Teper v. Miller

United States Court of Appeals,

Eleventh Circuit.

No. 96-8147.

Doug TEPER, Louis Feingold, Alan Ulman, Plaintiffs-Appellees,

v.

Zell MILLER, in his official capacity as Governor of the State of

Georgia, Michael Bowers, in his official capacity as Attorney

General of the State of Georgia, Max Cleland, in his official

capacity as Secretary of State of the State of Georgia, Steven

Scheer, Steven White, Michael D. Mcrae, Brian Foster, in their

official capacities as Members of the Georgia State Ethics

Commission, Defendants-Appellants.

April 24, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:96-CV-9-WBH), Willis B. Hunt, Jr.,

Judge.

Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior

Circuit Judge.

KRAVITCH, Circuit Judge:

Officials of the State of Georgia appeal the grant of a

preliminary injunction against enforcement of O.C.G.A. § 21-5-35 to

prohibit a member of the General Assembly from accepting

contributions for a campaign for federal office while the General

Assembly is in session. The court (Judge Hill dissenting) affirms

the district court's grant of the preliminary injunction,

concluding that the Georgia statute is preempted by the Federal

Election Campaign Act.

I.

Doug Teper is a member of the Georgia General Assembly who is

contemplating a campaign for federal office; Teper's co-plaintiffs

are potential contributors to his federal campaign. As a member of

the General Assembly, Teper is precluded by a provision of the

Georgia Ethics in Government Act, O.C.G.A. § 21-5-35, from

accepting campaign contributions during any legislative session.

The most recent session of the General Assembly began on January 8,

1996, and ran through the beginning of April.1 Teper asserts that

had he been barred from accepting contributions for his federal

1

The General Assembly session ended after oral argument in

this case but before this opinion had issued. Adjournment of the

General Assembly session did not render the case moot, however.

The Supreme Court has recognized that often in cases challenging

rules governing elections there is not sufficient time between

the filing of the complaint and the election to obtain judicial

resolution of the controversy before the election. Consequently,

the Court has allowed such challenges to proceed under the

"capable of repetition yet evading review" exception to the

mootness doctrine. See Norman v. Reed, 502 U.S. 279, 286-89, 112

S.Ct. 698, 704-05, 116 L.Ed.2d 711 (1992); First Nat'l Bank of

Boston v. Bellotti, 435 U.S. 765, 772-76, 98 S.Ct. 1407, 1414-15,

55 L.Ed.2d 707 (1978); Moore v. Ogilvie, 394 U.S. 814, 814-16,

89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); see also American

Civil Liberties Union v. Florida Bar, 999 F.2d 1486, 1496-97

(11th Cir.1993).

This exception applies under two conditions: "(1) the

challenged action was in its duration too short to be fully

litigated prior to its cessation or expiration, and (2)

there was a reasonable expectation that the same complaining

party would be subject to the same action again." Weinstein

v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46

L.Ed.2d 350 (1975) (per curiam); see also News-Journal

Corp. v. Foxman, 939 F.2d 1499, 1507 (11th Cir.1991).

Application of the "capable of repetition yet avoiding

review" exception is particularly appropriate in cases like

Teper's presenting "as applied" challenges to state law,

because "[t]he construction of the statute, an understanding

of its operation, and possible constitutional limits on its

application, will have the effect of simplifying future

challenges, thus increasing the likelihood that timely filed

cases can be adjudicated before an election is held."

Storer v. Brown, 415 U.S. 724, 737-38, 94 S.Ct. 1274, 1282-

83 n. 8, 39 L.Ed.2d 714 (1974). Given that our decision in

this expedited appeal has come too late for the current

legislative session, because Teper himself certainly could

desire to accept campaign contributions during a future

session, and in view of the importance of this issue and its

possible bearing on other similarly situated state elected

officeholders, this case is not mooted just because the

General Assembly recently has adjourned.

campaign until the end of the session, he would have been seriously

disadvantaged relative to other federal candidates who are not

state officials. Indeed, he might have been faced with the dilemma

of resigning from state office or foregoing his federal campaign.

Teper contends that § 21-5-35 is preempted by federal campaign

finance laws, which place no such prohibition on the timing of

campaign contributions. In particular, the Federal Election

Campaign Act ("FECA"), 2 U.S.C. § 431 et seq., includes a

preemption provision, which states that "[t]he 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." 2 U.S.C. § 453.

On January 2, 1996, Teper filed a motion in district court

requesting a preliminary injunction prohibiting Georgia state

officials ("the State") from enforcing § 21-5-35 as it applies to

candidates for federal office. The district court, after

concluding that Teper had standing to challenge the state statute,

determined that Teper had a substantial likelihood of success on

the merits of his claim that § 21-5-35 was preempted by FECA and

regulations promulgated by the Federal Election Commission ("FEC")

under the Act.2 Consequently, the district court preliminarily

enjoined enforcement of § 21-5-35 as it relates to federal

2

In addition to the winning preemption claim, Teper argued

to the district court that enforcement of § 21-5-35 violated the

First Amendment and the Equal Protection Clause. The district

court did not reach these claims, and they are not before this

court on appeal.

elections.3

II.

The sole issue on appeal is whether Teper has a substantial

likelihood of success on the merits of his claim that O.C.G.A. §

21-5-35 is preempted by FECA and FEC regulations. The district

court, in granting Teper a preliminary injunction, concluded that

O.C.G.A. § 21-5-35, as applied to federal candidates, falls within

the scope of FECA's preemption provision. We review the ultimate

decision of whether to grant a preliminary injunction for abuse of

discretion, but we review de novo determinations of law made by the

district court en route. Haitian Refugee Ctr., Inc. v. Baker, 953

F.2d 1498, 1505 (11th Cir.), cert. denied, 502 U.S. 1122, 112 S.Ct.

1245, 117 L.Ed.2d 477 (1992). The interpretation and application

of a federal statute raises an issue of law, subject to plenary

review. See, e.g., United States v. McLeod, 53 F.3d 322, 324 (11th

Cir.1995).

Preemption doctrine is rooted in the Supremacy Clause and

grows from the premise that when state law conflicts or interferes

with federal law, state law must give way. See, e.g., CSX Transp.,

Inc. v. Easterwood, 507 U.S. 658, 662-64, 113 S.Ct. 1732, 1737, 123

L.Ed.2d 387 (1993); Cipollone v. Liggett Group, Inc., 505 U.S.

3

In order to warrant the grant of a preliminary injunction,

a plaintiff has the burden of proving four factors: (1) a

substantial likelihood of success on the merits; (2) a

substantial threat of irreparable injury in the injunction were

not granted; (3) that the threatened injury to the plaintiff

outweighs the harm an injunction may cause the defendant; and

(4) that granting the injunction would not disserve the public

interest. See, e.g., Church v. City of Huntsville, 30 F.3d 1332,

1342 (11th Cir.1994). The district court found that Teper had

established the second, third, and fourth of these factors before

proceeding to focus on the first.

504, 515-16, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992).

Federalism concerns counsel that state law should not be found

preempted unless that is "the clear and manifest purpose of

Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67

S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). "Clear and manifest" does

not necessarily mean "express," however, and Congress's intent to

preempt can be implied from the structure and purpose of a statute

even if it is not unambiguously stated in the text. Jones v. Rath

Packing Co., 430 U.S. 519, 523-25, 97 S.Ct. 1305, 1309, 51 L.Ed.2d

604 (1977).

The Supreme Court has identified three categories of

preemption: (1) "express," where Congress "define[s] explicitly

the extent to which its enactments pre-empt state law," English v.

General Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 2275, 110

L.Ed.2d 65 (1990); (2) "field," in which Congress regulates a

field so pervasively, or federal law touches on a field implicating

such a dominant federal interest, that an intent for federal law to

occupy the field exclusively may be inferred; (3) "conflict,"

where state and federal law actually conflict, so that it is

impossible for a party simultaneously to comply with both, or state

law "stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress," Hines v. Davidowitz,

312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). See

English, 496 U.S. at 78-80, 110 S.Ct. at 2275. Preemption of any

type "fundamentally is a question of congressional intent." Id.

In order to decide the preemptive effect of FECA on O.C.G.A.

§ 21-5-35, we must juxtapose the state and federal laws, demarcate

their respective scopes, and evaluate the extent to which they are

in tension.

O.C.G.A. § 21-5-35(a) provides, "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." A

"contribution" is defined to include "a gift, subscription,

membership, loan, forgiveness of debt, advance or deposit of money

or anything of value conveyed or transferred for the purpose of

influencing the nomination for election or election of any person

for office." "Office" is understood to include federal offices.

The Attorney General of Georgia has described the purpose of

the statute as follows:

It is clear that the General Assembly intended O.C.G.A. § 21-

5-35 to prevent even the appearance of impropriety by its

members or certain state officers in accepting contributions

during a period where legislation is pending and there could

be a perception that any legislative action could be

influenced by the giving of a campaign contribution. This

strong statement by the General Assembly is consistent with

its desire that public officials not be influenced in the

performance of their duties by improper "political

contributions." See O.C.G.A. § 16-10-2 (bribery prohibited);

see also State v. Agan, 259 Ga. 541 [384 S.E.2d 863] (1989),

cert. denied, 494 U.S. 1057 [110 S.Ct. 1526, 108 L.Ed.2d 765]

(1990).

Op. Att'y Gen. U95-27. The State similarly describes § 21-5-35 as

"regulat[ing] the actions of state officials in order to preserve

the public's faith in the integrity of the political system." Br.

of Appellants at 10. No one disputes that § 21-5-35 would have the

effect of precluding members of the General Assembly from accepting

contributions for federal campaigns while the Assembly is in

session.

Nor does anyone dispute the well established "constitutional

power of Congress to regulate federal elections." Buckley v.

Valeo, 424 U.S. 1, 13, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976).

The Federal Election Campaign Act of 1971 (as amended), 2 U.S.C. §

431 et seq., creates an intricate federal statutory scheme

governing campaign contributions and expenditures related to

federal elections.4 Various FECA provisions detail the structure

of political committees, impose reporting requirements, empower and

design the FEC, place limitations on the amounts of campaign

contributions and expenditures by individuals and corporations, and

restrict the use of such funds.

FECA was amended in 1974 to include a preemption provision,

which states that "[t]he provisions of this Act, and of rules

prescribed under this Act, supersede and preempt any provisions of

state law with respect to election to Federal office." 2 U.S.C. §

453. The current § 453 replaced a prior provision that included a

savings clause, expressly preserving state laws, except where

compliance with state law would result in a violation of FECA or

would prohibit conduct permitted by FECA. See Federal Election

Campaign Act of 1971, Pub.L. No. 92-225, 1972 U.S.C.C.A.N. (86

4

In Buckley, 424 U.S. 1, 96 S.Ct. 612, the Supreme Court

upheld FECA's contribution limitations, record-keeping and

disclosure requirements, and provisions for public financing of

Presidential elections and conventions; however, the Court also

held that certain expenditure limitations under the Act were in

violation of the First Amendment and that the exercise of

administrative and enforcement powers delegated to the FEC was

unconstitutional because of the way the Committee members were

appointed. FECA was amended in 1976 to reconstitute the FEC to

allow it to exercise its full powers under the Act

constitutionally. See infra note 7. Otherwise, Buckley 's

effect on FECA is of no consequence for the present case.

Stat.) 23 (amended by Federal Election Campaign Act Amendments of

1974, Pub.L. No. 93-443, 1974 U.S.C.C.A.N. (88 Stat.) 1469). The

House Committee that drafted the current 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. 1239, 93d Cong., 2d Sess. 10 (1974).

"When Congress ... has included in the enacted legislation a

provision explicitly addressing [preemption], and when that

provision provides a "reliable indicium of congressional intent

with respect to state authority, there is no need to infer

congressional intent to pre-empt state laws from the substantive

provisions' of the legislation." Cipollone, 505 U.S. at 517, 112

S.Ct. at 2618 (citations omitted). The express language of the

broadly worded FECA preemption provision, illuminated by the

legislative history, may be sufficiently clear to preempt O.C.G.A.

§ 21-5-35, which could readily be understood as a "state law with

respect to election to Federal office." Likewise, this court could

determine that FECA has "occupied the field" of regulation of

federal elections and that the Georgia statute has impermissibly

strayed into this field.5

I have no doubt that the purpose of the state law is, as the

Attorney General and State assert, to prevent the appearance of

impropriety—bribery, to be precise—that may arise when state

5

In this case, express preemption via the FECA preemption

clause and field preemption are no different in practice. The

FECA preemption clause means that FECA occupies the field "with

respect to election to federal office." 2 U.S.C. § 453. The

only real issue is the effective reach of this phrase.

legislators accept campaign contributions during the period of time

when they are actually legislating. 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 that law. See

Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 105,

112 S.Ct. 2374, 2387, 120 L.Ed.2d 73 ("In assessing the impact of

a state law on the federal scheme, we have refused to rely solely

on the legislature's professed purpose and have looked as well to

the effects of the law."); Felder v. Casey, 487 U.S. 131, 138, 108

S.Ct. 2302, 2307, 101 L.Ed.2d 123 (1988) (" "[T]he relative

importance to the State of its own law is not material when there

is a conflict with a valid federal law,' for "any state law,

however clearly within a State's acknowledged power, which

interferes with or is contrary to federal law, must yield.' ")

(quoting Free v. Bland, 369 U.S. 663, 666, 82 S.Ct. 1089, 1092, 8

L.Ed.2d 180 (1962)); Napier v. Atlantic Coast Line R.R. Co., 272

U.S. 605, 612, 47 S.Ct. 207, 209-10, 71 L.Ed. 432 (1926)

(preemption depends not on whether federal and state laws "are

aimed at distinct and different evils" but whether they "operate

upon the same object").

In this case, the effect of O.C.G.A. § 21-5-35 is to place a

limitation on Teper's fundraising for his federal campaign. It

would be possible to conclude, therefore, that the state law

operates "with respect to election to Federal office," and thus

falls within FECA's express preemption provision, 2 U.S.C. § 453.6

Other courts have found express FECA preemption of state laws that

are no more, or not much more, intrusive of federal regulation.

See Bunning v. Commonwealth of Kentucky, 42 F.3d 1008 (6th

Cir.1994) (holding that § 453 preempts state law purporting to

regulate poll conducted by U.S. Congressman's federal election

committee to test the effectiveness of advertising conducted during

a federal campaign); Weber v. Heaney, 995 F.2d 872, 875 (8th

Cir.1993) (concluding that, "under every plausible reading of §

453," state law establishing system of public funding for U.S.

Congressional candidates "falls squarely within the boundaries of

the preempted domain"). And cases in which preemption was not

found invariably involve state laws that are more tangential to the

regulation of federal elections. See Karl Rove & Co. v.

Thornburgh, 39 F.3d 1273 (5th Cir.1994) (federal candidate's

personal, contractual liability for costs of direct mail

fundraising services during his campaign not preempted); Stern v.

General Elec. Co., 924 F.2d 472 (2d Cir.1991) (state law claims of

corporate waste based on corporation's contributions to federal

political campaigns not preempted); Reeder v. Kansas City Bd. of

Police Comm'rs, 733 F.2d 543 (8th Cir.1984) (ban on political

contributions by city police department employees not preempted).

I hesitate, however, to conclude summarily that the preemptive

6

Indeed, this is Judge Carnes's conclusion.

scope of § 453 is so unambiguous as to evince a "clear and manifest

purpose of Congress," Rice, 331 U.S. at 229, 67 S.Ct. at 1152, to

encompass state laws such as § 21-5-35. Because further, and more

definitive, evidence of Congress's intent is provided by the FEC's

interpretation of FECA—and because § 453 incorporates by reference

"rules prescribed under" FECA—I think it appropriate to take the

agency's view into account before finally resolving the issue.

The 1974 amendments to FECA created the FEC and "vest[ed] in

it primary and substantial responsibility for administering and

enforcing the Act," delegating to the agency "extensive rulemaking

and adjudicative powers." Buckley, 424 U.S. at 109, 96 S.Ct. at

677-78; see also FEC v. Democratic Senatorial Campaign Comm., 454

U.S. 27, 37-38, 102 S.Ct. 38, 45, 70 L.Ed.2d 23 (1981). 7 The FEC

is authorized to prescribe rules and regulations to carry out the

provisions of FEC, 2 U.S.C. § 438(a)(8), and to give, upon request,

advisory opinions concerning the application of FECA, 2 U.S.C. §§

437d(a)(7), 437f. Exercising this delegated authority, the FEC has

promulgated regulations and issued a number of advisory opinions

interpreting and applying FECA to determine its preemptive effect

on state law. With respect to the type of regulation imposed by

O.C.G.A. § 21-5-35, the FEC's interpretation of FECA is

unambiguous: such state laws are preempted.

7

In response to Buckley, the 1976 amendments to FECA

reconstituted the FEC to allow the agency constitutionally to

exercise its delegated duties and powers under the Act. See

S.Rep. No. 677, 94th Cong., 2d Sess. 1, 1-4 (1976), reprinted in

1976 U.S.C.C.A.N. 929, 929-32. The FEC was restructured as an

independent executive branch agency, comprised of six

commissioners to be appointed by the President with the advice

and consent of the Senate. No more than three of the

commissioners may be affiliated with the same political party.

A 1977 FEC regulation specifies that "Federal law supersedes

state law concerning ... [l]imitation on contributions and

expenditures regarding Federal candidates and political

committees." 11 C.F.R. § 108.7(b)(3). Interpreting this

regulation, the district court plausibly determined that, according

to the terms of the regulation, O.C.G.A. § 21-5-35 would be

preempted, for "[a] restriction on when a potential candidate may

accept contributions is simply another type of limitation." The

regulation also enumerates the following areas in which state law

is not preempted: "(1) [m]anner of qualifying as a candidate or

political party organization; (2) [d]ates and places of election;

(3) [v]oter registration; (4) [p]rohibition of false registration,

voting fraud, theft of ballots, and similar offenses; or (4)

[c]andidate's personal financial disclosure." 11 C.F.R. §

108.7(c). Although, as the State emphasizes, the regulation allows

states to legislate "[p]rohibition[s] of false registration, voting

fraud, theft of ballots, and similar offenses," § 21-5-35 is not

about voting fraud. The Georgia statute operates against fraud at

the level of governance, as in bribery of a state legislator

through campaign donations, not at the level of registering to vote

and casting ballots (which the state is free to regulate). Thus,

I am inclined to agree with the district court that the gloss this

FEC regulation places on the FECA preemption provision could be a

sufficient basis for inferring Congress's intent to preempt the

Georgia law.8

8

FECA details the requisite procedures FEC must follow in

prescribing regulations. The FEC must submit a proposed

regulation and an accompanying statement to both the House and

Any residual ambiguity as to the FEC's understanding of the

preemptive effect of FECA on the Georgia statute is conclusively

resolved by FEC advisory opinions. The FEC consistently has

expressed the opinion that FECA preempts state statutes limiting

the time frame during which federal candidates may accept campaign

contributions. See Op. FEC 1994-2 (advising that FECA preempts a

Minnesota statute barring lobbyists from contributing to a

candidate during a regular session of the state legislature); Op.

FEC 1993-25 (advising that FECA preempts a Wisconsin statute

restricting the time period during which lobbyists can contribute

to candidates); Op. FEC 1992-43 (advising that FECA preempts a

Washington statute barring state officials from accepting campaign

contributions during legislative sessions). In fact, Teper himself

wrote to the FEC in November 1995 requesting an advisory opinion on

the constitutionality of O.C.G.A. § 21-5-43. In a reply letter

dated December 5, 1995, the Associate General Counsel of the FEC

wrote that a formal advisory opinion was unnecessary because FEC

regulations and previous advisory opinions made clear that the

Georgia law was preempted. Subsequently, after the district

court's decision in this case, the FEC did address § 21-5-35 in a

formal advisory opinion,9 reiterating that the Georgia statute was

preempted by FECA. See Op. FEC 1995-48. The advisory opinion

the Senate; if neither disapproves the proposed regulation

within thirty days, the FEC may issue it. 2 U.S.C. § 438(d). We

note that Congress has seen and not disapproved 11 C.F.R. §

108.7, thus suggesting that the regulation is not inconsistent

with Congressional intent. See Weber, 995 F.2d at 876-77.

9

This formal opinion was issued in response to an inquiry by

another, more persistent, member of the Georgia General Assembly

running for Congress.

noted the district court decision in this case and concluded,

"Under the broad preemptive powers of [FECA], only Federal law

could limit the time during which a contribution may be made to the

Federal election campaign of a State legislator." Id.

Thus, even if the FECA preemption provision is not

sufficiently determinate on its face to preempt O.C.G.A. § 21-5-35,

the FEC's unambiguous understanding is that FECA preempts the state

statute. The pressing question at this point, therefore, is to

what extent this court should defer to the FEC's interpretation of

FECA. Although this court could, of course, accept the FEC's

interpretation simply as persuasive authority, in fact I believe

that we are obliged to take the FEC's interpretation as more than

merely convincing.

The Supreme Court has instructed, "When Congress, through

express delegation or the introduction of an interpretive gap in

the statutory structure, has delegated policy-making authority to

an administrative agency, the extent of judicial review of the

agency's policy determinations is limited." Pauley v. BethEnergy

Mines, Inc., 501 U.S. 680, 696, 111 S.Ct. 2524, 2534, 115 L.Ed.2d

604 (1991). This language reflects the general principle

established in the landmark case of Chevron, U.S.A., Inc. v.

National Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct.

2778, 81 L.Ed.2d 694 (1984), that if a statute is "silent or

ambiguous with respect to the specific issue" in question, courts

should accept "reasonable" administrative interpretations. See id.

at 843-44, 104 S.Ct. at 2782.

The FEC, in particular, is "precisely the type of agency to

which deference should presumptively be afforded." FEC v.

Democratic Senatorial Campaign Comm., 454 U.S. at 37, 102 S.Ct. at

45; see also Orloski v. FEC, 795 F.2d 156, 164 (D.C.Cir.1986)

(allowing the FEC's interpretation of FECA "considerable

deference"). This is not only because of the extensive

responsibility and discretion in administering FECA expressly

vested in the FEC by Congress, but also in light of the fact that

"the Commission is inherently bipartisan ... and it must decide

issues charged with the dynamics of party politics, often under the

pressure of an impending election." Id.; see also Common Cause v.

FEC, 842 F.2d 436, 448 (D.C.Cir.1988) (judicial deference

particularly appropriate in the context of FECA, which explicitly

relies on the bipartisan Commission as its primary enforcer).

Deference to FEC interpretations of FECA is appropriate not only

for rules but also for advisory opinions, given the FEC's express

statutory responsibility for issuing advisory opinions concerning

the application of FECA. 2 U.S.C. §§ 437d, 437f. See FEC v.

Colorado Republican Fed. Campaign Comm., 59 F.3d 1015, 1021 (10th

Cir.1995) (deferring to FEC interpretive advisory opinions), cert.

granted, --- U.S. ----, 116 S.Ct. 689, 133 L.Ed.2d 594 (1996); FEC

v. Ted Haley Congressional Comm., 852 F.2d 1111, 1115 (9th

Cir.1988) (FEC interpretation of FECA through regulations and

advisory opinions "entitled to due deference and is to be accepted

by the court unless demonstrably irrational or clearly contrary to

the plain meaning of the statute"); Orloski, 795 F.2d at 164 (FEC

interpretation of FECA should be given deference because FEC's

statutory responsibility to issue advisory opinions "implies that

Congress intended the Commission to fill in gaps left in the

statute and to resolve any ambiguities in the statutory

language").10

There is, however, one further twist to Chevron deference: it

may not be obvious that this court's obligation to defer to FEC

interpretations of FECA attaches even when those interpretations

address the scope of preemption of state law by federal regulation.

I recognize that the law may be unsettled in general as to the

application of Chevron to an agency's determination of its own

jurisdiction. See generally Cass R. Sunstein, Law and

Administration After Chevron, 90 Colum.L.Rev. 2071, 2097-2101

(1990). Indeed, there is an inherent tension between Chevron

deference, which only obtains where a statute is "silent or

ambiguous," Chevron, 467 U.S. at 843, 104 S.Ct. at 2782, and

preemption doctrine, which maintains that state law will not be

preempted unless that is "the clear and manifest purpose of

Congress," Rice, 331 U.S. at 230, 67 S.Ct. at 1152. So, to say

that a court should defer to an agency's determination that state

law is preempted is seemingly paradoxical: the agency would

command deference under Chevron only if the federal statute were

ambiguous; but if the federal statute were ambiguous, then

10

The fact that the multiple FEC advisory opinions

interpreting FECA to preempt state regulations of the timing of

campaign contributions have been consistent further militates in

favor of deference. See, e.g., Wagner Seed Co. v. Bush, 946 F.2d

918, 921-22 (D.C.Cir.1991) (in the course of concluding that EPA

interpretation issued via decision letter entitled to deference,

noting that interpretation was given "in order to resolve an

important and recurring matter before it," and that "agency has

applied this interpretation consistently"), cert. denied, 503

U.S. 970, 112 S.Ct. 1584, 118 L.Ed.2d 304 (1992).

Congress's intent to preempt seemingly would not be "clear and

manifest." Furthermore, although separation of powers (or

institutional competence) concerns might counsel in favor of

courts' deferring to agencies in the resolution of ambiguous

questions of statutory interpretation,11 countervailing federalism

concerns offset this rationale for Chevron deference in preemption

cases. Although federal agencies are more democratically

accountable than courts, state legislatures are arguably yet more

politically accountable. In the abstract, then, it is not at all

clear that a state's view that a federal statute does not preempt

state law should give way to a federal agency's view that the

statute does preempt.

Fortunately, I need not completely untangle this knotty issue

of jurisprudence in order to conclude that the FEC's interpretation

of FECA is entitled to deference in this case. In City of New York

11

The Chevron Court articulated this rationale in passages

such as this:

Judges are not experts in the field, and are not

part of either political branch of the Government....

When a challenge to an agency construction of a

statutory provision, fairly conceptualized, really

centers on the wisdom of the agency's policy, rather

than whether it is a reasonable choice within a gap

left open by Congress, the challenge must fail. In

such a case, federal judges—who have no

constituency—have a duty to respect legitimate policy

choices made by those who do. The responsibilities for

assessing the wisdom of such policy choices and

resolving the struggle between competing views of the

public interest are not judicial ones: "Our

Constitution vests such responsibilities in the

political branches." TVA v. Hill, [437 U.S. 153, 195]

98 S.Ct. 2279, 2302 [57 L.Ed.2d 117] (1978).

467 U.S. at 866, 104 S.Ct. at 2793.

v. FCC, a unanimous Court clarified the law sufficiently to settle

the issue before us:

[17, 18] It has long been recognized that many of the

responsibilities conferred on federal agencies involve a broad

grant of authority to reconcile conflicting policies. Where this

is true, the Court has cautioned that even in the area of

pre-emption, if the agency's choice to pre-empt "represents a

reasonable accommodation of conflicting policies that were

committed to the agency's care by the statute, we should not

disturb it unless it appears from the statute or its legislative

history that the accommodation is not one that Congress would have

sanctioned."

486 U.S. 57, 108 S.Ct. 1637, 1642, 100 L.Ed.2d 48 (1988) (quoting

United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6

L.Ed.2d 908 (1961), and citing Capital Cities Cable, Inc. v. Crisp,

467 U.S. 691, 698-700, 104 S.Ct. 2694, 2700, 81 L.Ed.2d 580

(1984)). An agency like the FEC, to which Congress has delegated

broad discretion in interpreting and administering a complex

federal regulatory regime, is entitled to significant latitude when

acting within its statutory authority, even in its decisions as to

the scope of preemption of state law. See also Fidelity Fed.

Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 151-55, 102

S.Ct. 3014, 3022-23, 73 L.Ed.2d 664 (1982). But cf. Louisiana Pub.

Serv. Comm'n v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369

(1986) (overturning agency preemption determination without mention

of Chevron deference). In other words, even if a statute is on its

face ambiguous, Congress's intent to preempt may be clear when the

administrative agency expressly responsible for interpreting and

implementing the statute has clarified it.

Finally, the State has failed to construct a compelling

argument that the FEC's interpretation of the preemptive effect of

FECA is unreasonable or inconsistent with Congressional intent. To

the contrary, I find the FEC's interpretation persuasive and

corroborative of my own (and the district court's) understanding of

the scope of the FECA preemption provision. Thus, even if the FECA

preemption provision, read in light of the purposes and structure

of the Act, is not adequately clear to preempt the Georgia statute

expressly, FEC's interpretation of the statute settles the matter.

I conclude that O.C.G.A. § 21-5-35, as applied to candidates for

federal office, is preempted. Thus, the district court correctly

decided that Teper has a substantial likelihood of success on the

merits.

The district court's grant of a preliminary injunction is

AFFIRMED.

CARNES, Circuit Judge, concurring:

I concur in the Court's holding that O.C.G.A. § 21-5-35, which

has the effect of limiting the time for making contributions to

some candidates for federal office, is preempted by the Federal

Election Campaign Act, 2 U.S.C. § 431 et seq. ("FECA"). However,

I would base that conclusion upon the express language of the

preemption clause in the act, 2 U.S.C. § 453, which states

unambiguously that the provisions of the act and rules prescribed

under it, "supersede and preempt any provision of State law with

respect to election to Federal office." (emphasis added) A state

law regulating the time in which a category of citizens can accept

contributions to run for election to federal office is a "State law

with respect to election to Federal office." It is as simple as

that. Moreover, nothing in either the legislative history of the

act or in the rules and regulations adopted by the Federal Election

Commission casts any doubt upon the clear and manifest preemptive

purpose of Congress as plainly stated in the act itself.1

The discussion in Judge Kravitch's opinion about the deference

that might be due the Commission's regulations and advisory

opinions if there were any ambiguity in FECA's preemption language

is, in my view, unnecessary to proper decision of this appeal,

because there is no ambiguity in the statutory language.

Accordingly, while I agree that FECA preempts O.C.G.A. § 21-5-35,

I do not join the part of Judge Kravitch's opinion that discusses

the effect of the Federal Election Commission's regulations and

advisory opinions.

HILL, Senior Circuit Judge, dissenting:

I dissent and I state my reason succinctly:1 "The fleas come

with the dog."

First, there is no issue as to whether or not the federal law,

1

The legislative history discussed in Judge Hill's

dissenting opinion does not cast such doubt. Although a Senate

conference report does state, "It is the intent of the conferees

that any State law regulating the political activities of State

and local officers and employees is not preempted or superseded

by the amendments to [the FECA]," S.Conf.Rep. No. 1237, 93d

Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 5618,

5669, it is clear that this statement was aimed at preserving the

so-called "little Hatch acts" of the states, not at permitting

direct regulation of the activities of federal candidates. See

Weber v. Heaney, 995 F.2d 872, 876-77 (8th Cir.1993) (overturning

state law creating monetary incentives for federal candidates to

limit campaign expenditures); Reeder v. Kansas City Bd. of

Police Comm'rs, 733 F.2d 543, 545-46 (8th Cir.1984) (upholding a

"little Hatch act").

1

Today, our panel's judgment does, in effect, release

appellee Teper from restraint of Georgia law. While I disagree,

I realize that this judgment ought to be mandated right away. I

should not be the instrument of delay while engaging in lengthy

opinion writing. [NOTE: This was written and submitted while

the Georgia legislature was still in session.]

FECA, preempts state law. It does so, explicitly. Therefore, what

federal law controls, state law may not.

That is not the end of the inquiry. The preemption is

coextensive with FECA—no more, no less. So, we should determine

how far FECA goes. We may look to legislative history to

understand FECA.2

In Reeder v. Kansas City Bd. of Police Comm'rs, 733 F.2d 543

(8th Cir.1984), the Eighth Circuit did just that:

The conference report on the bill that became the 1974

amendment leaves little room for doubt on this question. The

report says:

It is the intent of the conferees that any State law

regulating the political activities of State and local

officers and employees is not preempted or superseded by

the amendments to title 5, United States Code, made by

this legislation.

S.Conf.Rep. No. 93-1237, 93d Cong., 2d Sess., reprinted in

1974 U.S.Code Cong. & Ad.News 5587, 5618, 5669. Furthermore,

right before the conference report was agreed to by the

Senate, a colloquy took place between Senator Stevens and

Senator Cannon that covers this very point. Senator Cannon

2

Briefs have argued, correctly, that we need not look to the

legislative history of this Act to determine preemption vel non.

That is correct, but the extent of the reach of FECA, and,

therefore, just what it preempts, is not so clear.

Our majority finds comfort, in footnote 7 to the

opinion, in noting that, long after the passage of FECA and

its 1974 amendment, the Commission submitted its proposed

regulation to Congress and was not allowed to promulgate it

prior to the expiration of thirty days. Noting that

Congress did not disapprove the proposed regulation, our

majority believes that this suggests a congressional

interpretation of FECA in accord with that of the

Commission.

We have a long line of cases, however, which hold that

once a bill has become an Act, the interpretation of it is

for the Third Branch. Post hoc expressions by

legislators—what then-Judge Scalia called "subsequent

legislative history"—is of no weight. See Gott v. Walters,

756 F.2d 902, 914 (D.C.Cir.1985).

was Chairman of the Committee of Rules and Administration,

from which the bill was reported, senior conferee on the part

of the Senate, and manager of the bill on the Senate floor, so

his remarks must be given special weight in determining what

Congress meant to say. Mr. Cannon stated that "any State law

regulating the political activity of State or local officers

or employees is not preempted [or] ... superseded." 120

Cong.Rec. 34386 (Oct. 8, 1974). "It [would be] ... up to the

State to determine the extent to which they may participate in

Federal elections.[.]" Ibid. (remarks of Senator Stevens).

Reeder, 733 F.2d at 545-46.

When a law says that one may avail oneself of a right—as FECA

says a federal candidate may solicit and receive campaign

funds—that law does not forbid the candidate from voluntarily

surrendering that right.

It happens all the time.

Georgia law, itself, circumscribes participation in charitable

fund raising activities. See O.C.G.A. § 43-17-2, et seq. If one

meets and complies with the requirements, it would seem that one

may conduct a fund raising campaign.

But I think that a judge may not. Fund raising would violate

a canon applicable specifically to the office. See Georgia Code of

Judicial Conduct, Canon 5(B)(2). The judge has accepted a position

of trust. By doing so, he or she has relinquished the right to

solicit funds, though all the rest may do so. So you see, the

fleas, do indeed, come with the dog.

The above does not implicate preemption. It illustrates

proper construction of statutes in apparent tension but fully

compatible.

The same principles of construction may be employed where

preemption of one rule is clear. Our Bill of Rights trumps all

aces. No provision of law is more preemptive.

For example, free expression is protected by the First

Amendment; there may be no state law to the contrary. Indeed, in

spite of some strong disapproval of states (and many of their

citizens), some conduct deemed free expression embodied in rather

bizarre entertainment is not subject to state regulation. See

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115

L.Ed.2d 504 (1991); see also Redner v. Dean, 29 F.3d 1495 (11th

Cir.1994).

At the same time, the sale and consumption of beverage alcohol

is peculiarly subject to state regulation. When the Eighteenth

Amendment's "war on whiskey" ended with the Twenty-first Amendment,

control of alcohol was given to the states.

The upshot of this is that, while Georgia may not prohibit

scantily clad terpsichorean performers from performing (it's

protected expression), Georgia can absolutely prohibit the sale of

alcohol at places where dancers dance. See New York State Liquor

Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357

(1981); see also Geaneas v. Willets, 911 F.2d 579 (11th Cir.1990).

The state, preempted by the First Amendment, is not undertaking to

regulate dancers qua dancers. It is validly regulating the sale

and consumption of alcohol qua alcohol.

In the case before us, I see no indication that Georgia has

undertaken to regulate candidates for federal office qua

candidates. The state undertakes—validly, I believe—to regulate

its legislators qua legislators. If appellee Teper feels that he

has unwisely encumbered himself by becoming a legislator, he holds

the key to his release in his own pocket.

I have undertaken to be deferential to the conclusions of the

Federal Election Campaign Commission that its power trumps this

state law, but I remain convinced that its interpretation is

flawed. I really doubt that the reach of FECA is more preemptive

than the First Amendment.

I would reverse.