Virginia law affecting federal candidates

The Federal Election Campaign Act (the Act), preempts a West Virginia law insofar as it limits polling expenditures by federal candidates and their principal campaign committees.

Background

West Virginia law allows political committees to pay for a limited number of election expenses. Allowed expenses include public opinion polls, which are prohibited from being "deceptively designed" or conducted in a manner that would influence anyone polled to vote for or against "any candidate, group of candidates, proposition or other matter to be voted on by the public at any election." Furthermore, Chapter 3 of the West Virginia Code, concerning elections, explicitly applies to "every general, primary, and special election in which candidates are nominated or elected" and defines "any election" or "all elections" to include elections for federal offices.

In response to a complaint from a citizen alleging that Ms. Anne Barth, a candidate for the 2nd Congressional District of West Virginia, and Anne Barth for Congress (the Barth Committee), her principal campaign committee, conducted a poll in violation of West Virginia Code 3-8-9(a)(10), the West Virginia Secretary of State sought information about the poll from both the Barth Committee and the polling company. Counsel for the Barth Committee responded that federal law preempts West Virginia law on this subject, citing AO 1995-41. The Secretary of State maintained that state laws held jurisdiction in the matter and sought an advisory opinion to that effect, asking if the West Virginia statute regulating spending for election expenses by political committees is preempted by the Act or Commission regulations with respect to federal candidates.

Analysis

The Act and Commission regulations preempt West Virginia law insofar as it purports to regulate spending by federal candidates and their principal campaign committees. The Act states that its provisions and rules "supersede and preempt any provision of State law with respect to election to Federal office." 2 U.S.C. §453; see also 11 CFR 108.7(a). The legislative history indicates that Congress intended "to make certain that the Federal law is construed to occupy the field with respect to elections to Federal office and that Federal law will be the sole authority under which such elections will be regulated." HR Rep. No 93-1239, 93d Cong, 2d Sess. 10 (1974).

Moreover, in promulgating regulations at 11 CFR 108.7, which address Commission regulations' effect on state law, the Commission stated that federal law supersedes state law with respect to the organization and registration of political committees supporting federal candidates, disclosure of receipts and expenditures by federal candidates and political committees and the limitations on contributions and expenditures regarding federal candidates and political committees. See Explanation and Justification of the Disclosure Regulations, House Document No. 95-44, at 51 (1977). In contrast, the manner of qualifying as a candidate or political organization, the date and place of election, voter registration, voting fraud, ballot theft, candidate financial disclosure, or funds used to purchase or build a state or local party office building are left exclusively to the jurisdiction of the states. See H.R. Rep. No. 93-1438 at 69, 100-101 and 11 CFR 108.7(c).

In this case, the West Virginia statute at issue limits expenditures by federal political committees (including candidate committees), which is one of the areas specifically regulated by the Act and Commission regulations. Furthermore, the West Virginia statute does not address any of the areas that Congress intended to leave exclusively to the jurisdiction of the states (the manner of qualifying as a candidate or political organization, date and place of election, voter registration, voting fraud, ballot theft, candidate financial disclosure, or funds used to purchase or build a State or local party office building).

Accordingly, the West Virginia statute is expressly preempted by federal law with respect to federal elections. 2 U.S.C. §453; 11 CFR 108.7(b)(3).

Commission regulations govern permissible and prohibited expenditures by federal candidates, including expenditures for polling expenses. 11 CFR 100.131-155, 106.2, 106.4, 113.2, 116.2, 116.11 and 116.12. With respect to this request, the West Virginia statute, if applied to federal candidates, would impede those candidates' ability to make payment of polling expenses governed by the Act and Commission regulations. Under the Act's preemption clause, only federal law could limit the ability of a federal candidate to make expenditures for polling. 2 U.S.C. §453.

Similarly, in AO 2000-23, in which the Commission concluded that because a New York statute limited state party expenditures regarding federal candidates, rather than "those areas defined as interests of the State," the New York law was preempted by the Act and Commission regulations.

Therefore, the Commission concludes that, because West Virginia. Code 3-8-9 limits expenditures by candidates and their principal campaigns that are otherwise lawful under the Act and Commission regulations, the West Virginia statute is preempted where federal candidates and their principal campaign committees—such as Ms. Barth and the Barth Committee—are concerned.

AO 2009-21: Date Issued: August 28, 2009; Length: 5 pages.