Filed: Apr. 24, 1996
Latest Update: Feb. 21, 2020
Summary: CARNES, Circuit Judge, concurring: I concur in the Court's holding that O.C.G.A. § 21-5-35, which has the effect of limiting the time for making contributions to some candidates for federal office, is preempted by the Federal Election Campaign Act, 2 U.S.C. § 431 et seq. ("FECA"). However, I would base that conclusion upon the express language of the preemption clause in the act, 2 U.S.C. § 453, which states unambiguously that the provisions of the act and rules prescribed under it, "supersede a
Summary: CARNES, Circuit Judge, concurring: I concur in the Court's holding that O.C.G.A. § 21-5-35, which has the effect of limiting the time for making contributions to some candidates for federal office, is preempted by the Federal Election Campaign Act, 2 U.S.C. § 431 et seq. ("FECA"). However, I would base that conclusion upon the express language of the preemption clause in the act, 2 U.S.C. § 453, which states unambiguously that the provisions of the act and rules prescribed under it, "supersede an..
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CARNES, Circuit Judge, concurring:
I concur in the Court's holding that O.C.G.A. § 21-5-35, which
has the effect of limiting the time for making contributions to
some candidates for federal office, is preempted by the Federal
Election Campaign Act, 2 U.S.C. § 431 et seq. ("FECA"). However,
I would base that conclusion upon the express language of the
preemption clause in the act, 2 U.S.C. § 453, which states
unambiguously that the provisions of the act and rules prescribed
under it, "supersede and preempt any provision of State law with
respect to election to Federal office." (emphasis added) A state
law regulating the time in which a category of citizens can accept
contributions to run for election to federal office is a "State law
with respect to election to Federal office." It is as simple as
that. Moreover, nothing in either the legislative history of the
act or in the rules and regulations adopted by the Federal Election
Commission casts any doubt upon the clear and manifest preemptive
purpose of Congress as plainly stated in the act itself.1
The discussion in Judge Kravitch's opinion about the deference
that might be due the Commission's regulations and advisory
1
The legislative history discussed in Judge Hill's
dissenting opinion does not cast such doubt. Although a Senate
conference report does state, "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 [the FECA]," S. Conf. Rep. No. 1237, 93d Cong., 2d
Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 5618, 5669, it is
clear that this statement was aimed at preserving the so-called
"little Hatch acts" of the states, not at permitting direct
regulation of the activities of federal candidates. See Weber v.
Heaney,
995 F.2d 872, 876-77 (8th Cir. 1993) (overturning state law
creating monetary incentives for federal candidates to limit
campaign expenditures); Reeder v. Kansas City Bd. of Police
Comm'rs,
733 F.2d 543, 545-46 (8th Cir. 1984) (upholding a "little
Hatch act").
opinions if there were any ambiguity in FECA's preemption language
is, in my view, unnecessary to proper decision of this appeal,
because there is no ambiguity in the statutory language.
Accordingly, while I agree that FECA preempts O.C.G.A. § 21-5-35,
I do not join the part of Judge Kravitch's opinion that discusses
the effect of the Federal Election Commission's regulations and
advisory opinions.
2