Teper v. Miller

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, 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officers and employees is not preempted or superseded by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 was Chairman of the Committee of

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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.]
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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).
 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 5B(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

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(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 (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 (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.

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