Teper v. Miller ( 1996 )

  •                     United States Court of Appeals,
                                   Eleventh Circuit.
                                     No. 96-8147.
      Doug TEPER, Louis Feingold, Alan Ulman, Plaintiffs-Appellees,
    Zell MILLER, in his official capacity as Governor of the State of
       Georgia, Michael Bowers, in his official capacity as Attorney
       General of the State of Georgia, Max Cleland, in his official
       capacity as Secretary of State of the State of Georgia, Steven
       Scheer, Steven White, Michael D. Mcrae, Brian Foster, in their
       official capacities as Members of the Georgia State Ethics
       Commission, Defendants-Appellants.
                                    April 24, 1996.
    Appeal from the United States District Court for the Northern
    District of Georgia. (No. 1:96-CV-9-WBH), Willis B. Hunt, Jr.,
    Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior
    Circuit Judge.
          KRAVITCH, Circuit Judge:
          Officials of the State of Georgia appeal the grant of a
    preliminary injunction against enforcement of O.C.G.A. § 21-5-35 to
    prohibit   a     member   of    the    General    Assembly   from     accepting
    contributions for a campaign for federal office while the General
    Assembly is in session.        The court (Judge Hill dissenting) affirms
    the   district     court's     grant   of   the    preliminary      injunction,
    concluding that the Georgia statute is preempted by the Federal
    Election Campaign Act.
          Doug Teper is a member of the Georgia General Assembly who is
    contemplating a campaign for federal office; Teper's co-plaintiffs
    are potential contributors to his federal campaign. As a member of
    the General Assembly, Teper is precluded by a provision of the
    Georgia   Ethics   in   Government   Act,   O.C.G.A.    §   21-5-35,   from
    accepting campaign contributions during any legislative session.
    The most recent session of the General Assembly began on January 8,
    1996, and ran through the beginning of April.1         Teper asserts that
    had he been barred from accepting contributions for his federal
          The General Assembly session ended after oral argument in
    this case but before this opinion had issued. Adjournment of the
    General Assembly session did not render the case moot, however.
    The Supreme Court has recognized that often in cases challenging
    rules governing elections there is not sufficient time between
    the filing of the complaint and the election to obtain judicial
    resolution of the controversy before the election. Consequently,
    the Court has allowed such challenges to proceed under the
    "capable of repetition yet evading review" exception to the
    mootness doctrine. See Norman v. Reed, 
    502 U.S. 279
    , 286-89, 
    112 S. Ct. 698
    , 704-05, 
    116 L. Ed. 2d 711
     (1992); First Nat'l Bank of
    Boston v. Bellotti, 
    435 U.S. 765
    , 772-76, 
    98 S. Ct. 1407
    , 1414-15,
    55 L. Ed. 2d 707
     (1978); Moore v. Ogilvie, 
    394 U.S. 814
    , 814-16,
    89 S. Ct. 1493
    , 1494, 
    23 L. Ed. 2d 1
     (1969); see also American
    Civil Liberties Union v. Florida Bar, 
    999 F.2d 1486
    , 1496-97
    (11th Cir.1993).
              This exception applies under two conditions: "(1) the
         challenged action was in its duration too short to be fully
         litigated prior to its cessation or expiration, and (2)
         there was a reasonable expectation that the same complaining
         party would be subject to the same action again." Weinstein
         v. Bradford, 
    423 U.S. 147
    , 149, 
    96 S. Ct. 347
    , 349, 
    46 L. Ed. 2d 350
     (1975) (per curiam); see also News-Journal
         Corp. v. Foxman, 
    939 F.2d 1499
    , 1507 (11th Cir.1991).
         Application of the "capable of repetition yet avoiding
         review" exception is particularly appropriate in cases like
         Teper's presenting "as applied" challenges to state law,
         because "[t]he construction of the statute, an understanding
         of its operation, and possible constitutional limits on its
         application, will have the effect of simplifying future
         challenges, thus increasing the likelihood that timely filed
         cases can be adjudicated before an election is held."
         Storer v. Brown, 
    415 U.S. 724
    , 737-38, 
    94 S. Ct. 1274
    , 1282-
         83 n. 8, 
    39 L. Ed. 2d 714
     (1974). Given that our decision in
         this expedited appeal has come too late for the current
         legislative session, because Teper himself certainly could
         desire to accept campaign contributions during a future
         session, and in view of the importance of this issue and its
         possible bearing on other similarly situated state elected
         officeholders, this case is not mooted just because the
         General Assembly recently has adjourned.
    campaign until the end of the session, he would have been seriously
    disadvantaged relative to other federal candidates who are not
    state officials. Indeed, he might have been faced with the dilemma
    of resigning from state office or foregoing his federal campaign.
         Teper contends that § 21-5-35 is preempted by federal campaign
    finance laws, which place no such prohibition on the timing of
    campaign   contributions.          In   particular,     the   Federal      Election
    Campaign   Act   ("FECA"),     2    U.S.C.   §   431    et    seq.,   includes   a
    preemption provision, which states that "[t]he 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."   2 U.S.C. § 453.
         On January 2, 1996, Teper filed a motion in district court
    requesting   a   preliminary       injunction    prohibiting      Georgia    state
    officials ("the State") from enforcing § 21-5-35 as it applies to
    candidates   for   federal     office.         The     district   court,     after
    concluding that Teper had standing to challenge the state statute,
    determined that Teper had a substantial likelihood of success on
    the merits of his claim that § 21-5-35 was preempted by FECA and
    regulations promulgated by the Federal Election Commission ("FEC")
    under the Act.2     Consequently, the district court preliminarily
    enjoined   enforcement   of    §     21-5-35     as   it   relates    to   federal
          In addition to the winning preemption claim, Teper argued
    to the district court that enforcement of § 21-5-35 violated the
    First Amendment and the Equal Protection Clause. The district
    court did not reach these claims, and they are not before this
    court on appeal.
             The sole issue on appeal is whether Teper has a substantial
    likelihood of success on the merits of his claim that O.C.G.A. §
    21-5-35 is preempted by FECA and FEC regulations.       The district
    court, in granting Teper a preliminary injunction, concluded that
    O.C.G.A. § 21-5-35, as applied to federal candidates, falls within
    the scope of FECA's preemption provision.     We review the ultimate
    decision of whether to grant a preliminary injunction for abuse of
    discretion, but we review de novo determinations of law made by the
    district court en route.    Haitian Refugee Ctr., Inc. v. Baker, 
    953 F.2d 1498
    , 1505 (11th Cir.), cert. denied, 
    502 U.S. 1122
    112 S. Ct. 1245
    117 L. Ed. 2d 477
     (1992).    The interpretation and application
    of a federal statute raises an issue of law, subject to plenary
    review.    See, e.g., United States v. McLeod, 
    53 F.3d 322
    , 324 (11th
             Preemption doctrine is rooted in the Supremacy Clause and
    grows from the premise that when state law conflicts or interferes
    with federal law, state law must give way.   See, e.g., CSX Transp.,
    Inc. v. Easterwood, 
    507 U.S. 658
    , 662-64, 
    113 S. Ct. 1732
    , 1737, 
    123 L. Ed. 2d 387
     (1993);     Cipollone v. Liggett Group, Inc., 
    505 U.S. 3
          In order to warrant the grant of a preliminary injunction,
    a plaintiff has the burden of proving four factors: (1) a
    substantial likelihood of success on the merits; (2) a
    substantial threat of irreparable injury in the injunction were
    not granted; (3) that the threatened injury to the plaintiff
    outweighs the harm an injunction may cause the defendant; and
    (4) that granting the injunction would not disserve the public
    interest. See, e.g., Church v. City of Huntsville, 
    30 F.3d 1332
    1342 (11th Cir.1994). The district court found that Teper had
    established the second, third, and fourth of these factors before
    proceeding to focus on the first.
    504,   515-16,    
    112 S. Ct. 2608
    ,   2617,   
    120 L. Ed. 2d 407
    Federalism concerns counsel that state law should not be found
    preempted     unless    that   is    "the   clear   and   manifest    purpose   of
    Congress."     Rice v. Santa Fe Elevator Corp., 
    331 U.S. 218
    , 230, 
    67 S. Ct. 1146
    , 1152, 
    91 L. Ed. 1447
     (1947).             "Clear and manifest" does
    not necessarily mean "express," however, and Congress's intent to
    preempt can be implied from the structure and purpose of a statute
    even if it is not unambiguously stated in the text.                 Jones v. Rath
    Packing Co., 
    430 U.S. 519
    , 523-25, 
    97 S. Ct. 1305
    , 1309, 
    51 L. Ed. 2d 604
            The    Supreme    Court      has    identified    three    categories   of
    preemption:      (1) "express," where Congress "define[s] explicitly
    the extent to which its enactments pre-empt state law," English v.
    General Elec. Co.,       
    496 U.S. 72
    , 79, 
    110 S. Ct. 2270
    , 2275, 
    110 L. Ed. 2d 65
     (1990);        (2) "field," in which Congress regulates a
    field so pervasively, or federal law touches on a field implicating
    such a dominant federal interest, that an intent for federal law to
    occupy the field exclusively may be inferred;                     (3) "conflict,"
    where state and federal law actually conflict, so that it is
    impossible for a party simultaneously to comply with both, or state
    law "stands as an obstacle to the accomplishment and execution of
    the full purposes and objectives of Congress," Hines v. Davidowitz,
    312 U.S. 52
    , 67, 
    61 S. Ct. 399
    , 404, 
    85 L. Ed. 581
     (1941).                        See
    English, 496 U.S. at 78-80, 110 S.Ct. at 2275.               Preemption of any
    type "fundamentally is a question of congressional intent."                   Id.
           In order to decide the preemptive effect of FECA on O.C.G.A.
    § 21-5-35, we must juxtapose the state and federal laws, demarcate
    their respective scopes, and evaluate the extent to which they are
    in tension.
         O.C.G.A. § 21-5-35(a) provides, "No member of the General
    Assembly or that member's campaign committee or a public officer
    elected statewide or campaign committee of such public officer
    shall accept a contribution during a legislative session."               A
    "contribution"   is    defined   to   include   "a   gift,   subscription,
    membership, loan, forgiveness of debt, advance or deposit of money
    or anything of value conveyed or transferred for the purpose of
    influencing the nomination for election or election of any person
    for office."   "Office" is understood to include federal offices.
         The Attorney General of Georgia has described the purpose of
    the statute as follows:
         It is clear that the General Assembly intended O.C.G.A. § 21-
         5-35 to prevent even the appearance of impropriety by its
         members or certain state officers in accepting contributions
         during a period where legislation is pending and there could
         be a perception that any legislative action could be
         influenced by the giving of a campaign contribution. This
         strong statement by the General Assembly is consistent with
         its desire that public officials not be influenced in the
         performance   of   their   duties  by   improper   "political
         contributions." See O.C.G.A. § 16-10-2 (bribery prohibited);
         see also State v. Agan, 
    259 Ga. 541
    384 S.E.2d 863
    ] (1989),
         cert. denied, 
    494 U.S. 1057
    110 S. Ct. 1526
    108 L. Ed. 2d 765
    Op. Att'y Gen. U95-27.    The State similarly describes § 21-5-35 as
    "regulat[ing] the actions of state officials in order to preserve
    the public's faith in the integrity of the political system."          Br.
    of Appellants at 10.    No one disputes that § 21-5-35 would have the
    effect of precluding members of the General Assembly from accepting
    contributions for federal campaigns while the Assembly is in
           Nor does anyone dispute the well established "constitutional
    power of Congress to regulate federal elections."                Buckley v.
    424 U.S. 1
    , 13, 
    96 S. Ct. 612
    , 632, 
    46 L. Ed. 2d 659
    The Federal Election Campaign Act of 1971 (as amended), 2 U.S.C. §
    431    et    seq.,   creates   an   intricate    federal   statutory   scheme
    governing       campaign   contributions   and    expenditures   related   to
    federal elections.4        Various FECA provisions detail the structure
    of political committees, impose reporting requirements, empower and
    design the FEC, place limitations on the amounts of campaign
    contributions and expenditures by individuals and corporations, and
    restrict the use of such funds.
           FECA was amended in 1974 to include a preemption provision,
    which states that "[t]he provisions of this Act, and of rules
    prescribed under this Act, supersede and preempt any provisions of
    state law with respect to election to Federal office."            2 U.S.C. §
    453.       The current § 453 replaced a prior provision that included a
    savings clause, expressly preserving state laws, except where
    compliance with state law would result in a violation of FECA or
    would prohibit conduct permitted by FECA.             See Federal Election
    Campaign Act of 1971, Pub.L. No. 92-225, 1972 U.S.C.C.A.N. (86
          In Buckley, 
    424 U.S. 1
    96 S. Ct. 612
    , the Supreme Court
    upheld FECA's contribution limitations, record-keeping and
    disclosure requirements, and provisions for public financing of
    Presidential elections and conventions; however, the Court also
    held that certain expenditure limitations under the Act were in
    violation of the First Amendment and that the exercise of
    administrative and enforcement powers delegated to the FEC was
    unconstitutional because of the way the Committee members were
    appointed. FECA was amended in 1976 to reconstitute the FEC to
    allow it to exercise its full powers under the Act
    constitutionally. See infra note 7. Otherwise, Buckley 's
    effect on FECA is of no consequence for the present case.
    Stat.) 23 (amended by Federal Election Campaign Act Amendments of
    1974, Pub.L. No. 93-443, 1974 U.S.C.C.A.N. (88 Stat.) 1469).                              The
    House Committee that drafted the current provision intended "to
    make certain that the Federal law is construed to occupy the field
    with respect to elections to Federal office and that the Federal
    law will be the sole authority under which such elections will be
    regulated."          H.R.Rep. No. 1239, 93d Cong., 2d Sess. 10 (1974).
               "When Congress ... has included in the enacted legislation a
    provision       explicitly         addressing       [preemption],       and    when       that
    provision provides a "reliable indicium of congressional intent
    with       respect    to    state      authority,    there   is    no   need    to    infer
    congressional intent to pre-empt state laws from the substantive
    provisions' of the legislation."                Cipollone, 505 U.S. at 517, 112
    S.Ct. at 2618 (citations omitted).                    The express language of the
    broadly       worded       FECA   preemption    provision,        illuminated        by    the
    legislative history, may be sufficiently clear to preempt O.C.G.A.
    § 21-5-35, which could readily be understood as a "state law with
    respect to election to Federal office." Likewise, this court could
    determine that FECA has "occupied the field" of regulation of
    federal elections and that the Georgia statute has impermissibly
    strayed into this field.5
               I have no doubt that the purpose of the state law is, as the
    Attorney General and State assert, to prevent the appearance of
    impropriety—bribery,              to   be   precise—that     may    arise     when    state
          In this case, express preemption via the FECA preemption
    clause and field preemption are no different in practice. The
    FECA preemption clause means that FECA occupies the field "with
    respect to election to federal office." 2 U.S.C. § 453. The
    only real issue is the effective reach of this phrase.
    legislators accept campaign contributions during the period of time
    when they are actually legislating. To be sure, the Georgia Ethics
    in Government Act is an admirable example of self-regulation by
    incumbent state legislators, and it is not specifically directed
    toward federal elections.              Nonetheless, it is the         effect of the
    state law that matters in determining preemption, not its intent or
    purpose.       Under the Supremacy Clause, state law that in effect
    substantially      impedes        or    frustrates     federal      regulation,   or
    trespasses on a field occupied by federal law, must yield, no
    matter how admirable or unrelated the purpose of that law.                        See
    Gade v. National Solid Wastes Management Ass'n, 
    505 U.S. 88
    , 105,
    112 S. Ct. 2374
    , 2387, 
    120 L. Ed. 2d 73
     ("In assessing the impact of
    a state law on the federal scheme, we have refused to rely solely
    on the legislature's professed purpose and have looked as well to
    the effects of the law.");             Felder v. Casey, 
    487 U.S. 131
    , 138, 
    108 S. Ct. 2302
    ,    2307,      
    101 L. Ed. 2d 123
       (1988)    ("   "[T]he   relative
    importance to the State of its own law is not material when there
    is a conflict with a valid federal law,' for "any state law,
    however    clearly     within      a    State's      acknowledged     power,   which
    interferes with or is contrary to federal law, must yield.' ")
    (quoting Free v. Bland, 
    369 U.S. 663
    , 666, 
    82 S. Ct. 1089
    , 1092, 
    8 L. Ed. 2d 180
     (1962));          Napier v. Atlantic Coast Line R.R. Co., 
    272 U.S. 605
    ,    612,   
    47 S. Ct. 207
    ,    209-10,   
    71 L. Ed. 432
    (preemption depends not on whether federal and state laws "are
    aimed at distinct and different evils" but whether they "operate
    upon the same object").
           In this case, the effect of O.C.G.A. § 21-5-35 is to place a
    limitation on Teper's fundraising for his federal campaign.                        It
    would be possible to conclude, therefore, that the state law
    operates "with respect to election to Federal office," and thus
    falls within FECA's express preemption provision, 2 U.S.C. § 453.6
    Other courts have found express FECA preemption of state laws that
    are no more, or not much more, intrusive of federal regulation.
    See   Bunning    v.    Commonwealth of Kentucky,          
    42 F.3d 1008
    Cir.1994) (holding that § 453 preempts state law purporting to
    regulate poll conducted by U.S. Congressman's federal election
    committee to test the effectiveness of advertising conducted during
    a federal campaign);            Weber v. Heaney,      
    995 F.2d 872
    , 875 (8th
    Cir.1993) (concluding that, "under every plausible reading of §
    453," state law establishing system of public funding for U.S.
    Congressional candidates "falls squarely within the boundaries of
    the preempted domain").             And cases in which preemption was not
    found invariably involve state laws that are more tangential to the
    regulation      of    federal    elections.     See     Karl   Rove     &    Co.   v.
    39 F.3d 1273
        (5th   Cir.1994)   (federal       candidate's
    personal,     contractual        liability    for   costs      of   direct     mail
    fundraising services during his campaign not preempted);                    Stern v.
    General Elec. Co., 
    924 F.2d 472
     (2d Cir.1991) (state law claims of
    corporate waste based on corporation's contributions to federal
    political campaigns not preempted);            Reeder v. Kansas City Bd. of
    Police Comm'rs, 
    733 F.2d 543
     (8th Cir.1984) (ban on political
    contributions by city police department employees not preempted).
    I hesitate, however, to conclude summarily that the preemptive
           Indeed, this is Judge Carnes's conclusion.
    scope of § 453 is so unambiguous as to evince a "clear and manifest
    purpose of Congress," Rice, 331 U.S. at 229, 67 S.Ct. at 1152, to
    encompass state laws such as § 21-5-35.       Because further, and more
    definitive, evidence of Congress's intent is provided by the FEC's
    interpretation of FECA—and because § 453 incorporates by reference
    "rules prescribed under" FECA—I think it appropriate to take the
    agency's view into account before finally resolving the issue.
         The 1974 amendments to FECA created the FEC and "vest[ed] in
    it primary and substantial responsibility for administering and
    enforcing the Act," delegating to the agency "extensive rulemaking
    and adjudicative powers."        Buckley, 424 U.S. at 109, 96 S.Ct. at
    677-78;    see also FEC v. Democratic Senatorial Campaign Comm., 
    454 U.S. 27
    , 37-38, 
    102 S. Ct. 38
    , 45, 
    70 L. Ed. 2d 23
     (1981). 7        The FEC
    is authorized to prescribe rules and regulations to carry out the
    provisions of FEC, 2 U.S.C. § 438(a)(8), and to give, upon request,
    advisory opinions concerning the application of FECA, 2 U.S.C. §§
    437d(a)(7), 437f. Exercising this delegated authority, the FEC has
    promulgated regulations and issued a number of advisory opinions
    interpreting and applying FECA to determine its preemptive effect
    on state law.    With respect to the type of regulation imposed by
    O.C.G.A.    §   21-5-35,   the    FEC's   interpretation   of   FECA   is
    unambiguous:    such state laws are preempted.
          In response to Buckley, the 1976 amendments to FECA
    reconstituted the FEC to allow the agency constitutionally to
    exercise its delegated duties and powers under the Act. See
    S.Rep. No. 677, 94th Cong., 2d Sess. 1, 1-4 (1976), reprinted in
    1976 U.S.C.C.A.N. 929, 929-32. The FEC was restructured as an
    independent executive branch agency, comprised of six
    commissioners to be appointed by the President with the advice
    and consent of the Senate. No more than three of the
    commissioners may be affiliated with the same political party.
         A 1977 FEC regulation specifies that "Federal law supersedes
    state    law   concerning     ...   [l]imitation    on   contributions    and
    expenditures      regarding      Federal      candidates    and    political
    committees."       11   C.F.R.      §   108.7(b)(3).     Interpreting    this
    regulation, the district court plausibly determined that, according
    to the terms of the regulation, O.C.G.A. § 21-5-35 would be
    preempted, for "[a] restriction on when a potential candidate may
    accept contributions is simply another type of limitation."              The
    regulation also enumerates the following areas in which state law
    is not preempted:       "(1) [m]anner of qualifying as a candidate or
    political party organization;           (2) [d]ates and places of election;
    (3) [v]oter registration; (4) [p]rohibition of false registration,
    voting fraud, theft of ballots, and similar offenses;                or (4)
    [c]andidate's     personal     financial     disclosure."     11   C.F.R.   §
    108.7(c). Although, as the State emphasizes, the regulation allows
    states to legislate "[p]rohibition[s] of false registration, voting
    fraud, theft of ballots, and similar offenses," § 21-5-35 is not
    about voting fraud.      The Georgia statute operates against fraud at
    the level of governance, as in bribery of a state legislator
    through campaign donations, not at the level of registering to vote
    and casting ballots (which the state is free to regulate).              Thus,
    I am inclined to agree with the district court that the gloss this
    FEC regulation places on the FECA preemption provision could be a
    sufficient basis for inferring Congress's intent to preempt the
    Georgia law.8
          FECA details the requisite procedures FEC must follow in
    prescribing regulations. The FEC must submit a proposed
    regulation and an accompanying statement to both the House and
         Any residual ambiguity as to the FEC's understanding of the
    preemptive effect of FECA on the Georgia statute is conclusively
    resolved by FEC advisory opinions.          The FEC consistently has
    expressed the opinion that FECA preempts state statutes limiting
    the time frame during which federal candidates may accept campaign
    contributions.    See Op. FEC 1994-2 (advising that FECA preempts a
    Minnesota   statute   barring   lobbyists   from    contributing   to    a
    candidate during a regular session of the state legislature);           Op.
    FEC 1993-25 (advising that FECA preempts a Wisconsin statute
    restricting the time period during which lobbyists can contribute
    to candidates);    Op. FEC 1992-43 (advising that FECA preempts a
    Washington statute barring state officials from accepting campaign
    contributions during legislative sessions). In fact, Teper himself
    wrote to the FEC in November 1995 requesting an advisory opinion on
    the constitutionality of O.C.G.A. § 21-5-43.         In a reply letter
    dated December 5, 1995, the Associate General Counsel of the FEC
    wrote that a formal advisory opinion was unnecessary because FEC
    regulations and previous advisory opinions made clear that the
    Georgia law was preempted.        Subsequently, after the district
    court's decision in this case, the FEC did address § 21-5-35 in a
    formal advisory opinion,9 reiterating that the Georgia statute was
    preempted by FECA.     See Op. FEC 1995-48.        The advisory opinion
    the Senate; if neither disapproves the proposed regulation
    within thirty days, the FEC may issue it. 2 U.S.C. § 438(d). We
    note that Congress has seen and not disapproved 11 C.F.R. §
    108.7, thus suggesting that the regulation is not inconsistent
    with Congressional intent. See Weber, 995 F.2d at 876-77.
          This formal opinion was issued in response to an inquiry by
    another, more persistent, member of the Georgia General Assembly
    running for Congress.
    noted the district court decision in this case and concluded,
    "Under the broad preemptive powers of [FECA], only Federal law
    could limit the time during which a contribution may be made to the
    Federal election campaign of a State legislator."               Id.
          Thus,     even   if   the   FECA     preemption      provision    is   not
    sufficiently determinate on its face to preempt O.C.G.A. § 21-5-35,
    the FEC's unambiguous understanding is that FECA preempts the state
    statute.      The pressing question at this point, therefore, is to
    what extent this court should defer to the FEC's interpretation of
    FECA.    Although this court could, of course, accept the FEC's
    interpretation simply as persuasive authority, in fact I believe
    that we are obliged to take the FEC's interpretation as more than
    merely convincing.
            The Supreme Court has instructed, "When Congress, through
    express delegation or the introduction of an interpretive gap in
    the statutory structure, has delegated policy-making authority to
    an administrative agency, the extent of judicial review of the
    agency's policy determinations is limited."               Pauley v. BethEnergy
    Mines, Inc., 
    501 U.S. 680
    , 696, 
    111 S. Ct. 2524
    , 2534, 
    115 L. Ed. 2d 604
       (1991).      This     language     reflects   the    general     principle
    established in the landmark case of             Chevron, U.S.A., Inc. v.
    National Resources Defense Council, Inc., 
    467 U.S. 837
    104 S. Ct. 2778
    81 L. Ed. 2d 694
     (1984), that if a statute is "silent or
    ambiguous with respect to the specific issue" in question, courts
    should accept "reasonable" administrative interpretations. See id.
    at 843-44, 104 S.Ct. at 2782.
            The FEC, in particular, is "precisely the type of agency to
    which    deference     should       presumptively       be    afforded."          FEC    v.
    Democratic Senatorial Campaign Comm., 454 U.S. at 37, 102 S.Ct. at
    45;     see also Orloski v. FEC,          
    795 F.2d 156
    , 164 (D.C.Cir.1986)
    (allowing     the     FEC's        interpretation        of    FECA       "considerable
    deference").         This     is    not   only    because           of   the    extensive
    responsibility       and    discretion    in     administering           FECA   expressly
    vested in the FEC by Congress, but also in light of the fact that
    "the Commission is inherently bipartisan ... and it must decide
    issues charged with the dynamics of party politics, often under the
    pressure of an impending election."              Id.;    see also Common Cause v.
    842 F.2d 436
    ,     448     (D.C.Cir.1988)          (judicial        deference
    particularly appropriate in the context of FECA, which explicitly
    relies on the bipartisan Commission as its primary enforcer).
    Deference to FEC interpretations of FECA is appropriate not only
    for rules but also for advisory opinions, given the FEC's express
    statutory responsibility for issuing advisory opinions concerning
    the application of FECA.            2 U.S.C. §§ 437d, 437f.                    See FEC v.
    Colorado Republican Fed. Campaign Comm., 
    59 F.3d 1015
    , 1021 (10th
    Cir.1995) (deferring to FEC interpretive advisory opinions), cert.
    granted, --- U.S. ----, 
    116 S. Ct. 689
    133 L. Ed. 2d 594
     (1996);                          FEC
    v. Ted Haley Congressional Comm.,                  
    852 F.2d 1111
    ,      1115   (9th
    Cir.1988) (FEC interpretation of FECA through regulations and
    advisory opinions "entitled to due deference and is to be accepted
    by the court unless demonstrably irrational or clearly contrary to
    the plain meaning of the statute");              Orloski, 795 F.2d at 164 (FEC
    interpretation of FECA should be given deference because FEC's
    statutory responsibility to issue advisory opinions "implies that
    Congress intended the Commission to fill in gaps left in the
    statute     and    to   resolve       any     ambiguities           in     the     statutory
         There is, however, one further twist to Chevron deference: it
    may not be obvious that this court's obligation to defer to FEC
    interpretations of FECA attaches even when those interpretations
    address the scope of preemption of state law by federal regulation.
    I recognize that the law may be unsettled in general as to the
    application of Chevron to an agency's determination of its own
    jurisdiction.           See    generally          Cass       R.    Sunstein,        Law     and
    Administration      After     Chevron,       90    Colum.L.Rev.           2071,    2097-2101
    (1990).   Indeed, there is an inherent tension between                               Chevron
    deference,    which     only    obtains      where       a    statute      is     "silent   or
    ambiguous," Chevron, 467 U.S. at 843, 104 S.Ct. at 2782, and
    preemption doctrine, which maintains that state law will not be
    preempted    unless     that    is    "the    clear      and      manifest        purpose   of
    Congress," Rice, 331 U.S. at 230, 67 S.Ct. at 1152.                               So, to say
    that a court should defer to an agency's determination that state
    law is preempted is seemingly paradoxical:                               the agency would
    command deference under Chevron only if the federal statute were
    ambiguous;        but   if    the    federal      statute         were    ambiguous,      then
          The fact that the multiple FEC advisory opinions
    interpreting FECA to preempt state regulations of the timing of
    campaign contributions have been consistent further militates in
    favor of deference. See, e.g., Wagner Seed Co. v. Bush, 
    946 F.2d 918
    , 921-22 (D.C.Cir.1991) (in the course of concluding that EPA
    interpretation issued via decision letter entitled to deference,
    noting that interpretation was given "in order to resolve an
    important and recurring matter before it," and that "agency has
    applied this interpretation consistently"), cert. denied, 
    503 U.S. 970
    112 S. Ct. 1584
    118 L. Ed. 2d 304
    Congress's intent to preempt seemingly would not be "clear and
    manifest."      Furthermore,      although     separation    of    powers      (or
    institutional    competence)      concerns   might    counsel     in   favor    of
    courts' deferring to agencies in the resolution of ambiguous
    questions of statutory interpretation,11 countervailing federalism
    concerns offset this rationale for Chevron deference in preemption
    cases.       Although   federal     agencies    are   more      democratically
    accountable than courts, state legislatures are arguably yet more
    politically accountable.       In the abstract, then, it is not at all
    clear that a state's view that a federal statute does not preempt
    state law should give way to a federal agency's view that the
    statute does preempt.
         Fortunately, I need not completely untangle this knotty issue
    of jurisprudence in order to conclude that the FEC's interpretation
    of FECA is entitled to deference in this case.           In City of New York
          The Chevron Court articulated this rationale in passages
    such as this:
                   Judges are not experts in the field, and are not
              part of either political branch of the Government....
                   When a challenge to an agency construction of a
              statutory provision, fairly conceptualized, really
              centers on the wisdom of the agency's policy, rather
              than whether it is a reasonable choice within a gap
              left open by Congress, the challenge must fail. In
              such a case, federal judges—who have no
              constituency—have a duty to respect legitimate policy
              choices made by those who do. The responsibilities for
              assessing the wisdom of such policy choices and
              resolving the struggle between competing views of the
              public interest are not judicial ones: "Our
              Constitution vests such responsibilities in the
              political branches." TVA v. Hill, [
    437 U.S. 153
    , 195]
    98 S. Ct. 2279
    , 2302 [
    57 L. Ed. 2d 117
    ] (1978).
         467 U.S. at 866, 104 S.Ct. at 2793.
    v. FCC, a unanimous Court clarified the law sufficiently to settle
    the issue before us:
    [17, 18] It has long been recognized that many of the
    responsibilities conferred on federal agencies involve a broad
    grant of authority to reconcile conflicting policies. Where this
    is true, the Court has cautioned that even in the area of
    pre-emption, if the agency's choice to pre-empt "represents a
    reasonable accommodation of conflicting policies that were
    committed to the agency's care by the statute, we should not
    disturb it unless it appears from the statute or its legislative
    history that the accommodation is not one that Congress would have
    486 U.S. 57
    108 S. Ct. 1637
    , 1642, 
    100 L. Ed. 2d 48
     (1988) (quoting
    United States v. Shimer, 
    367 U.S. 374
    , 383, 
    81 S. Ct. 1554
    , 1560, 
    6 L. Ed. 2d 908
     (1961), and citing Capital Cities Cable, Inc. v. Crisp,
    467 U.S. 691
    , 698-700, 
    104 S. Ct. 2694
    , 2700, 
    81 L. Ed. 2d 580
    (1984)).   An agency like the FEC, to which Congress has delegated
    broad   discretion   in   interpreting   and   administering   a   complex
    federal regulatory regime, is entitled to significant latitude when
    acting within its statutory authority, even in its decisions as to
    the scope of preemption of state law.           See also Fidelity Fed.
    Savings & Loan Ass'n v. de la Cuesta, 
    458 U.S. 141
    , 151-55, 
    102 S. Ct. 3014
    , 3022-23, 
    73 L. Ed. 2d 664
     (1982). But cf. Louisiana Pub.
    Serv. Comm'n v. FCC, 
    476 U.S. 355
    106 S. Ct. 1890
    90 L. Ed. 2d 369
    (1986) (overturning agency preemption determination without mention
    of Chevron deference).     In other words, even if a statute is on its
    face ambiguous, Congress's intent to preempt may be clear when the
    administrative agency expressly responsible for interpreting and
    implementing the statute has clarified it.
         Finally, the State has failed to construct a compelling
    argument that the FEC's interpretation of the preemptive effect of
    FECA is unreasonable or inconsistent with Congressional intent. To
    the contrary, I find the FEC's interpretation persuasive and
    corroborative of my own (and the district court's) understanding of
    the scope of the FECA preemption provision.           Thus, even if the FECA
    preemption provision, read in light of the purposes and structure
    of the Act, is not adequately clear to preempt the Georgia statute
    expressly, FEC's interpretation of the statute settles the matter.
    I conclude that O.C.G.A. § 21-5-35, as applied to candidates for
    federal office, is preempted.        Thus, the district court correctly
    decided that Teper has a substantial likelihood of success on the
         The district court's grant of a preliminary injunction is
         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
    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.
           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,
          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").
          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.]
    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
          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
               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).
            was Chairman of the Committee of 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 5(B)(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
           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 (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
    111 S. Ct. 2456
    115 L. Ed. 2d 504
     (1991);     see also Redner v. Dean, 
    29 F.3d 1495
         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
    101 S. Ct. 2599
    69 L. Ed. 2d 357
    (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.