Untitled Texas Attorney General Opinion

TEE ATTORNEY GENERAL
OF’ TEXAS

AUHTIN. TXXAS 787lg

March 15, 1974

The Honorable Mark W. White, Jr. Opinion No. H- 259
Secretary of State
State of Texas Re: Responsibilities of
Austin, Texas 78711 candidates for
federa 1 office under
the Campaign Report-
ing and Disclosure
Dear Mr. White: Act of 1973

The Campaign Reporting and Disclosure Act of 1973 (Acts 1973,
ch. 423, p. 1101, generally found in Chapter 14, Texas Election Code),
regulates campaign contributions and expenditures. Among the persons
covered by the Act are candidates for certain federal offices. These
candidates also must conform to the requirements of the Federal Elec-
tion Campaign Act of 1971 (P. L. 92-225, 86 Stat. 3). See also 11 C. F. R.
5 1. 1 et seq. A candidate’s concurrent responsibility under the state and
federal laws is defined in $403 (2 U.S. C. $453) of the federal act. That
section provides:

“Sec. 403. (a) Nothing in this Act shall be
deemed to invalidate or make inapplicable any pro-
vision of any State law, except where compliance
with such provision of law would result in a violation
of a provision of this Act.

“(b) Notwithstanding subsection (a), no provision
of State law shall be construed to prohibit any person
from taking any action authorized by this Act or from
makingany expenditure (as such term is defined in
section’301(f) of this Act) which he could lawfully make
under this Act. ”

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The Honorable Mark W. White, Jr., page 2 (H-259)

In addition, 5 308(b)[2U. S. C. § 438(b)] and § 309 [2U. S. C. § 4391 of the
federal act contemplate cooperation between state and federal officials
in administering the system of reports on campaign contributions and
expenditures.

In light of these provisions of the federal act you ask our opinim as to
‘bhat portions of [the state act] are applicable to federal candidates and
what portions of [the state act] have been preempted by the Federal
Election Campaigns Act. ”

Section 403 was offered as an amendment by Representative Udall
during consideration of the bill by the House of Representatives acting
as the committee of the whole. In explaining the amendment to the House,
he said:

“MR. UDALL, Mr. Chairman, I have offered
this amendment at the request of several of my col-
leagues. It deals with the conflict between the new
Federal law we are going to have and the 50 State laws.
Some of the State laws are very ancient and have un-
realistic and unworkable spending limitations and all
the rest.

“This amendment comes in two parts.

“The first deals with the dilemma one might
have, where, by complying with the reporting pro-
vision in the Federal law one would violate the State
law, or, by complying with the State law, would violate
the Federal law.

“[Paragraph (a)] simply says that one does not
violate a State law when one complies with this Federal
law.

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:

The Honorable Mark W. White, Jr. page 3 (H-259)

“The second half of the amendment (Paragraph
b) deals in a more affirmative fashion with this conflict
of State and Federal law problem.

11

“Let me give you an example. One member
here tells me in his State there is a very rigid
provision which limits him to about $5, 000. The
new Act will have a $50, 000 limitation in it. All
this amendment says is you can spend up to the
amount authorized by the Federal Act without
regard to a lot of old, obsolete State Acts. I do
not know of any controversy. ” 117 Gong. Rec. 4339b
(1971).

When the conference report was before the House, Representative
Hays, the House sponsor of the legislation, was questioned on the effect
of $403. The colloquy was:

“MR. BINGHAM. . I would like to
ask the chairman of the Committee on House
Administration a question about the interpretation
of section 403 which deals with the effect of this
legislation on State laws. As I understand it,
section 403 (b) would vitiate any State laws which
impose either spending ceilings or lower ceilings
on the amount that a candidate or his family might
spend foi.a campaign. Is that correct?

“MR. HAYES. My opinion is that the gen-
tleman is correct in his interpretation. Subsection
(b) of section 403 refers to a whole list of purposes
in section 301 (f) for which expenditures may be
lawfully made. Obviously, contradictory State
laws are superseded. Similarly limitations on
contributions lower than those in this bill forcibly

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The Honorable Mark W. White, Jr. page 4 (H-259)

vitiate the intent of this bill and therefore, in my
opinion, they are not valid. ” 118 Cong. Rec.
H85 (daily ed. Jan. 19, 1972).

We believe that the two paragraphs of $403 must be construed
together. Although paragraph (b) expressly controls over paragraph
(a), we do not think paragraph (a) is rendered meaningless. Therefore,
it is our opinion that the reference in paragraph (b) to “action authorized
by this Act” refers to actions authorized expressly and affirmatively.
The failure to prohibit an act is not an “authorization” of it. For
example, even though the federal act does not require reports of
contributions not exceeding one hundred dollars, we do not believe a
candidate can successfully claim that the federal act expressly authorizes,
under $ 403 (b) a failure to report contributions of one hundred dollars
or less if a state law requires such a report. Thus, the more stringent
reporting requirement of section 9 [Vernon’s Texas Election Code,
Article 14. 08(c)] of the state act would apply to federal candidates.
On the other hand, as stated to the House by the author of 5 403 and by
the sponsor of the bill, provisions of the federal act permitting expenditures
of a certain kind or amount would supersede contrary state requirements.

Section 403 is directed to actions authorized to be taken by “any
person”, and is not limited to candidates.

The state law is generally applicable to those federal candidates,
contributors and committees covered by it, except where there is a
specific conflict with the federal law. The only potential conflict we
have found is between $ 8 [Vernon’s Texas Election Code, Article 14. 071
of the state act and section 205 [18 U.. S. C. $ 6101 of the federal act.

Section 8 of the state act provides in part:

“(a) Except to the extent permitted in [Vernon’s
Texas Election Code, Article 15.171 no corporation
shall give, lend or pay any money or other thing of
value, or promise to give, lend or pay any money

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TIE Honorable Mark W. White, Jr. , page 5 (H-259)

or other thing of value, directly or indirectly, to
any candidate, political committee, campaign mana-
ger, assistant campaign manager, or any other
person, for the purpose of aiding or defeating the
nomination or election of any candidate or of aiding
or defeating the approval of any political measure
submitted to a vote of the people of this state or
any subdivision thereof; .”

Section 205 of the federal act provides:

“Sec. 205. Section 610 of title 18, United States
Code, relating to contributions or expenditures by
national banks, corporations, or labor organizations.,
is amended by adding at the end thereof the following
paragraph:

“As used in this section, the phrase
‘contribution or expenditure’ ~shall include any
direct or indirect payment, distribution, loan,
advance, deposit, or gift of monqor any services,
or anything of value (except a loan of money by
a national or State hank made in accordance with
the applicable banking laws and regulations and
in the ordinary course of business) to any candidate,
campaign committee, or political party or organiza-
tion, in connection with any election to any of the
offices referred to in this section; but shall not
include communications by a corporation to its
stockholders and their families or by a labor
organization to its members and their families
on any subject; nonpartisan registration and get.-
out-the-vote campaigns by a corporation aimed
at its stockholders and their families, or by a
labor organization aimed at its members and their
families; the establishment, administration, and
solicitation of contributions to a separate segregated

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The Honorable Mark W. White, Jr. page 6 (H-259)

fund to be utilized for political purposes by a corp-
oration or labor organization: Provided, that it
shall be unlawful for such a fund to make a contribution
or expenditure by utilizing money or anything of value
secured by physical force, job discrimination, financial
reprisals, or the threat of force, job discrimination,
or financial reprisal; or by dues, fees, or other monies
required as a condition of membership in a labor
organization or as a condition of employment, or
by moneys obtained in any commercial transaction. ‘I

We know of no judicial construction of the state’s prohibition of
direct or indirect contributions by a corporation. You have not asked
us to construe this provision, and it is not necessary for us to do so.
However, if the state act is interpreted to prohibit the types of activity
permitted by section 205 of the federal act, the federal act would
prevail in regard to candidates for federal office.

SUMMARY

Candidates for those federal offices included in the
coverage of the Campaign Reporting and Disclosure
Act of 1973.(Acts 1973 63 Leg. ch. 423, p. llOl),
committees working on behalf of those candidates
and contributors to those candidates or committees
must comply with the provisions of state election
laws except where federal laws are in conflict as
definedat:2U. S. C. $ 453.

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, .I
The Honorable Mark W. White, Jr., page f (H-259)

If the state prohibition on direct or indirect
corporate contributions is construed to prohibit
contributions to federal candidates from the type
of fund contemplated by 18 U. S. C. $ 610, the
federal law wilp prevail.

Yours very truly,
A

JOHN L. HILL
Attorney General of Texas

DAVID M. KENDALL, Chairman
Opinion Committee

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