Amicus Curiae Brief — Pollard v. Board of Police Commissioners

~ Supreme Court, Us.

3) eT LED

No. 83-2076 ‘ MAY 16 wes

SEEXRNDERE STEVAS: |

Jn the Supreme Court of the Huiles-Ststes— =

OCTOBER TERM, 1984

ROGER POLLARD, PETITIONER

v.

BOARD OF POLICE COMMISSIONERS AND

NorMAN A. CARON

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF MISSOURI

BRIEF FOR THE UNITED STATES |

AS AMICUS CURIAE

Rex E. Lee

Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

DAvID A. STRAUSS

Assistant to the Solicitor General

JOHN CORDES

CARLENE V. MCINTYRE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the Federal Election Campaign Act preempts

a Missouri statute that prohibits Kansas City police officers

from making contributions for “the promotion of * * * any

political purpose whatever,” insofar as that statute prohib-

its contributions to candidates for federal office.

2. Whether the Missouri statute violates the First

Amendment.

3. Whether the Missouri statute violates the Equal Pro-

tection Clause of the Fourteenth Amendment.

(I)

TABLE OF CONTENTS

Cases:

Page

EE en ee ee l

rE 2 Gels CNG inka ach be ekees0se0.n0 0 3

TABLE OF AUTHORITIES

Aloha Airlines v. Director of Taxation,

EU, Be BUEED ccc eccncccccesscses 9

Bruno v. Garsaud, 594 F.2d 1062 .......... 16, 17

Buckley v. Valeo, 519 F.2d 821,

EME, ea Ncdeenseavenccccves 4,9, 16

CSC v. National Association of Letter

Carriers, 413 U.S. 548 ................6:. 11, 14

FEC v. Democratic Senatorial Campaign

CR ME ELC EE occscncesccvescrcces 7

Hobbs v. Thompson, 448 F.2d 456 ........... 16

Mancuso v. Taft, 476 F.2d 187 ..........00005 16

Reeder v. Kansas City Board of Police

Commissioners, 733 F.2d 543 ............ 11, 7

Rice v. Santa Fe Elevator Corp.,

a Sy a er eee eee eee 8

San Diego Building Trades Council v. Garmon,

ck ck da wees Che sect acceese 9

Wachsman v. Dallas, 704 F.2d 160,

oert. Gemeed, 466 US. 1012 2... cccccccccccce 17

(III)

IV

Page

Constitution, statutes and regulations:

U.S. Const. :

DME Gi cchkktedvienGenmense4 2, 3, 16, 17

Amend. XIV (Equal Protection

SE a beahagdassaaNuanas sesh es oae 2, 16

Federal Election Campaign Act of 1971,

pgs ee PS Serre rey rey rere errr 2

BEE Mavic coche cadessedcekeeuas 3

BA EE ha 550.69 5405005 bob eke RES 3

eT ae FR eT eee yer ey ee Pee 3

eR | RE eer re Te TT TTT Tee 7

Pee os ere ere rere her er 7

DB a EE Sch baba sc ctesdctawnns 8

Ss 6 4 a 5b 0s stb cb dsésena'’s 7,8

phid Toms ky PPP erererTTiri res 7

PE, wet adte bin ketecews se eneee 7, 15

2 U.S.C. (Supp. IV 1974) 437f ............ 15

Re POPC OUT TEE ETT TT eT eT ee 8

Fs UE SN ow dina Ua cas uaseUSoands 3

2 Us RD inn cn asesdenraticaes 3

BUR EE Sy Adee esenesicnsese ive emde 3

Pe EE acedachabeddgactsoecs cess 4

PE Shc ccds dda etseeskdebankene 3

DE erin eR Gack ndeesevcadveueNs 3

eR Lae | | Pee PTET eS CT CTe Tee TT 4,5

V

; Page

Constitution, statutes and regulations—Continued:

2 U.S.C. (Supp. II 1972) 453 ........... 5, 14

2 U.S.C. (Supp. II 1972) 453(b) ........... 15

Federal Election Campaign Act Amendments

of 1974, Pub. L. No. 93-443, 88 Stat.

PO ee a eres ray iy ae 4

$ 104(a), 88 Stat. 1272 (codified

Ee Ss See ND hod WK kecesiv seuss 5

$ 401(a), 88 Stat. 1290 ................... i]

Federal Election Campaign Act Amendments of

1976, Pub. L. No. 94-283, 90 Stat. 475

et seq. :

Oe), 00 Bank. GER jo oc cece cess 8

EE a Svcs Cs aneaeaesueneeen 8

gre PT eee 8

GPO Sn cov ivcccncncssdcuns 8

S Tie EE 4g 55 ea bes 6 se eearacensens 11

EP Re TR ere 11

18 U.S.C. (Supp. IV 1974) 608 et seg. ........... 5

Be is PEE 6 Ocha S ad ceceieesicsevacecas 17

Mo. Ann. Stat. $ 84.830 (Vernon 1971) .... passim

FPA. Vee PD 66 4-00 beds cewesnsatenans 14

DE CA dks SEED orc veceesbevenekesneesen 7

VI

Page

Miscellaneous:

117 Cong. Rec. 43396-43397 (1971) ............ 15

120 Cong. Rec. 34386 (1974) ............ 2 eens 12

H.R. Rep. 93-1239, 93d Cong., 2d Sess.

PRE hick cade asceseciarentiesses 4,5,7, 11

H.R. Rep. 93-1438, 93d Cong., 2d Sess.

SEES Fle pene Pry ye Perr 6, 7, 12

H.R. Rep. 94-917, 94th Cong., 2d Sess .

Saas Sie hes kane ens PO ECRT coke ee enked 8

H.R. Rep. 94-1057, 94th Cong., 2d Sess

SE cic bahanr beeches tdeek avec ewnks vaccal 8

S. Rep. 94-677, 94th Cong., 2d Sess.

SNE OE a deka cas ba Kawa k baw etna eek 8

In the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-2076

ROGER POLLARD, PETITIONER

V.

BOARD OF POLICE COMMISSIONERS AND

NORMAN A. CARON

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF MISSOURI

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s invita-

tion to the Solicitor General to express the views of the

United States.

STATEMENT

1. Petitioner was a sergeant in the Kansas City, Mis-

souri,-Rolice Department. In July 1982, he contributed

$1,000 out of his own funds to a political committee formed

to promote the candidacy of an individual seeking the

Democratic nomination for United States Representative

from the Fifth District of Missouri. Petitioner’s contribu-

tion was not solicited by or paid to a member of the Police

Department and was not made on public premises or while

petitioner was in uniform. Pet. App. A25, A27.

As a result of petitioner’s contribution, and after a hear-

ing, respondents — the Chief of Police and Board of Police

Commissioners of Kansas City — terminated petitioner’s

(1)

2

employment as a police officer. They relied on Mo. Ann.

Stat. $ 84.830 (Vernon 1971), which prohibits any political

contributions by Kansas City police officers.' Petitioner

then filed suit in the Circuit Court of Jackson County,

Missouri, seeking reinstatement. Petitioner alleged that

Section 84.830, insofar as it applied to federal elections, was

preempted by the Federal Election Campaign Act of 1971

(FECA), 2 U.S.C. 431 et seqg., and that the enforcement of

Section 84.830 against him violated both the First Amend-

ment and the Equal Protection Clause of the Fourteenth

Amendment. The Circuit Court ruled in petitioner’s favor

and ordered him reinstated with back pay (Pet. App. A25-

A40); the court upheld petitioner’s preemption (id. at A30-

A35) and First Amendment (id. at A. 5-A40) claims and did

not reach his equal protection argument.

A divided Missouri Supreme Court reversed (Pet. App.

Al-A18). It rejected petitioner’s preemption claim on the

ground that the FECA preempts only “the limited field of

statutes imposing restrictions on candidates for federal

office and their campaign committees” (id. at A6). The

court also rejected petitioner’s First Amendment claim on

the ground that “the interest of the state in protecting a

metropolitan police department from political domination

‘Mo. Ann. Stat. $ 84.830 (Vernon 1971) provides:

1. * * * No officer or employee in the service of [the Kansas

City] police department shall directly or indirectly give, pay,

lend, or contribute any part of his salary or compensation or any

money or other valuable thing to any person on account of, or to

be applied to, the promotion of any political party, political

club, or any political purpose whatever.

* + ¢+ * ®

7. Any officer or any employee of the police department of such

cities who shall be found by the board to have violated any of the

provisions of this section shall be discharged forthwith from said

service. * * *

3

and influence is substantial, significant, important and

compelling” (id. at Al7). The court dismissed petiticner’s

equal protection claim as “lacking in merit” (ibid.).

Judges Welliver and Donneily dissented. Judge Welliver

stated that it was “questionable” whether the FECA

preempts Section 84.830, but he rested his dissent on the

ground that Section 84.830, while perhaps constitutional as

applied to contributions to candidates for state and local

office, violates the First Amendment as applied to federal

elections (Pet. App. A18-A20). Judge Donnelly urged that

Section 84.830 is preempted by the plain language of the

FECA (Pet. App. A21-A22). He also stated that the First

Amendment precludes the application of Section 84.830 to

federal elections (Pet. App. A22-A24).

DISCUSSION

1. a. In our view, the Missouri Supreme Court erred in

concluding that Section 84.830 is not preempted by the

FECA. The FECA contains detailed and comprehensive

limits on the amounts and sources of contributions to fed-

eral election campaigns, including the campaign of a person

seeking a nomination to run for Congress (see 2 U.S.C.

431(1), (2), and (3)). Specifically, the FECA provides that

“[njo person shall make contributions * * * to any candi-

date and his authorized political committees with respect to

any election for Federal office which, in the aggregate,

exceed $1,000” (2 U.S.C. 44la(a){1)(A)). The FECA

further prohibits corporations, labor organizations, foreign

nationals, and government contractors from making any

contributions to candidates for federal office (2 U.S.C.

441b, 441c, 44le). The FECA also regulates in detail the

aggregate contributions that may be made by individuals to

candidates and political committees (see 2 U.S.C. 441a(a)),

the establishment of segregated funds for political purposes

(commonly known as political action committees) by

4

corporations and labor unions (see 2 U.S.C. 441b(b)), and

similar matters relating to the sources of funds for federal

elections. Petitioner’s contribution — a contribution by an

individual of $1,000 — complied with these federal statu-

tory provisions.

These restrictions on the sources and amounts of cam-

paign contributions were, for the most part, enacte 4 as part

of the Federal Election Campaign Act Amendments of

1974, Pub. L. No. 93-443, 88 Stat. 1263 et seq., which have

been described as “ ‘by far the most comprehensive reform

legislation [ever] passed by Congress concerning the elec-

tion of the President, Vice-President, and members of Con-

gress.’” Buckley v. Valeo, 424 U.S. 1, 7 (1976), quoting

Buckley v. Valeo, 519 F.2d 821, 831 (D.C. Cir. 1975). When

Congress enacted the 1974 Amendments, it included two

broad preemption clauses. 2 U.S.C. 453 provides:

The provisions of [the FECA], and of rules pre-

scribed under this Act, supersede and preempt any

provision of State law with respect to election to Fed-

eral office.

The House committee that drafted this clause explained its

intent in sweeping terms (H.R. Rep. 93-1239, 93d Cong., 2d

Sess. i0 (1974)):

It is the intent of the Committee to preempt all state

and local laws.

* * * It is the intent of the committee 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. * * * The committee also

feels that there can be no question with respect to

preemption of local laws. Since the committee has

provided that the Federal law supersede[s}] and

preempt[s] any law enacted by a State, the Federal law

5

will also supersede and preempt any law enacted by a

political subdivision of a State.

The 1974 Amendments placed the principal restrictions

on campaign contributions and expenditures in Title 18, the

Criminal Code. See 18 U.S.C. (Supp. IV 1974) 608 et seq.

The second preemption clause included in the 1974

Amendments was specifically applicable to these restric-

tions (Pub. L. No. 93-443, $ 104(a), 88 Stat. 1272 (codified

at 18 U.S.C. 591 note)):

The provisions of chapter 29 of title 18, United

States Code, relating to elections and political activi-

ties, supersede and preempt any provision of State law

with respect to election to Federal office.

The House committee explained this preemption provision

as follows (H.R. Rep. 93-1239, supra, at 10-11):

[This] preemption provision was added * * * to

make it clear that the Federal law is intended to be the

sole source of criminal sanctions for offenses involving

political activities in connection with Federal elections.

The committee wants to avoid even the possibility of

an argument that the preemption provision contained

in [2 U.S.C. 453] referring to “provisions of this

Act” [?] does not include the provisions of title 18

amended by * * * this legislation. This clarification is

most important because all of the actual limitations on

contributions and expenditures, together with the

sanctions for violation of such limitations, are included

?The report actually refers to “the preemption provision contained in

the 1971 Act referring to ‘provisions of this Act’* * *.” Both the context

and the fact that the quoted does not appear in the preemption

provision of the unamended 1971 Act (see 2 U.S.C. (Supp. 11 1972) 453,

quoted at page 15 note 7, infra), miake it apparent that the committee

was referring to its proposed amendment to the 1971 Act — the lan-

guage that subsequently was enacted as 2 U.S.C. 453.

6

in the criminal code provisions of title 18 amended by

this legislation.

The conference committee report on the 1974 Amend-

ments then explained the precise extent to which Congress

intended the statute it was amending to preempt state law

(H.R. Rep. 93-1438, 93d Cong., 2d Sess. 69 (1974) (empha-

sis added)):

The provisions of [the 1974 Amendments] 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 cam-

paigns, and similar offenses, but does not affect the

States’ rights to prohibit false registration, voting

fraud, theft of ballots, and similar offenses under State

law.[?]

b. The plain language and legislative history of the 1974

Amendments demonstrate that Mo. Ann. Stat. § 84.830,

insofar as it applies to federal election campaigns, is

preempted by federal law. Section 84.830 regulates the

contributions that may be made to federal campaigns; in the

words of the conference report, it “relat[es] to limitations

on * * * the sources of campaign funds used in Federal

races.” Congress not only legislated comprehensively in this

area; it explicitly stated its intention to occupy this field in

_ strong and unequivocal terms. Indeed, Congress enacted a

second, arguably redundant preemption clause for the

express purpose of precluding “even the possibility of an

'This passage from the conference report was addressed to the

preemption provision that Congress added for the purpose of establish-

ing that the limitations on contributions contained in the 1974 Amend-

ments occupied the field. The passage from the conference report

quoted by the court below (see Pet. App. A7) addressed the other

preemption clause and accordingly made no mention of limitations on

contributions or on the sources of funding.

7

argument” (H.R. Rep. 93-1239, supra, at 10-11) that state

law might supplement the limitations on contributions and

expenditures in connection with federal campaigns that

were included in the 1974 Amendments.

In addition, the Federal Election Commission, the expert

administrative body established by Congress to implement

the 1974 Amendments (see, e.g., 2 U.S.C. 437c(b), 437d(e),

437f; FEC v. Democratic Senatorial Campaign Commit-

tee, 454 U.S. 27, 37 (1981)) has issued a regulation providing

that “Federal law supersedes State law concerning the * * *

[l]imitation on contributions and expenditures regarding

Federal candidates and political committees.” 11 C.F.R.

108.7(b)(3). In response to the Solicitor General’s inquiry

concerning the FEC’s views on the preemption question in

this case, the FEC, on January 23, 1985, concluded by a

vote of 6-0 that the FECA preempts Mo. Ann. Stat.

$ 84.830 to the extent that that statute applies to contribu-

tions made to influence an election to federal office. In sum,

the plain language of the FECA, emphatic statements in the

legislative history, and the considered judgment of the

agency charged with enforcing the statute all support the

conclusion that Section 84.830 is preempted by federal law.

c. While certain arguments can be advanced in support

of the Missouri Supreme Court’s contrary conclusion, they

are not, in our view, sufficient.

i. First, petitioner was not subjected to a criminal sanc-

tion; the committee reports we quoted above stated that

“Federal law is intended to be the sole source of criminal

sanctions” (H.R. Rep. 93-1239, supra, at 10) and that “Fed-

eral law occupies the field with respect to criminal sanctions

relating to * * * the sources of campaign funds used in

Federal races” (H.R. Rep. 93-1438, supra, at 69). But the

language of the preemption provisions of the 1974 Amend-

ments is not limited to state criminal laws: both of those

provisions broadly “supersede and preempt any provision

8

of State law with respect to election to Federal office

(emphasis added). Moreover, the FECA provides for an

integrated scheme of civil and criminal enforcement (see 2

U.S.C. 437g) that Congress has described as “a delicate

balance designed to effectively prevent and redress viola-

tions”(H.R. Rep. 94-917, 94th Cong., 2d Sess. 4(1976)) and

has carefully adjusted from time to time. See Federal Elec-

tion Campaign Act Amendments of 1976, Pub. L. No.

94-283, $§ 107(b), 109, 90 Stat. 482-483; H.R. Rep. 94-917,

supra, at 3-4; S. Rep. 94-677, 94th Cong., 2d Sess. 7-8

(1976); H.R. Rep. 94-1057, 94th Cong., 2d Sess. 45-50

(1976). Congress conferred on the FEC the power to bring

civil actions to enforce the FECA (2 U.S.C. 437d(a)(6)) and

explicitly stated that “the power of the Commission to

initiate such civil actions * * * shall be the exclusive civil _

remedy for the enforcement of the provisions of this Act” (2

U.S.C. 437d(e)). In these circumstances, it is most unlikely

that Congress intended to preempt only state criminal laws

and to allow state regulation so long as the state imposed

noncriminal penalties.‘

”

ii. The Missouri Supreme Court suggested that Section

84.830 is not preempted by the FECA because its purpose is

to eradicate a different evil. The purpose of Section 84.830,

the court found, was to remedy a situation in which ostensi-

bly voluntary political contributions were in fact extorted

‘Similarly, it is immaterial that the limitations on contributions are

no longer contained in Title 18 of the United States Code but have been

transferred to Title 2 (see Pub. L. No. 94-283, $$ 112(2), 201(a), 90

Stat. 486, 496). The knowing and willful violation of these restrictions

remains a crime (see 2 U.S.C. 437g(d)), and we know of no suggestion in

the legislative history of the statute effecting the transfer that Congress

intended the transfer to undermine the preemptive effect of these provi-

sions. Indeed, the legislative history of this statute emphasizes the

carefully integrated and balanced nature of the enforcement scheme.

See, e.g., H.R. Rep. 94-917, supra, at 3-4. This is evidence that Con-

gress did not intend that scheme to be supplemented or disrupted by

state remedies. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218

(1947).

9

from police officers, and in which the police force was

subject to political influence because police officers were

chosen for their loyalty to the governing political machine.

See Pet. App. A3-A4, A28-A29; see also Br. in Opp. 2-4. By

contrast, Congress, in enacting the FECA and its amend-

ments, was concerned not with the possibility of extortion

or political influence among those who make political con-

tributions but with the “real or imagined coercive influence

of large financial contributions” on the recipients of contri-

butions. See Buckley, 424 U.S. at 25.

The reasoning of the Missouri Supreme Court that Sec-

tion 84.830 is not preempted because it is addressed to

concerns that are distinctively local and different from

those of the federal regulatory scheme might have some

force if petitioner’s contention were that the FECA implic-

itly preempted Section 84.830. Cf. San Diego Building

Trades Council v. Garmon, 359 U.S. 236, 241-244 (1959).

But in this case it is unnecessary to determine whether

preemption can be inferred from the nature and objectives

of the federal regulatory scheme; the FECA explicitly —

indeed, emphatically — preempts state regulation in the

area of limitations on contributions to federal campaigns.

See Aloha Airlines v. Director of Taxation, No. 82-585

(Nov. 1, 1983), slip op. 4-5 & n.5 (rules for discerning

congressional intent developed in cases involving the implicit

preemption of state statutes “have little application when a

court confronts a federal statute * * * that explicitly

preempts state laws”). The broad preemption clauses of the

1974 Amendments, and the language in the conference

report expressing an intent to “occup[y] the field with

respect to * * * the sources of campaign funds used in

Federal races” — especially when combined with the FEC’s

interpretation of the statute it is charged with administering

—- leave no room for the contention that the states may

10

legislate in this area in order to promote distinctively local

concerns not addressed by the federal legislation.°

In addition, the reasoning of the Missouri Supreme

Court appears to have no limiting principle. A state might

legitimately assert a special interest in preventing the

adverse effects and appearances potentially caused by the

political contributions not just of state and local govern-

ment employees but of other classes of citizens as well — for

example, registered lobbyists (see page 15 note 8, infra),

individuals employed in industries regulated by the state,

and professionals, such as lawyers, licensed by the state.

Under the reasoning of the Missouri Supreme Court, a state

would apparently be able to limit the political contributions

of each of these groups. The result would be that, insofar as

a substantial proportion of the citizens of such a state were

concerned, Congress’s deliberate decision to allow federal

campaign contributions of up to $1,000 would effectively be

nullified. For this reason, the conclusion that Section

84.830 is preempted is supported not just by the language

and legislative history of the FECA and the FEC’s interpre-

tation but by the need to maintain the integrity of the

congressional scheme.

iii. Finally, certain passages in another portion of the

legislative history of the Federal Election Campaign Act

Amendments of 1974 persuaded the Missouri Supreme

Court that Section 84.830 is not preempted. See Pet. App.

A7-A10. The Eighth Circuit, in considering a challenge to

Section 84.830 brought by another Kansas City police

5Moreover, nothing in the FECA prevents a state from directly

attacking the problems with which Section 84.830 is said to be con-

cerned. A state may of course directly outlaw extortion and prohibit the

use of political criteria in the selection of police officers. Section 84.830

is preempted solely because it addresses these problems by sweeping

means that infringe on an area — the regulation of contributions to

federal election campaigns — that Congress has explicitly occupied.

11

officer who was discharged for contributing to a federal

election campaign, was persuaded by the same passages.

See Reeder v. Kansas City Board of Police Commis-

sioners, 733 F.2d 543, 545-546 (1984) (reprinted at Br. in

Opp. Al-Al1).

At the same time that Congress amended the FECA in

1974, it also amended some of the provisions of the Hatch

Act. Before 1974, the Hatch Act, in addition to prohibiting

certain political activities by federal employees (see gen-

erally CSC v. National Association of Letter Carriers, 413 _

U.S. 548 (1973)), also prohibited certain state and local

employees whose principal employment was in programs

funded by the federal government from “tak[ing] an active

part in political management or in political campaigns.” 5

U.S.C. (1970 ed.) 1502(a)(3). In 1974, in the same statute in

which it amended the FECA, Congress amended this provi-

sion of the Hatch Act to specify that such state and local

employees were prohibited only from “be[ing] a candidate

for elective office.” Pub. L. No. 93-443, § 401(a), 88

Stat. 1290; see 5 U.S.C. 1502(a)(3). The House report on

this amendment explains it as follows (H.R. Rep. 93-1239,

supra, at 11):

The amendment[] * * * would remove from Federal

law the prohibition against voluntary partisan political

activity by State and local employees employed in

programs funded in whole or in part from Federal

loans or grants. Activities such as driving voters to the

polls or attending a political convention as a delegate

would no longer be prohibited by Federal law. The

regulation of political activities of State and local

employees would be left largely to the States. Federal

law would, however, continue to prohibit a State or

local officer or employee from using his official author-

ity or influence to interfere with or affect the result of

12

an election and prohibit him from coercing, command-

ing, or advising another State or local officer or

employee to pay, lend, or contribute anything of value

to any person for political purposes. Nothing in exist-

ing law or in the amendment made by this section

prevents a State or local officer or employee from

making a voluntary political contribution.

The conference report, on which the court below relied

(Pet. App. A9), contains the following explanation (H.R.

Rep. 93-1438, supra, at 102 (emphasis added)):

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.

When the conference report was submitted to the Senate,

Senators Stevens and Cannon engaged in the following

colloquy, which was quoted at length and heavily relied on

by the court below (see Pet. App. A8-A9; 120 Cong. Rec.

34386 (1974)):

Mr. STEVENS. Mr. President, just 1 minute. I

should like to clarify something, if I may, with the

manager of the bill.

A provision of this bill amends section 1502 of title 5

relating to the activity of State or local employees in

Federal campaigns. Specifically, it takes out subsec-

tion (a)(3), which prohibits a State or local officer or

employee from taking an active part in political man-

agement or political campaigns, and substitutes for

that a prohibition from being a candidate for Federal

office.

It is my understanding, and I should like to ask the

manager of the bill, my friend from Nevada (Mr.

CANNON), if he agrees that this means that State laws

13

which prohibit a State employee, or local laws which

prohibit a local employee, from engaging in Federal

campaign activities and Federal campaigns are still

valid?

* *+ * *© *

I think it is quite important, because many of our

States have the so-called little Hatch Act, and it was

not our intent to repeal those “little Hatch Acts,” or to

modify them, but to take it out of the Federal law so

that Federal law does not prohibit those activities,

leaving it up to the State to do so.

Mr. CANNON. The Senator is absolutely correct.

** *

* * * It was the intent of the conferees that any State

law regulating the political activity of State or local

officers or employees is not preempted [or] superseded.

We did want to make it clear that if a State has not

prohibited those kinds of activities, it would be per-

missible in Federal elections.

This would get away from the situation in which the

Federal Government gives the State funds toward

many different programs, and some of those em-

ployees have been fearful that they could not partici-

pate in Federal campaigns. This would eliminate that

problem.

Mr. STEVENS. It is up to the State to determine the

extent to which they may participate in the Federal

elections?

Mr. CANNON. The Senator is right. The States

make that determination.

All of this legislative history, however, was explicitly

intended by the committees and Senator Stevens to illumi-

nate the meaning of the 1974 Amendments to the Hatch

14

Act — not to narrow the preemption clauses of the amend-

ments to the FECA. The statement of the conference com-

mittee, Senator Stevens’s inquiry, and Senator Cannon’s

reference to “the situation in which the Federal Govern-

ment gives the State funds” were by their terms confined to

the Hatch Act amendments; they made no reference to any

other provision, and there is no evidence that either the

conference committee or Senators Stevens and Cannon

believed that they were explaining the meaning of the

preemption provisions of the quite distinct FECA amend-

ments that happened to be included in the same statute.

In addition, it seems clear that the political “activities” to

which Senator Stevens and the committee report referred

when they emphasized that states could continue to regulate

their employees’ political activities do not include voluntary

campaign contributions. Such contributions have never

been a subject regulated by the Hatch Act; the Hatch Act

has not been construed to prohibit the making of such

contributions. See Letter Carriers, 413 U.S. at 577 n.11; 5

C.F.R. 733.111(a)(8).° Indeed, the House committee report

that we quoted above stated that “[n]Jothing in existing law

or in the amendment [to the Eatch Act] made by this

_ section prevents a State or local officer or employee from

~ making a voluntary political contribution.” This statement

reveals that Congress did not consider the making of volun-

tary campaign contributions to be among the forms of

political activity regulated by the Hatch Act; rather, Con-

gress apparently viewed that as a subject regulated by the

FECA.’

In this case, the trial court stated that it had reviewed the “little

Hatch Acts” of all the states and that, apart from Section 84.830, only

the laws of Louisiana prohibit voluntary campaign contributions. Pet.

App. A33-A34.

’Prior to the 1974 Amendments, the preemption clause of the FECA

was as follows (2 U.S.C. (Supp. II 1972) 453):

15

2. While it seems reasonably clear that the Missouri

Supreme Court’s decision is in error, it is less clear whether

the decision warrants this Court’s review. We are aware of

no evidence suggesting that restrictions comparable to Sec-

tion 84.830 are common.? The trial court in this case stated

that it had “reviewed the little Hatch Acts of the fifty states”

(a) Nothing in this Act shall be deemed to invalidate or make

inapplicable any provision of any State law, except where com-

pliance with such provision of law would result in a violation of a

provision of this Act.

(b) Notwithstanding subsection (a) of this section, no provi-

sion of State Law shall be construed to prohibit any person from

taking any action authorized by this Act or from making any

expenditure * * * which he could lawfully make under this Act.

It might be argued that if Congress intended the 1974 Amendments to

preempt state statutes like Section 84.830, it would have continued in

effect the language of subsection (b) and expressly provided that no

state law shall prohibit any person from making any contribution he

could lawfully make under the FECA.

In view of the sweeping preemption clauses that Congress did enact in

1974, however, its failure to use language that would deal precisely with

measures like Section 84.830 is of little significance. The legislative

history of the preemption provisions of the 1974 Amendments pre-

cludes any suggestion that Congress meant to expand the permissible

scope of state regulation. Congress manifestly had precisely the oppo-

site intent. Congress evidently believed that the broad preemption

clauses of the 1974 Amendments would subsume the much narrower

preemption provision of the unamended 1971 Act. (We note in addition

that when Congress enacted 2 U.S.C. (Supp. II 1972) 453(b), it appar-

ently was concerned with expenditures by and on behalf of candidates,

not by individuals expressing their support for candidates. See 117

Cong. Rec. 43396-43397 (1971).)

*The FEC has been empowered to issue advisory opinions on the

request of office holders, candidates, and political committees since

1974 (see 2 U.S.C. (Supp. IV 1974) 437f) and, since 1980, in response

to any proper request (see 2 U.S.C. 437f). The FEC has issued only one

advisory opinion dealing with a question similar to that presented by

this case. See AO 1978-66 (expressing the view that the FECA preempts

a California statute that forbids candidates from accepting contribu-

tions from registered lobbyists).

16

(Pet. App. A33) and that except for tre Louisiana law (see

Bruno v. Garsaud, 594 F.2d 1062 (Sth Cir. 1969)), and

Section 84.830 (which applies only to the Kansas City

Police Department) none of these statutes prohibits volun-

tary campaign contributions. Furthermore, there is no con-

flict in the circuits on the question whether a state may

prohibit its employees, or a certain category of employees,

from making contributions to a federal election campaign.

On the other hand, this may be an area in which there is a

particular need for the Court to clarify the law at a relatively

early stage. Prohibitions on contributions to federal cam-

paigns by state or local employees — or by other individuals

or entities that the state may assert a special interest in

regulating (see page 10, supra) — might be found not only in

the state statutes reviewed by the trial court in this case but

in municipal ordinances and administrative directives. See,

e.g., Mancuso v. Taft, 476 F.2d 187, 189 n.1 (ist Cir. 1973);

Hobbs v. Thompson, 448 F.2d 456, 457 (Sth Cir. 1971). An

individual subject to such a prohibition would be faced with

sharply divergent assessments of its legality from authorita-

tive bodies — the Missouri Supreme Court and the Eighth

Circuit have held such a restriction lawful, but the FEC has

taken the position that such a prohibition is preempted by

the FECA. See also pages, 16-17 note 9, infra. Limitations

on campaign contributions implicate the First Amendment

right to freedom of speech (see Buckley, 424 U.S. at 12-38),

and in this sensitive area there is much to be said for not

leaving individuals in a state of such uncertainty.° It would

’Petitioner contends (Pet. 5-15) that Section 84.830, at least as ap-

plied to contributions to federal election campaigns, violates the First

Amendment and the Equal Protection Clause. (Both dissenting judges

below noted that the resolution of the First Amendment issue raised by

petitioner might differ depending on whether Section 84.830 was ap-

plied to federal elections or only to state and local elections. See Pet.

App. A20, A24.) Because, as we have explained, Congress has occupied

17

therefore not be inappropriate for the Court to grant review

in this case.!°

Respectfully submitted.

Rex E. LEE

Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

Davip A. STRAUSS

Assistant to the Solicitor General

JOHN CORDES

CARLENE V. MCINTYRE

Attorneys

May 1985

the field of regulating the perinissble sources of contributions to federal

campaigns and has not seen fit to enact a total prohibition on campaign

contributions comparable to Section 84.830, there is no need for the

Court to address these constitutional issues in this case.

While there is no clear conflict in the circuits on the First Amendment

issue raised by petitioners, dictum in the Fifth Circuit’s decisicn in

Bruno v. Garsaud, supra, is incoasistent with both the decision below

and the Eighth Circuit’s decision in Reeder v. Kansas City Board of

Police Commissioners, supra. In Bruno, the Fifth Circuit, in consider-

ing the provisions of Louisiana jaw that prohibit political contributions

by state employees, stated that it had “strong doubts that [that prohibi-

tion] could constitutionally be enforced to prohibit Louisiana classified

employees, at least when acting as private citizens without any fanfare

or publicity, from making contributions to a political candidate or

party. * * * Insofar as the statute does purport to proscribe altogether

this constitutionally protected conduct, it sweeps too broadly.” 594

F.2d at 1064. See also Wachsman v. City of Dallas, 704 F.2d 160, 174

(Sth Cir.), cert. denied, 464 U.S. 1012 (1983).

10We note that an appeal of the judgment of the Missouri Supreme

Court apparently would have been within this Court’s mandatory juris-

diction. 28 U.S.C. 1257(2).