Untitled Texas Attorney General Opinion

April 21, 1975

The Honorable Mark White, Jr. Opinion No. H- 588
Secretary of State
State Capitols Building Re: Effect of Federal Election
Austin, Texas Campaign Amendments of
1974 on state campaign
reporting and disltlosure
requirements for federal
Dear Secretary White: candidates.

You have asked our.opinioa on several questions relating to the Federal
Election Campaign Act Amendments of 1974. See Attorney General Opinion
H-433 (1974). Your questions concern the cont=ed vitality of the remainder
of chapter ,I4 insofar as it purports to cover federal candidates. Your first
question asks:

Does the Federal Election Campaign Act of 1971,
as amended by the Federal Campaign Act Amendments
of 1974, preempt or supersede provisions of Chapter 14,
Vernon’s Texas Election Code, and, if so, which pro-
visions therein are so preempted or superseded? As
of what dates are such various provisions of Chapter 14
superseded or preempted?

Section 301 of the 1974 Federal Act amended section 403 of the 1971
Act so that it now reads:

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.

The purpose of this clause was explored in Attorney General Opinion H-433
(1974). It was apparently the intent of the House Committee on Administration
to preempt -all state and local reporting and disclosure laws insofar as they
affected federal candidates. H. R. Rep. No. 93-1239. 93rd Gang., 2d Sess.,
p. 10 (1974). The 1974 Act was the mechanism chosen by Congress to reduce
the burden on candidates for federal office from a maximum of 5i different
laws with which to comply to one law, i.e., federal law. 120 Cong. Rec.
H7896 (daily ed. August 8, 1974).
p. 2624
The Honorable Mark White, Jr., page 2 (H-588)

In light of the rather explicit language of section 301 of the 1974 Act
and the expressions of congressional intent, it is our opinion that effective
on October 15, 1974, the Federal Election Campaign Act of 1971, as amended
by the Federal Campaign Act Amendments of 1974, preempted and superseded
all provisions of Chapter 14 of the Texas Election Code with respect to elec-
tion to Federal Office.

Your second question asks:

Are all reporting requirements of Chapter 14,
Vernon’s Texas Election Code, relating to elections
(as defined in Chapter 14, Vernon’s Texas Election
Code) which occurred prior to the effective date of
the superseding or preempting provision of the
Amendments still in effect for federal candidates?
More particularly, is a federal candidate still
required to file a sworn statement by January 15,
1975, pursuant to Article l4.‘08(h)(S)(ii) Vernon’s
Texas Election Code, which statement relates
exclusively to the May 4, 1974, general-primary
election?

Given the explicit language of preemption contained in secticn 301 of .the
1974 Act, we must conclude ‘that a federal candidate is no longer required to
file a sworn statement of contributions and expenditures by January 15
following the deadline for filing the first supplemental statement of contributiona
and expenditures, pursuant to articles 14.08 (h)(S)(ii) of the Election Code. Of,’
course, federal law requires candidates for federal office to file similar
reports, copies of which mm t be filed.with the Secretary of State of Texas.
2 U.S.C. 8 $ 304, 317. as amended by the 1974 Act.

Your third and sixth questions touch upon common ground. In essence,
they ask

Do the-Amendments supersede or preempt the
requirements of Chapter 14, Vernon’s Texas Elec-
tion Code, applicable to political committees (in-state
and out-of-state) which make expenditures on behalf
of or make contributions to candidates for federal
office?

p. 2625
The Honorable Mark White, Jr., page 3 (H- 588)

Effective October 15, 1974, the reporting requirements of artikle 14.08(g)
of the Election Code were rendered inapplicable to candidates seeking elec-
tion to federal office by section 301 of the 1974 Act. The activities of poli-
tical committees on behalf of federal candidates are now regulated by
sections 302, 303, 304 and 317 of the 1971 Act as amended by the 1974 Act.
Of course,’ committees acting on behalf of state candidates must continue to
comply with the state reporting requirements.

Your fourth question’asks:

Must a printer, publisher or broadcaster comply
with the requirements of Article 14.10, Vernon’s Texas
Election Code, upon acceptance of political advertising
for printing. publication, or broadcasting from a ‘can-
didate for federal office?

Sect+ 301 of the 1974 Act, which amends section 403 of the 1971 Act.
provides for preemption of “any provision of State law with respect to
election to Federal office. ” (Emphasis added). The plain meaning of the
emphasized language cannot be restricted to state law directly affecting
the candidate and supporting campaign perso&, rathey, it appears to cover
every facet of the elective process.

As to the contention that the state and federal law can co-exist in the
sphere of media responsibilities, it has long been held that “supersede”
means to ‘!set aside, ‘I “annul, ” “make void, useless or unnecessary by
superior power. . . . I’ Willbanks v. Montgomery, 189 S. W:2d 337, 339
(Tex. Civ. App. --Ft. Worth 1945, ref’d., w.0.m.). Also see City of Los
Angeles v. Gurdane, 59 F. 2d 161(9th Cir,,1932). In the latter case an
argument was made that merely because’s law was superseded. it did not
necessarily follow that it was “obliterated. ” The court, however, concluded
that “unfortunately for the appellees’ argument . . . that is precisely what
‘superseded’ does mean.” 59 F. 2d at 163.

It is our opinion that printers, publishers and broadcasters need no longer
comply with the requirements of article 14.10, Election Code, insofar as it
relates to candidates for federal office. We therefore answer your fourth
question in the negative.

Your fifth question asks:

p. 2626
The Honorable Mark White, Jr., page 4 (H-588)

Do the Amendments preempt or supersede the
iziiril and criminal liabilities of federal candidates,
corporations or other persons who have violated any
provisions of state elections laws prior to the effective
date of the Amendments?

Section 406 of the 1971 Act, as amended, states in subsection (b)(2):

(b) Notwithstanding any other provision of law

. . .

(2) no crim+al proceeding shall be institnted’against
any person for any act or omission which was a violation’
of any provision of title III of this Act, ‘or section608; 610,
611, or 613 of title 18. United States Code, as in effect
on December 31, 1974, if~such act or omission does not
constitute a violation of any such provision,’ as amended
by the Federal Election Campaign A&t Amendments of
1974. (Emphasis added).

This section bars the initiation of proceedings against any.persdn for’dolations
of various provisions of the 1971 Act if the actions which constituted the vio-
lations are not violations of any provisions of the 1974 Act. It refers only to
title III of the 1971 Act and four sections of’title 18 of the United States Code.
It does not by its terms include offenses committed under the laws of any
State. While it could be argued that section 406 would apply to actions which
were violations of both state and federal law, we believe that no such construc-
tion was intended. Had Congress intended to bar state prosecution of offenses
committed prior to’October 15. 1974, it would have so indicated. The specific
preemption of state law contained in sections 104 and 301 of the 1974 Act compels
the conclusion that in those instances in which Congress intended to supersede
state law, they did so in clear, unambiguous language. Section 406 also
provides that “(n)othing in this subsection shall affect any proceeding pending
in any court of the United States on the effective date of this section” (emphasis
added). From that language we may properly infer that in section 406
Congress intended to affect only proceedings instituted in federal court based
on the former federal law.

We therefore answer your fifth question in the negative.

p. 2627
The Honorable Mark White. Jr., page 5 (H- 588)

SUMMARY

The Federal Election Campaign Act of 1971, as
amended by the Federal Campaign’Act Amendments of
1974, preempts and supersedes all provisions of chapter
14, Texas Election Code, insofar as they relate to candidates
for federal office.

Printers, publishers and broadcasters .need no longer
comply with the requirelnents of article 14.10 as they relate
to candidates .for federal office.

Prosecutions for violations of state election laws which
occurred prior to October 15, 1974, are not barred by the
1974 amendments to the Federal Election Campaign Act of
1971.

Very truly yours,

Attorney General of Texas

APPROVER

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH. Chyirman
Opinion Committee

p. 2628