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Teper v. Miller

April 24, 1996

DOUG TEPER, LOUIS FEINGOLD, ALAN ULMAN, PLAINTIFFS-APPELLEES,
v.
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.



Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:96-CV-9-WBH. DISTRICT JUDGE: Willis B. Hunt, Jr.

Before Kravitch and Carnes, Circuit Judges, and Hill, Senior Circuit Judge. Carnes, Circuit Judge, concurring. Hill, Senior Circuit Judge, dissenting.

Author: Kravitch

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.

I.

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.*fn1 Teper asserts that had he been barred from accepting 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 "the 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.*fn2 Consequently, the district court preliminarily enjoined enforcement of § 21-5-35 as it relates to federal elections.*fn3

II.

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 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, 507 U.S. 658, 113 S. Ct. 1732, 1737, 123 L. Ed. 2d 387 (1993); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S. Ct. 2608, 2617, 120 L. Ed. 2d 407 (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., 331 U.S. 218, 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, 97 S. Ct. 1305, 1309, 51 L. Ed. 2d 604 (1977).

The Supreme Court has identified three categories of preemption: (1) "express," where Congress "defines explicitly the extent to which its enactments pre-empt state law," English v. General Elec. Co., 496 U.S. 72, 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, 61 S. Ct. 399, 404, 85 L. Ed. 581 (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, 384 S.E.2d 863 (1989), cert. denied, 494 U.S. 1057, 108 L. Ed. 2d 765, 110 S. Ct. 1526 (1990).

Op. Att'y Gen. U95-27. The State similarly describes § 21-5-35 as "regulating 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. Valeo, 424 U.S. 1, 96 S. Ct. 612, 632, 46 L. Ed. 2d 659 (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.*fn4 Various FECA provisions detail the structure of political committees, impose reporting requirements, empower and design the FEC, place ...


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