Teper v. Miller ( 1996 )

  •                                                             PUBLISH
                        FOR THE ELEVENTH CIRCUIT
                               No. 96-8147
                      D.C. Docket No. 1:96-CV-9-WBH
    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,
    BRIAN FOSTER, in their official capacities as
    Members of the Georgia State Ethics Commission,
              Appeal from the United States District Court
                  for the Northern District of Georgia
                            (April 24, 1996)
    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
          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
    contributions for his federal 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
    mootness doctrine. See Norman v. Reed, 
    112 S. Ct. 698
    , 704-05
    (1992); First Nat'l Bank of Boston v. Bellotti, 
    98 S. Ct. 1407
    1414-15 (1978); Moore v. Ogilvie, 
    89 S. Ct. 1493
    , 1494 (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, 96 S.
    Ct. 347, 348 (1975) (per curiam); see also News-Journal Corp. v.
    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, 
    94 S. Ct. 1274
    , 1282-83 n.8 (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.
    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 elections.3
         The sole issue on appeal is whether Teper has a substantial
          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.
          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.
    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, 
    112 S. Ct. 1245
     (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 Cir. 1995).
         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, 
    113 S. Ct. 1732
    , 1737 (1993);
    Cipollone v. Liggett Group, Inc., 
    112 S. Ct. 2608
    , 2617 (1992).
    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., 
    67 S. Ct. 1146
    , 1152
    (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.,
    97 S. Ct. 1305
    , 1309 (1977).
         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., 
    110 S. Ct. 2270
    , 2275 (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, 61 S.
    Ct. 399, 404 (1941).   See English, 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
     (1989), cert. denied, 
    494 U.S. 1057
    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 session.
         Nor does anyone dispute the well established "constitutional
    power of Congress to regulate federal elections."    Buckley v.
    96 S. Ct. 612
    , 632 (1976).     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.N. (86 Stat.) 23 (amended by Federal Election
    Campaign Act Amendments of 1974, Pub. L. No. 93-443, 1974
          In Buckley, 
    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.
    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, 112 S. Ct. at 2616
    (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
          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.
    impropriety--bribery, to be precise--that may arise when state
    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 Waste
    Management Ass'n, 
    112 S. Ct. 2374
    , 2386-87 ("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, 
    108 S. Ct. 2302
    , 2306 (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, 
    82 S. Ct. 1089
    , 1092 (1962)); Napier v. Atlantic Coast Line R.R.
    47 S. Ct. 207
    , 209-10 (1926) (preemption depends not on
    whether federal and state laws "are aimed at distinct and
    different evils" but whether they "operate upon the same
            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
     (6th 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.
    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. Thornburgh, 
    39 F.3d 1273
    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
             Indeed, this is Judge Carnes's conclusion.
    contributions to federal political campaigns not preempted);
    Reeder v. Kansas City Bd. of Police Comm'rs, 
    733 F.2d 543
    Cir. 1984) (ban on political contributions by city police
    department employees not preempted).   I hesitate, however, to
    conclude summarily that the preemptive scope of § 453 is so
    unambiguous as to evince a "clear and manifest purpose of
    Congress," Rice, 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, 96 S. Ct. at 677-
    78; see also FEC v. Democratic Senatorial Campaign Comm., 102 S.
    Ct. 38, 45 (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
          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.
    concerning the application of FECA, 2 U.S.C. §§ 437d(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.
           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
         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
          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
    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.
    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 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."
          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,
          This formal opinion was issued in response to an inquiry by
    another, more persistent, member of the Georgia General Assembly
    running for Congress.
    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., 
    111 S. Ct. 2524
    , 2534 (1991).    This language
    reflects the general principle established in the landmark case
    of Chevron U.S.A., Inc. v. National Resources Defense Council,
    104 S. Ct. 2778
     (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 2782.
         The FEC, in particular, is "precisely the type of agency to
    which deference should presumptively be afforded."    FEC v.
    Democratic Senatorial Campaign Comm., 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. FEC, 
    842 F.2d 16
    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, 
    116 S. Ct. 689
     (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
          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.
         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, 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, 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
    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
    112 S. Ct. 1584
    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 v. FCC, a unanimous Court clarified the law
    sufficiently to settle the issue before us:
         It has long been recognized that many of the
          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.
    98 S. Ct. 2279
    , 2302 (1978).
    104 S. Ct. at 2793.
         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
    108 S. Ct. 1637
    , 1642 (1988) (quoting United States v. Shimer, 
    81 S. Ct. 1554
    , 1560 (1961), and citing Capital Cities Cable, Inc.
    v. Crisp, 
    104 S. Ct. 2694
    , 2700 (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
    102 S. Ct. 3014
    , 3022-23 (1982).   But cf. Louisiana Pub.
    Serv. Comm'n v. FCC, 
    106 S. Ct. 1890
     (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 merits.
         The district court's grant of a preliminary injunction is