Teper v. Miller

CARNES, Before KRAVITCH and Circuit HILL, Judges, and Judge. Senior Circuit KRAVITCH, Judge: Circuit Officials of the State of appeal the grant preliminary injunction against en- forcement of prohibit O.C.G.A. 21-5-35 to Assembly a member of the General accepting campaign contributions for a Assembly office while the General (Judge dissenting) session. The court Hill preempt- pre- Teper 21-5-35 is grant court’s contends affirms the district laws, campaign finance liminary injunction, concluding that the Geor- ed timing prohibition no place gia the Federal particular, campaign contributions. Campaign Act. Election (“FECA”), Campaign Act Federal Election seq., 431 et includes I. provisions provision, “[t]he which states Doug is a member of the Teper prescribed under this of this and of rules Assembly contemplating who is General Act, supersede preempt any provision of office; co-plain- Teper’s for federal law with to Federal election State potential to his federal tiffs are contributors § 2 453. office.” U.S.C. campaign. As a member of the General 2,1996, Teper a motion in Assembly, by provision January filed Teper precluded a On requesting in- preliminary district court a of the Ethics Government 21-6-35, junction prohibiting Georgia § state officials accepting from cam- O.C.G.A. State”) (“the as any legislative enforcing from 21-5-35 paign contributions applies to office. The most recent of the Gen- candidates federal session. The session 8,1996, court, Teper concluding that Assembly began January district after eral statute, challenge through beginning Teper standing had to the state April.1 ran the of accept- Teper had that from determined that a substantial like- asserts had he been barred his claim ing for his lihood of success on merits of contributions session, preempted by that 21-5-35 was FECA and until the end of the he would have seriously disadvantaged regulations promulgated to oth- the Federal been relative (“FEC”) who offi- Election Commission under er federal candidates are not state Indeed, pre- might Consequently, faced with Act.2 the district court cials. he have been liminarily enjoined resigning state office or enforcement of 21-5-35 dilemma of foregoing campaign. as it relates to federal elections.3 his federal law, Assembly presenting applied” challenges ended after oral "as to state 1.The General session statute, argument opinion but in this case before this had because construction of the an "[t]he Assembly Adjournment of the issued. General understanding operation, possible of its con moot, session did not render case however. application, on its will have the stitutional limits Supreme recognized Court has that often in simplifying challenges, effect of future thus in governing challenging cases rules elections there creasing timely that cases can the likelihood filed filing is not complaint time between the of the sufficient adjudicated an held.” be before election is Storer judicial election to and the obtain res 724, Brown, 737-38, 1274, U.S. 94 S.Ct. v. 415 controversy of the election. olution before 8, (1974). n. 714 Given 1282-83 39 L.Ed.2d that Consequently, has the Court allowed such chal expedited appeal our decision in this come proceed repeti lenges "capable under session, legislative too late the current be yet evading exception tion review” moot Teper certainly cause could desire himself Reed, ness See Norman 502 U.S. doctrine. v. accept campaign session, during a future 279, 698, 704-05, 286-89, 112 S.Ct. 116 L.Ed.2d importance of this view (1992); Bellotti, Bank v. 711 First Nat'l Boston possible bearing similarly issue and its on other 1414-15, 765, 772-76, 1407, U.S. 98 officeholders, situated elected this case is (1978); Ogiivie, L.Ed.2d Moore 394 U.S. just Assembly not mooted because the General 1493, 89 S.Ct. 23 L.Ed.2d 1 recently adjourned. (1969); see also American Civil Liberties Union v. (11th Bar, Florida F.2d Cir. claim, winning preemption 2. In addition to the 1993). Teper argued district that to the court enforce- exception applies This under two conditions: §of ment 21-5-35 the First Amendment violated "(1) challenged action duration too was in its Equal The district Protection Clause. prior fully litigated short to be to its cessation or claims, they these court did not reach (2) expec- expiration, and there was a reasonable appeal. not before this court complaining party that would tation the same be subject again.” to the same action "Weinsteinv. grant preliminary a In order to warrant 347, 349, Bradford, 423 U.S. proving injunction, plaintiff has curiam); the burden (1975) a (per see 46 L.Ed.2d 350 also (1) Foxman, of suc- four factors: substantial likelihood Corp. v. News-Journal merits; (2) (11th Cir.1991). threat Application "capa- cess on the substantial irreparable injury injunction were repetition yet exception if the avoiding ble of review” (3) Teper’s injury particularly appropriate granted; to the like threatened in cases 72, 79,110 2270, 2275, 110 II. U.S. (2) (1990); “field,” reg which Congress appeal is The sole issue on whether pervasively, ulates a so field law a substantial of success

Teper has likelihood implicating touches on a field such a domi merits of his claim O.C.G.A. on the interest, nant federal an intent for feder preempted by FECA and FEC 21-5-85 law to occupy exclusively may al the field court, in granting The district regulations. inferred; “conflict,” where state and fed preliminary injunction, Teper concluded conflict, actually impossi eral so that it is applied to feder that O.C.G.A. party simultaneously for a comply ble candidates, scope al falls within both, or state law “stands as an obstacle preemption provision. We FECA’s review accomplishment and execution of full grant the ultimate decision of whether objectives purposes Congress,” Hines injunction preliminary for abuse of discre Davidowitz, 52, 67, tion, we review duenovo determinations of but (1941). English, L.Ed. 581 court en law made the district route. 78-80, 110 at at Preemption Ctr., Baker, Refugee Haitian Inc. v. F.2d any type “fundamentally question is a denied, Cir.), cert. congressional intent.” Id. 1245, 117 1122, 112 S.Ct. L.Ed.2d 477 of a application The and feder preemptive order to decide the law, subject raises an al statute issue of § of effect FECA on O.C.G.A. we See, plenary e.g., review. United States v. laws, juxtapose must the state and federal (11th McLeod, Cir.1995). 322, 53 F.3d 324 respective scopes, demarcate their and evalu Preemption doctrine rooted they ate extent to which tension. grows Supremacy Clause and from the 21-5-35(a) provides, O.C.G.A. “No mem- premise that when or in state law conflicts of Assembly ber the General or that mem- law, with give terferes state law must campaign public ber’s committee or a officer See, way. e.g., Inc. v. Transp., CSX Easter campaign of elected statewide or committee wood, 658, 662-64, 1732, U.S. 507 public accept, officer shall a contribution (1993); 1737, Cipollone 123 L.Ed.2d 387 v. during legislative a session.” A “contribu- Inc., 504, 515-16,112 Liggett Group, 505 U.S. gift, subscrip- tion” defined to include “a 2608, (1992). 2617, 407 S.Ct. 120 L.Ed.2d tion, loan, debt, membership, forgiveness of that Federalism concerns counsel state law money deposit anything advance or of of not be should found unless that is conveyed pur- value or transferred for the of purpose “the clear manifest Con of pose influencing the nomination for elec- gress.” Corp., Rice Santa Fe Elevator 331 any person tion or election of for office.” 218, 230, 1146, 1152, 67 91 U.S. L.Ed. “Office” is understood include federal of- (1947). 1447 “Clear and manifest” does not fices. however, necessarily “express,” mean can Congress’s implied intent to be Attorney The of General has de- a purpose from the structure and scribed the of the statute as follows: unambiguously if it is not stated in even It Assembly is clear General in- Co., Packing text. v. Rath 430 Jones prevent tended O.C.G.A. 21-5-35 even 519, 523-25, 1309, 1305, 51 L.Ed.2d appearance impropriety by its mem- (1977). 604 bers or accepting certain state officers in Supreme period legis- The Court identified where (1) categories preemption: pending three “ex lation is there could be perception legislative press,” Congress explicitly any “define[s] where that action could pre-empt by giving the extent to which its enactments be influenced law,” Co., English strong by state Elec. contribution. This statement General Cir.1994). outweighs injunction plaintiff the harm an district court second, defendant; granting Teper that found that established cause had third, injunction public proceed- would not disserve the interest. fourth of these factors before See, Huntsville, ing e.g., City Church v. to focus on the first. clause, savings Assembly prior provision with included is consistent the General laws, except public expressly preserving not be influ desire that officials enced, performance their duties compliance in the law would result where with state improper “political prohibit contributions.” in a violation of FECA or would (bribery prohibited); permitted by O.C.G.A. 16-10-2 Federal conduct FECA. See [384 Agan, also State v. 269 Ga. Campaign see Pub.L. No. Election Act of denied, (1989), (86 Stat.) 92-225, 863] S.E.2d cert. U.S.C.C.A.N. (amended 765] [110 Act Campaign Federal Election (1990). Pub.L. No. Amendments 1469). (88 Stat.) U.S.C.C.A.N. similarly Att’y The State Op. Gen. U95-27. the current House Committee that drafted “regulat[ing] the ac- describes 21-5-35 as provision intended “to make certain that preserve of state officials in order tions occupy field law is construed to politi- Federal public’s integrity faith in the respect to Federal office with elections system.” Appellants Br. at 10. No cal the Federal will be the sole disputes have one 21-5-35 would authority under which such elections will precluding effect of members of General Assembly Cong., accepting regulated.” H.R.Rep. contributions for No. 93d (1974). Assembly campaigns is in while the 2d Sess. 10 session. Congress “When ... has included anyone dispute Nor does the well estab legislation provision explicitly the enacted power of lished “constitutional addressing [preemption], and when that Buckley regulate federal v. Va elections.” provides provision a ‘reliable indicium leo, congressional intent to state L.Ed.2d 659 The Federal Election authority, congres there is no need to infer (as amended), 2 Campaign Act of 1971 U.S.C. pre-empt sional intent to state laws seq., § an intricate federal 431 et creates provisions’ legisla the substantive statutory campaign contri governing scheme 517, Cipollone, 112 tion.” 505 U.S. at S.Ct. expenditures and related to federal butions (citations omitted). express at 2618 provisions detail elections.4 Various FECA language broadly pre the worded FECA committees, political impose the structure of by legis emption provision, illuminated the requirements, design reporting empower and history, sufficiently clear to lative FEC, place limitations on the amounts of the § could preempt O.C.G.A. expenditures campaign by contributions readily be understood as a “state law with corporations, individuals and and restrict the Like respect to election to Federal office.” funds. use of such wise, this court that FECA could determine to FECA was amended in 1974 include a “occupied regulation the of fed field” provision, preemption which states that eral elections that the provisions and of “[t]he of this rules impermissibly strayed field.5 into this Act, supersede prescribed under any provisions purpose law I have of state no doubt is, Attorney respect to election Federal office.” 2 of the state law General to assert, replaced prevent appearance 453 to U.S.C. 453. The current and State 612, Otherwise, I, constitutionally. Buckley, 424 7. U.S. 96 Su note 4. infra upheld preme Court FECA’s contribution limita Buckley's consequence effect on FECA is of no tions, require record-keeping and disclosure present case. for the ments, provisions public financing for conventions; however, Presidential elections and case, express preemption In this via the FECA expenditure the Court also held that certain limi preemption preemption clause are no and field under the in violation of tations Act were practice. preemption different The FECA Amendment that the exercise of First istrative and enforcement admin occupies "with means that FECA the field clause delegated powers to 2 to election to federal office." way the FEC was unconstitutional because of only reach issue is the effective appointed. real the Committee members were phrase. the FEC was amended 1976 to reconstitute of this powers allow to exercise under the its full Act

995 (6th Cir.1994) precise Kentucky, impropriety bribery, to be F.3d —that — legislators accept cam (holding arise when state that preempts pur state law period paign during of time regulate porting poll contributions conducted U.S. they legislating. actually To be when Congressman’s election federal committee to sure, in Government Act Ethics advertising test the effectiveness of conduct example self-regulation by is an admirable during campaign); ed a federal Weber v. legislators, and it spe incumbent state is not (8th Cir.1993) Heaney, 995 F.2d cifically directed federal toward elections. (concluding that, every plausible “under Nonetheless, it is of the state law 453,” reading §of establishing sys effect state determining preemption, matters in not public funding Congressional tem purpose. Supremacy or its intent Under squarely candidates “falls within the bound Clause, substantially state law in effect domain”). aries And cases regulation, or impedes frustrates federal in which not invariably was found law, trespasses on a occupied field federal tangential involve state laws that are more yield, no must matter admirable or unre how regulation of federal elections. See Karl purpose law. lated the of that See Gade v. Thornburgh, Rove & Co. v. 39 F.3d 1273 Ass’n, Management Solid National Wastes Cir.1994) (federal personal, candidate’s con liability tractual for costs of direct mail fund- (“In assessing impact L.Ed.2d 73 raising services his scheme, state law on the we have Co., preempted); Stern v. Elec. General rely legislature’s solely refused to on the (2d (state Cir.1991) F.2d 472 law claims of professed looked as well have corporate corporation’s waste based con law.”); Casey, effects of the Felder v. political campaigns tributions to federal preempted); City Reeder v. Kansas Bd. of (1988) (“‘[T]he impor relative Comm’rs, (8th Cir.1984) Police tance the State of own law is not (ban by city police material when there is a conflict with a valid department employees not preempted). I law,’ law, ‘any however hesitate, however, summarily to conclude clearly acknowledged power, within a State’s preemptive scope 453 is so contrary which interferes with or is feder unambiguous as to a “clear evince and mani ”) law, Bland, yield.’ (quoting al must Free v. Rice, Congress,” fest 331 U.S. at 663, 666, 1089, 1092, 369 U.S. 8 encompass 67 S.Ct. at to state laws (1962)); Napier L.Ed.2d 180 v. Atlantic further, §as 21-5-35. Because and Co., 605, 612, Coast Line R.R. definitive, Congress’s more evidence intent (1926) (pre 71 L.Ed. 432 provided by the FEC’s depends emption not on whether federal and incorporates by § FECA —and because state laws “are aimed and at distinct differ prescribed reference under” “rules FECA —I they “operate upon evils” but ent whether appropriate agency’s think to take the view object”). same finally resolving into account before the is case, § this In the effect of O.C.GA. 21-5- sue. place Teper’s 35 is to limitation fund- The 1974 to amendments FECA created raising for his federal It campaign. would be primary in it therefore, the FEC and and conclude, “vest[ed] possible to that the state responsibility for administering substantial operates to respect “with election to Fed- Act,” office,” enforcing delegating and to the eral and within thus falls FECA’s agency rulemaking adjudica preemption “extensive and express provision, U.S.C. powers.” Buckley, § at 453.6 Other found tive express courts have 677-78; preemption FECA laws that at also FEC v. Democratic of state are no S.Ct. see more, Comm., more, Campaign or not much intrusive of federal Senatorial (1981).7 37-38, 102 38, 45, regulation. Bunning Commonwealth L.Ed.2d 23 Indeed, Judge response Buckley, this is Carnes’s conclusion. In the 1976 amendments to FECA the FEC to allow the reconstituted agency delegated constitutionally to exercise its donations, not at through campaign legislator rules and prescribe is authorized The FEC casting registering to vote level of provisions of carry out the regulations to (which regulate). free to the state is 438(a)(8), upon ballots FEC, give, district Thus, agree with the I am inclined concerning ap- advisory opinions request, regulation 437d(a)(7), gloss this FEC FECA, §§ court 2 U.S.C. plication of provision authority, places on the FECA Exercising delegated 437f. inferring Con- basis could be a sufficient regulations and promulgated the FEC has Georgia law.8 intent to gress’s inter- advisory opinions a number of issued to determine applying FECA preting ambiguity to the FEC’s Any residual on state law. With preemptive effect understanding preemptive effect imposed regulation type conclusively Georgia statute is on the FECA interpreta- the FEC’s O.C.G.A. advisory opinions.. resolved FEC unambiguous: such state tion of FECA is opinion expressed the consistently has FEC preempted. laws limiting statutes preempts state that FECA federal candi- frame which the time regulation specifies A 1977 FEC campaign contributions. may accept dates law concern- supersedes state “Federal law (advising that FECA Op. FEC 1994-2 contributions and ex- See ing ... [l]imitation statute, barring lobby- preempts Minnesota candidates penditures regarding Federal during a contributing a candidate C.F.R. ists from committees.” Op. legislature); 108.7(b)(3). regular of the state regulation, session Interpreting this that, (advising preempts that FECA FEC 1993-25 plausibly determined court the district restricting peri- time regulation, a Wisconsin according terms of the to the lobbyists can contribute to during which od preempted, 21-5-35 would O.C.G.A. candidates); (advising that Op. FEC potential candidate on when a restriction “[a] Washington statute bar- preempts a simply another may accept contributions accepting campaign ring state officials regulation also enu- type of limitation.” sessions). during legislative following areas merates the “(1) fact, wrote to the FEC quali- Teper himself preempted: [m]anner law is advisory opin- requesting an political party organi- November fying or as a candidate (3) § 21- election; constitutionality of O.C.G.A (2) zation; ion on places [d]ates (4) December reply In a letter dated false 5-35. [prohibition of registration; [v]oter ballots, fraud, Associate General Counsel voting theft of registration, [cjandidate’s advisory opinion offenses; that a formal per- FEC wrote and similar regulations unnecessary because FEC 11 C.F.R. was sonal financial disclosure.” clear advisory opinions made 108.7(e). empha- previous Although, as the State preempted. Georgia law was Subse- legislate sizes, allows states to regulation in court’s decision voting quently, after the district registration, “[p]rohibition[s] of false in case, 21-5-35 offenses,” did address fraud, ballots, the FEC and similar theft of reiterating advisory opinion,9 voting fraud. The a formal not 21-5-35 is about was statute against fraud at the operates adviso- Op. FEC 1995-48. The bribery FECA See in of a state governance, of as level regulation proposed disapproves the S.Rep. powers No. neither under the Act. See duties and 677, (1976), reprinted may thirty days, issue it. Cong., 2d Sess. the FEC 94th within 438(d). was Congress 929-32. The FEC in 1976 U.S.C.C.A.N. We note that U.S.C. independent 108.7, executive branch as an restructured thus disapproved 11 C.F.R. and not seen to be agency,' comprised of six commissioners regulation not suggesting that inconsistent appointed by the advice the President with Weber, Congressional 995 F.2d intent. See with three of No more than consent of the Senate. at 876-77. may be affiliated with the commissioners political party. same response opinion in was issued This formal 9. another, persistent, inquiry by member more an procedures must follow FEC FECA details running Assembly Georgia General' regulations. must sub- prescribing The FEC Congress. accompanying regulation proposed and an mit a Senate; if to both the House and statement ry opinion deference”). noted the district court decision in FECA “considerable This is concluded, this case and only “Under the broad because of the responsibil extensive [FECA], preemptive powers only ity Federal arid discretion in administering FECA limit law could the time which a expressly con- vested in by Congress, the FEC tribution be made to the Federal elec- light but also in of the fact that “the Commis legislator.” tion of a State Id. sion inherently bipartisan ... and it must decide charged issues dynamics with the Thus, even if the provi- FECA party politics, pressure often under the of an sufficiently sion is not determinate on its face Id.; impending election.” see also Common O.C.GA the FEC’s FEC, (D.C.Cir. Cause v. 842 F.2d unambiguous understanding is that FECA 1988) (judicial deference particularly appro preempts the pressing state statute. The priate FECA, in the context of which explic question therefore, point, at this is to what itly bipartisan relies on the Commission as extent this court should defer to the FEC’s enforcer). primary Deference to FEC interpretation Although of FECA. this court interpretations of appropriate FECA is could, course, accept interpreta- the FEC’s only for rules but also for advisory opinions, simply persuasive authority, tion in fact I given express the FEC’s statutory responsi obliged believe that we are to take the FEC’s bility for issuing advisory opinions concern interpretation merely as more than convinc- ing application FECA. ing. 437d, §§ 437f. See FEC v. Repub Colorado Supreme Comm., Court has instruct lican Fed. Campaign 59 F.3d ed, Congress, through Cir.1995) “When express dele (deferring to FEC inter — gation or the interpretive pretive introduction of an advisory opinions), granted, cert.- gap statutory structure, -, delegated 116 S.Ct. 133 L.Ed.2d 594 policy-making authority (1996); to an administrative Haley Congressional FEC Ted agency, judicial Comm., the extent of (9th Cir.1988) review of the agency’s policy (FEC determinations is interpretation limited.” through regu- Mines, Inc., Pauley BethEnergy advisory lations and opinions “entitled to due 680, 696, 2524, 2534, 115 L.Ed.2d deference and is to accepted by be the court language gener This reflects the demonstrably unless or clearly irrational con- principle al established in trary the landmark plain case to the meaning statute”); Chevron, U.S.A., Orloski, (FEC Inc. v. Natural Re 795 F.2d at 164 Council, Inc., sources given FECA should be deference because Defense (1984), 81 L.Ed.2d 694 that if statutory responsibility FEC’s to issue advi- a statute is “silent ambiguous sory opinions “implies intend- specific to the question, issue” in courts ed the Commission to fill in gaps left in the accept should “reasonable” administrative in any statute and to ambiguities resolve in the language”).10 terpretations. 843-44, 104 See id. at statutory S.Ct. at is, however, There one further twist to FEC, particular, “pre Chevron deference: not be obvious cisely type agency to which obligation deference that this court’s to defer to FEC presumptively should interpretations afforded.” FEC v. of FECA attaches even when Comm., Democratic Campaign Senatorial interpretations those scope address the 37, 45; 454 U.S. at 102 S.Ct. at preemption see also of state law regula- federal FEC, (D.C.Cir. 156, Orloski v. I recognize tion. that the law be unset- 1986) (allowing interpretation general FEC’s of in application tled as to the of Chev- multiple 10. The fact that advisory opin- deference, FEC sued via decision letter entitled to interpreting ions preempt regula- FECA to state noting interpretation given was “in order to timing tions of the important recurring resolve an it,” and matter before have been consistent further militates in favor of "agency applied and interpreta this See, Bush, e.g., Wagner deference. 946 F.2d Seed Co. v. denied, 970, consistently”), tion cert. 503 U.S. 918, (D.C.Cir.1991) (in 921-22 1584, (1992). 112 S.Ct. 118 L.Ed.2d 304 concluding interpretation course of that EPA is- long recognized that It has been agency’s determination of its own ron an Sunstein, many responsibilities conferred on of the jurisdiction. generally Cass R. grant a agencies federal involve broad Chevron, After Law Administration authority conflicting policies. to reconcile (1990). 2071, In- Colum.L.Rev. true, the cautioned Where this is Court has deed, is an inherent tension between there if pre-emption, in area of even deference, only obtains where Chevron agency’s pre-empt a “represents choice to Chevron, ambiguous,” is “silent or statute conflicting reasonable accommodation 843, 2782, pre- at at 104 S.Ct. U.S. policies agen that were committed to the doctrine, emption which maintains that state statute, cy’s we by the should not care that is “the law will not be -unless appears it stat disturb it unless Congress,” clear manifest history legislative ute or that the ac Rice, 230, So, at 67 S.Ct. at 1152. 331 U.S. Congress not one that commodation is say agen- defer that a court should to an would have sanctioned.” cy’s preempt- that state is determination 1637, 57, 1642, 100 paradoxical: agency seemingly ed is (1988) (quoting United States would deference under Chevron command Shimer, 367 U.S. only ambiguous; if federal statute were (1961), citing Capital 6 L.Ed.2d 908 ambiguous, if but the federal statute were Cable, Crisp, 467 Inc. v. 698- Cities seemingly Congress’s preempt then intent to L,Ed.2d 2694, 2700, 81 would not be “clear manifest.” Further- (1984)). FEC, agency An like the to which (or more, powers in- although separation of in delegated broad discretion competence) might concerns coun- stitutional administering complex interpreting and deferring agencies in in sel favor of courts’ regime, sig- regulatory entitled to ambiguous questions of stat- resolution acting nificant within latitude when its statu- utory interpretation,11 countervailing federal- tory in authority, even its decisions as to the ism offset this rationale for Chevron concerns scope preemption of state law. See also Although preemption in deference cases. Fidelity Savings & Loan v. de la Fed. Ass’n agencies democratically more ac- are Cuesta, 141, 151-55, 458 U.S. courts, legislatures state are countable than Lou- 73 L.Ed.2d 664 But cf. arguably yet politically more accountable. FCC, isiana Pub. Serv. Comm’n abstract, then, not at all clear that 90 L.Ed.2d 369 a federal does not state’s view that (overturning agency determina- give way preempt law should to a fed- deference). tion without mention Chevron agency’s eral view that the statute does words, In other if a statute face even is on its preempt. ambiguous, Congress’s intent agency be clear when the administrative Fortunately, completely I need not untan expressly interpreting responsible jurisprudence gle knotty issue of in or this implementing statute has it. clarified der to that the FEC’s conclude case. Finally, is entitled deference has failed to construct a the State FCC, In City compelling argument New York v. a unanimous inter- FEC’s sufficiently pretation preemptive Court the law to settle effect of FECA clarified congres- or inconsistent with issue before us: unreasonable judges constituency have no 11. The Court articulated this rationale Chevron —who —have duty legitimate policy passages such as this: choices made responsibilities do. The for as field, those who Judges experts not in the and are policy sessing the wisdom of choices and political part Gov- of either branch of the struggle competing resolving the between ... ernment. public judicial views interest are challenge agency to an construction When a responsibil ones: vests such fairly "Our Constitution statutory provision, conceptualized, Hill, ities branches.” TV A v. really agency’s on the wisdom of the centers [57 policy, [437 195] whether it rather than is reasonable gap open Congress, 117] the choice within left case, at 2793. challenge 467 U.S. at must fail. federal contrary, I the is a To the find eral office “State intent. law with to sional persuasive interpretation and corro- election Federal simple FEC’s to office.” It is as as (and court’s) Moreover, my nothing the district that. in legisla- own either the borative scope understanding history of the of the FECA tive of the act or in the rules and Thus, provision. regulations adopted by even if the preemption the Federal Election preemption provision, light any upon read in casts FECA Commission doubt the clear Act, not purposes preemptive and structure of the is the manifest of Con- adequately gress clear to the plainly as stated in act itself.1 expressly, FEC’s statute Judge The discussion in opinion Kravitch’s matter. I conclude settles the about might the deference that be due the 21-5-35, applied that. O.C.GA. to candi- regulations advisory opin Commission’s office, Thus, preempted. for dates any ions if were in ambiguity there FECA’s correctly Tep- the district court decided that is, view, preemption language in my unneces er has a substantial likelihood of success sary proper appeal, to decision of this be the merits. cause is no ambiguity statutory there in the grant preliminary The district court’s language. Accordingly, agree I while that injunction is AFFIRMED. 21-5-35, preempts O.C.G.A I do join part Judge not opinion Kravitch’s CARNES, Judge, concurring: Circuit that discusses effect of the Federal Elec tion regulations I Commission’s holding advisory concur in Court’s opinions. which has the O.C.GA effect

limiting making the time for office, HILL, Judge, dissenting:

some candidates Senior Circuit the Federal Election Cam- I I my dissent and state reason succinct- (“FECA”). paign seq. 431 et 1ly: dog.” “The fleas come with the However, upon I would base that conclusion First, there is no issue as whether or express language preemption law, FECA, preempts the federal act, in clause 2 U.S.C. which states so, Therefore, law. explicitly. It does what unambiguously provisions act controls, federal law state law not. it, prescribed “supersede and rules under preempt any provision inquiry. State law That is not the end of the (em- respect to preemption election to Federal office.” is coextensive with FECA —no added) more, phasis So, A regulating state law no less. we should determine how category.of in goes. time which a ac- legislative citizens can far FECA We look cept history contributions to run for election fed- to understand FECA2 legislative history Judge disagree, judg- 1. discussed in Hill’s law. I While I realize dissenting opinion not cast does such doubt. Al ought right away. ment to be mandated I should state, though report a Senate "It conference does delay engaging not be the instrument of while in any the intent is regulating of the conferees that State [NOTE; lengthy writing. opinion This was writ- activities of State and Georgia legislature ten and submitted while the employees preempted or local officers and is not session.] was still in FECA],” superseded by [the the amendments to S.Conf.Rep. (1974), Cong., No. 93d 2d Sess. argued, correctly, that we need Briefs have reprinted in U.S.C.C.A.N. legislative history look to the of this Act to deter- 5669, it is at clear that this statement was aimed correct, mine vel but non. That preserving the so-called "little Hatch acts” of the FECA, and, therefore, extent of the reach of states, permitting regulation not at direct just preempts, what it is not so clear. activities of federal candidates. See Weber (8th Cir.1993) Heaney, 995 F.2d 876-77 comfort, majority finds footnote 7 Our to the (overturning creating monetary state law incen that, noting opinion, long passage after tives federal candidates to limit amendment, its 1974 FECA and Commission expenditures); Comm’rs, City Reeder v. Kansas Bd. Police proposed Congress regulation submitted (8th Cir.1984) prior promulgate allowed and was not to the act"). (upholding a “little Hatch thirty days. Noting expiration of does, effect, disapprove regulation, Today, panel’s judgment proposed did not our our appellee Teper congres- majority suggests release restraint of believes that this requirements, it City complies Bd. with the would v. Police In Reeder Kansas (8th

Comm’rs, Cir.1984), may raising a fund 733 F.2d 543 seem that one conduct just that: Eighth campaign. Circuit did report on the bill The conference judge may that a not. Fund But I think little the 1974 amendment leaves became applicable spe- a raising would violate canon question. this The re- room doubt on Georgia cifically the office. Code of See says: port 5(B)(2). Conduct, judge Canon The Judicial any It of the conferees that is intent By position doing accepted a of trust. political regulating the activi- State law so, right relinquished he or she and local officers and em- ties of State funds, may though do solicit all the rest so. ployees preempted superseded is or fleas, indeed, see, you come So do by to title United the amendments dog. Code, by legislation. this made States preemption. implicate does not The above Cong., 2d S.Conf.Rep. 93d No. proper It of statutes illustrates construction Sess., Cong. reprinted in 1974 U.S.Code & fully compatible. in but apparent tension Furthermore, Ad.News principles may same of construction The report right before the conference was of one employed be where rule is Senate, by colloquy a took agreed Rights trumps Bill of all clear. Our aces. place between Senator Stevens Sena- provision preemptive. No of law is more very point. tor Cannon that covers Cannon was Chairman Senator example, protected expression For free Administration, Committee Rules Amendment; may there no the First reported, senior from which the bill was Indeed, spite contrary. in state law to the Senate, part conferee (and disapproval many strong some of states floor, manager so of the bill on the Senate citizens), deemed some conduct free their special weight given his remarks must be expression bizarre embodied rather enter- determining meant what subject regulation. is not to state tainment say. “any Mr. Cannon stated State Theatre, Inc., 501 See Barnes v. Glen regulating activity law of State (1991); L.Ed.2d 504 employees is not local officers or (11th Dean, see F.3d 1495 also Redner superseded.” ... preempted [or] Cir.1994). (Oct. 1974). Cong.Rec. “It [would time, consump- At the same the sale up to ... the State to determine the be] beverage peculiarly subject tion of alcohol is they may participate to which extent Eighteenth regulation. When Ibid, (remarks Federal elections.[.]” whiskey” Amendment’s “war ended with Stevens). Senator Amendment, Twenty-first control alco- Reeder, 733 F.2d at 545-46. given hol was states. may says one- When law that one avail that, upshot of this while says right self of —as prohibit scantily terpsichorean clad candidate and receive solicit (it’s performing protected performers from forbid candi- funds —that does not expression), Georgia absolutely prohibit can voluntarily surrendering date from at places the sale of alcohol where dancers right. Liquor New York Authori- dance. See State happens all It the time. Bellanca, ty v. law, itself, (1981); partic- also Geaneas v. circumscribes see Cir.1990). Willets, raising ipation in fund activities. 911 F.2d charitable state, Amendment, If seq. et meets the First See O.C.G.A. one by legislators then-Judge expressions FECA in with that hoc sional accord —what “subsequent legislative history’’ Commission. Scalia called —is cases, however, Walters, long We have a line of weight. Gott no hold that once bill has become an (D.C.Cir.1985). interpretation of the Third Post it is for Branch. undertaking regulate qua dancers validly regulating dancers. It is the sale and

consumption qua of alcohol alcohol. us, I the ease before see no indication regulate has undertaken to can- qua

didates for federal office candidates. -validly,

The state I believe —to undertakes — regulate legislators qua legislators. its If

appellee Teper unwisely feels that he has by becoming legisla-

encumbered himself

tor, key he holds the to his release in his own

pocket.

I have undertaken to be deferential to the

conclusions of the Federal Election Cam-

paign power Commission that its trumps this law, but I remain convinced that really I is flawed. doubt that preemptive

the reach of FECA is more than

the First Amendment.

I would reverse. THORNQUEST; Brady;

Alan Marion Ward,

Thomas S. Plaintiffs-

Appellants, KING, individually

Maxwell C. and in his capacity

official as Administrative Em-

ployee Community College; of Brevard Lawton, individually

Robert E. and in capacity

his official as Administrative

Employee Community of Brevard Col-

lege; Crouse, individually Tace T. and in capacity

his official as Administrative

Employee Community of Brevard Col-

lege, al., Defendants-Appellees. et

No. 94-2278. Appeals,

United States Court of

Eleventh Circuit.

9,May

Case Details

Case Name: Teper v. Miller

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 24, 1996

Citation: 82 F.3d 989

Docket Number: 96-8147

Court Abbreviation: 11th Cir.