New Hampshire Attorney General v. Bass Victory Committee

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2013-469
NEW HAMPSHIRE ATTORNEY GENERAL
v.
BASS VICTORY COMMITTEE
Argued: May 8, 2014
Opinion Issued: October 15, 2014
Joseph A. Foster, attorney general (Anne M. Edwards, associate attorney
general, and Brian W. Buonamano, attorney, on the brief, and Mr. Buonamano
orally), for the New Hampshire Attorney General.
Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and
Jason R.L. Major on the brief, and Mr. Douglas orally), for Bass Victory
Committee.
CONBOY, J. The New Hampshire Attorney General (AG) appeals an
order of the Superior Court (McNamara, J.) dismissing his petition for civil
penalties against the Bass Victory Committee (Committee), the authorized
campaign committee of former United States Congressman Charles F. Bass, for
allegedly violating RSA 664:16-a (2008) (amended 2014) by engaging in “push-
polling.” See RSA 664:21, VI (Supp. 2013). The AG argues that the trial court
erroneously determined that the Federal Election Campaign Act, 52 U.S.C.
§§ 30101 et seq. (FECA),* preempts RSA 664:16-a. We affirm.
I. Background
The following facts are drawn from the trial court’s order or are otherwise
undisputed on the record before us. In September 2010, the AG’s Office
received information regarding polling telephone calls made to New Hampshire
residents that were described as containing negative content about United
States congressional candidate Ann McLane Kuster. The AG investigated, and
concluded that the Committee had engaged in “push-polling” as defined in RSA
664:2, XVII (2008) (amended 2014) without complying with the disclosure
requirements set forth in RSA 664:16-a.
At the time of the AG’s investigation, RSA 664:2, XVII defined “‘push-
polling’” as:
(a) Calling voters on behalf of, in support of, or in opposition
to, any candidate for public office by telephone; and
(b) Asking questions related to opposing candidates for
public office which state, imply, or convey information about
the candidates[’] character, status, or political stance or
record; and
(c) Conducting such calling in a manner which is likely to be
construed by the voter to be a survey or poll to gather
statistical data for entities or organizations which are acting
independent of any particular political party, candidate, or
interest group.
RSA 664:16-a provided:
I. Any person who engages in push-polling, as defined in RSA
664:2, XVII, shall inform any person contacted that the telephone
call is being made on behalf of, in support of, or in opposition to a
particular candidate for public office, identify that candidate by
*
Effective September 1, 2014, the provisions of the FECA were transferred from Title 2 to Title 52 of the
United States Code. See Office of the Law Revision Counsel, United States Code, Editorial Reclassification
Title 52, United States Code, available at http://uscode.house.gov/editorialreclassification/t52/index.html. As
of the date of this opinion, the printed version of Title 52 is not available and, therefore, we have not included
dates in our citations to the FECA. Transfer of the printed version of the Code will be effective in supplement
II of the 2012 edition of the United States Code. See id.2
name, and provide a telephone number from where the push-
polling is conducted.
II. Any person or entity who violates paragraph I shall be
subject to penalty under RSA 664:21, V and VI.
According to the AG, the Committee violated RSA 664:16-a by asking
questions in the polling calls about Kuster that implied or conveyed negative
information about her character, status, political stance, or record in a manner
that was likely to be construed by voters as a survey or poll to gather statistical
data for an independent entity or organization without disclosing that the calls
were made on behalf of the Committee. As a result, the AG filed a petition in
Superior Court against the Committee, seeking statutory civil penalties
pursuant to RSA 664:21. After unsuccessfully attempting to remove the case
to federal court, the Committee moved to dismiss the AG’s petition on the
ground that RSA 664:16-a is preempted by the FECA. The Committee
contended that the FECA contains an express preemption provision that
demonstrates Congress’s “explicit intent to preempt state law with regard to the
entire field of election laws concerning campaigns for federal offices.” The
preemption provision states, subject to limitations not relevant here:
[T]he provisions of [the FECA], and of rules prescribed under [the
FECA], supersede and preempt any provision of State law with
respect to election to Federal office.
52 U.S.C. § 30143(a).
The Committee maintained that legislative history of the FECA
demonstrates Congress’s intent that the Act preempt state law with regard to
reporting and disclosing political contributions and expenditures by federal
candidates and political committees. The Committee also relied upon an
advisory opinion by the Federal Election Commission (FEC) that concluded that
RSA 664:16-a is preempted by the FECA because, if applied to candidates for
federal office who want to pay for telephone surveys, as defined in RSA 664:2,
XVII, the statute would impose additional disclosures as to those expenditures.
See F.E.C. Adv. Op. 2012-10, 2012 WL 1529235, at *4 (F.E.C. Apr. 27, 2012).
Thus, the Committee argued that RSA 664:16-a “interferes with the intent of
Congress, by requiring a candidate for federal office to make disclosures
regarding election-related expenditures” and, therefore, is preempted.
The trial court ruled that the FECA preempts RSA 664:16, concluding
that “[p]ush-polling is a campaign expenditure because the campaign must
expend funds in order to conduct the activity.” The court ruled that, “[b]ecause
[the] FECA regulates the required disclosures associated with campaign
expenditures, and because RSA 664:16-a mandates disclosure associated with
3
a specific type of campaign expenditure, federal law preempts the state
statute.” The court therefore dismissed the AG’s petition, and this appeal
followed.
II. Standard of Review
The sole issue for our review is whether the trial court erred when it
ruled that RSA 664:16-a is preempted by the FECA because push-polling is a
campaign expenditure and the FECA regulates the required disclosures
associated with campaign expenditures. “Generally, when reviewing a trial
court’s ruling on a motion to dismiss, we consider whether the [plaintiff’s]
allegations are reasonably susceptible of a construction that would permit
recovery.” Gray v. Kelly, 161 N.H. 160, 164 (2010) (quotation omitted).
Because the trial court’s determination of federal preemption is a matter of law,
our review is de novo. See Appeal of Bretton Woods Tel. Co., 164 N.H. 379,
387 (2012); Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, 770 (2005).
We also review the trial court’s statutory interpretation de novo. Pelkey
v. Dan’s City Used Cars, 163 N.H. 483, 487 (2012), aff’d, 133 S. Ct. 1769(2013). The meaning of the FECA is a question of federal law, and we,
therefore, interpret it in accordance with federal policy and precedent. Cf. id.When interpreting a statute, we first look to the language of the statute itself,
and, if possible, construe that language according to its plain and ordinary
meaning. Id. We do not read words or phrases in isolation, but in the context
of the entire statutory scheme. Id.III. Federal Preemption Principles
We begin by reviewing the general principles of federal preemption. The
federal preemption doctrine is based upon the Supremacy Clause in Article VI
of the United States Constitution. See Arizona v. United States, 132 S. Ct.
2492, 2500 (2012); Appeal of Sinclair Machine Prod’s, Inc., 126 N.H. 822, 826
(1985). Article VI provides that federal law “shall be the supreme law of the
land; and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any state to the contrary notwithstanding.” U.S.
CONST. art. VI, cl. 2. “Under this principle, Congress has the power to
preempt state law.” Arizona, 132 S. Ct. at 2500. “Consideration of issues
arising under the Supremacy Clause starts with the assumption that the
historic police powers of the States are not to be superseded by Federal Act
unless that is the clear and manifest purpose of Congress.” Cipollone v. Liggett
Group, Inc., 505 U.S. 504, 516 (1992) (quotation, brackets and ellipsis
omitted). “Accordingly, the purpose of Congress is the ultimate touchstone of
pre-emption analysis.” Id. (quotation and brackets omitted).
4
To that end, courts look to the language of the pre-emption statute
and the statutory framework surrounding it as well as the
structure and purpose of the statute as a whole, as revealed not
only in the text, but through the reviewing court’s reasoned
understanding of the way in which Congress intended the statute
and its surrounding regulatory scheme to affect interested parties.
Janvey v. Democratic Senatorial Campaign Committee, 793 F. Supp. 2d 825,
838 (N.D. Tex. 2011) (quotations omitted), aff’d, 712 F.3d 185 (5th Cir. 2013).
“Congress’ intent may be explicitly stated in the statute’s language or
implicitly contained in its structure and purpose.” Cipollone, 505 U.S. at 516(quotation omitted). “Explicit statutory or regulatory language provides the
clearest expression of preemptive intent.” Janvey, 793 F. Supp. 2d at 838.
“When Congress has spoken expressly . . . the preemptive scope of a
federal law is governed entirely by the express language.” Weber v. Heaney,
995 F.2d 872, 875 (8th Cir. 1993). As the Supreme Court explained in
Cipollone:
When Congress has considered the issue of pre-emption and has
included in the enacted legislation a provision explicitly addressing
that issue, 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 (quotations and citation omitted).
Since “[p]reemption of any type fundamentally is a question of
congressional intent,” Teper v. Miller, 82 F.3d 989, 993 (11th Cir. 1996)
(quotation omitted), our preemption analysis begins with the source of the
alleged preemption. See DerGazarian v. Dow Chemical Co., 836 F. Supp. 1429,
1431 (W.D. Ark. 1993). We, therefore, turn to an examination of the relevant
sections of the FECA.
IV. The FECA
Originally enacted in 1971, the FECA sets forth “an intricate federal
statutory scheme governing campaign contributions and expenditures related
to federal elections.” Teper, 82 F.3d at 994; see Weber, 995 F.2d at 875. Its
“primary purpose . . . is to regulate campaign contributions and expenditures
in order to eliminate pernicious influence — actual or perceived — over
candidates by those who contribute large sums” of money. Karl Rove & Co. v.
Thornburgh, 39 F.3d 1273, 1281 (5th Cir. 1994). To this end, “[t]he FECA
5
imposes limits and restrictions on contributions; provides for the formation
and registration of political committees; and mandates reporting and disclosure
of receipts and disbursements made by such committees.” Bunning v. Com. of
Ky., 42 F.3d 1008, 1011 (6th Cir. 1994) (referring to provisions in the FECA
dealing with the organization, registration, and reporting requirements for
political committees). The FECA defines “[t]he term ‘expenditure’” to include
“any purchase, payment, distribution, loan, advance, deposit, or gift of money
or anything of value, made by any person for the purpose of influencing any
election for Federal office.” 52 U.S.C. § 30101(9)(A)(i).
“The FECA also created the [FEC], which is empowered with the
administration and enforcement of the Act.” Bunning, 42 F.3d at 1011.
“Congress delegated the FEC extensive rulemaking and adjudicative powers
and authorized it to prescribe rules and regulations to carry out the provisions
of [the] FECA.” Weber, 995 F.2d at 875 (quotation and citation omitted). “The
FEC also is empowered to give advisory opinions when requested.” Id.; see 52
U.S.C. §§ 30107(a)(7), 30108.
The critical language in the preemption provision states that the FECA
shall “preempt any provision of State law with respect to election to Federal
office.” 52 U.S.C. § 30143(a). “While at first blush, [the preemption provision]
appears to have an exceedingly broad scope, courts have not interpreted [it] in
that manner.” Krikorian v. Ohio Elections Comm’n, No. 1:10CV103, 2010 WL
4117556, at *10 (S.D. Ohio Oct. 19, 2010). “Rather, courts have recognized
that [the provision] is ambiguous and have given [it] a narrow preemptive effect
in light of its legislative history.” Id. (quotations omitted); see Karl Rove & Co.,
39 F.3d at 1280; Weber, 995 F.2d at 875.
To determine whether the scope of the preemption provision is broad
enough to preclude enforcement of RSA 664:16-a against federal candidates
and political committees, we must “identify the domain expressly [preempted].”
Bunning, 42 F.3d at 1011 (quotation omitted); see Cipollone, 505 U.S. at 517.
Because the preemption provision is ambiguous, we look to its legislative
history. See ATV Watch v. N.H. Dep’t of Resources & Econ. Dev., 155 N.H.
434, 437 (2007).
The preemption provision, enacted in 1974, “replaced a prior version [of
the statute] which expressly saved state laws from preemption, except where
compliance with state law would result in a violation of the FECA, or would
prohibit conduct permitted by the FECA.” Bunning, 42 F.3d at 1012. “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.’” Teper, 82 F.3d at 994 (quoting H.R. Rep. No.
1239, at 10 (1974)). Significantly, the legislative history reveals that Congress
6
intended “Federal law [to] occup[y] the field with respect to reporting and
disclosure of political contributions to and expenditures by Federal candidates
and political committees.” S. Rep. No. 93-1237 (1974) (Conf. Rep.), reprinted in
1974 U.S.C.C.A.N. 5587, 5668 (emphasis added).
The preemption provision “incorporates by reference ‘rules prescribed
under’ [the] FECA,” and, pursuant to its authority, “[t]he FEC has issued a
regulation interpreting the scope of [this provision] in accordance with the
statute’s plain language and its legislative history.” Krikorian, 2010 WL
4117556, at *11; see 11 C.F.R. § 108.7 (2014). That regulation provides:
(a) The provisions of the Federal Election Campaign Act of
1971, as amended, and rules and regulations issued thereunder,
supersede and preempt any provision of State law with respect to
election to Federal office.
(b) Federal law supersedes State law concerning the —
(1) Organization and registration of political committees
supporting Federal candidates;
(2) Disclosure of receipts and expenditures by Federal
candidates and political committees; and
(3) Limitation on contributions and expenditures regarding
Federal candidates and political committees.
(c) The Act does not supersede State laws which provide for
the —
(1) Manner of qualifying as a candidate or political party
organization;
(2) Dates and places of elections;
(3) Voter registration;
(4) Prohibition of false registration, voting fraud, theft of
ballots, and similar offenses;
(5) Candidate’s personal financial disclosure; or
(6) Application of State law to the funds used for the
purchase or construction of a State or local party office building to
the extent described in 11 CFR 300.35.
7
11 C.F.R. § 108.7. Thus, our examination of the language of the preemption
provision itself and its interpretative regulation, along with the legislative
history of the FECA, demonstrates that the FECA preempts laws related to
federal campaign expenditures and disclosure of such expenditures.
V. Application of the Preemption Provision to RSA 664:16-a
The AG argues that the FECA does not preempt RSA 664:16-a because
the FECA governs campaign expenditures and “RSA 664:16-a constitutes a
disclaimer requirement, not a statute regarding campaign expenditures.” The
Committee disagrees, contending that RSA 664:16-a is preempted by the FECA
to the extent it applies to disclosures of campaign expenditures by federal
candidates and political committees because “[d]isclosures concerning the
financing or control of polling efforts like those at issue in this case are not
among the narrow categories of legitimate state regulation that escape the
ambit of” the preemption provision. Although we recognize that there is a
“strong presumption against pre-emption,” Cipollone, 505 U.S. at 523, and that
“courts have given [the preemption provision] a narrow preemptive effect in
light of its legislative history,” Karl Rove & Co., 39 F.3d at 1280 (quotation
omitted), we nonetheless conclude that RSA 664:16-a, as applied to election to
federal office, falls within the scope of the preemption provision.
On its face, RSA 664:16-a does not fit neatly within the ambit of any of
the areas specifically preempted or excepted in 11 C.F.R. § 108.7. Indeed, RSA
664:16-a “is intended to insure that the public is fully informed when
candidates engage in push-polling” by requiring “candidates [to] be fully
accountable for the statements and messages generated by their campaigns.”
Laws 1998, 12:1. The statute’s aim, therefore, is to prevent the “adverse
impact on the political process” caused by anonymous push-polling. Id.“Nonetheless, it is the effect of the state law that matters in determining
preemption, not its intent or purpose.” Teper, 82 F.3d at 995. “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.” Id.
Here, the version of RSA 664:16-a in effect at the time the AG brought
this action required the Committee to disclose that the telephone calls were
“being made on behalf of, in support of, or in opposition to a particular
candidate for public office, identify that candidate by name, and provide a
telephone number from where the push-polling is conducted.” RSA 664:16-a,
I. The effect of requiring such disclaimers is to reveal the identity of the
sponsor of the telephone calls, i.e., to disclose who is paying for the calls. In
this way, RSA 664:16-a imposes a disclosure requirement on campaign
expenditures related to the election of a candidate for federal office.
8
The AG argues that RSA 664:16-a “does not directly limit campaign
spending in the area of telephone surveys” and that, “[w]hile undoubtedly it is
true that funds are expended to conduct polls, this does not support or suggest
the conclusion that requiring a disclaimer be included in the script of a poll
limits the amount of money that can be spent on polling activity.” (Emphasis
added.) The AG’s argument, however, addresses only a part of the domain
regulated by the FECA. The FECA not only preempts laws that regulate limits
on campaign expenditures by federal political committees, but also those that
regulate “[d]isclosure of . . . expenditures by . . . political committees.” 11
C.F.R. § 108.7(b)(2) (emphasis added). Indeed, our discussion of the FECA’s
legislative history above makes clear that Congress intended the FECA to
occupy “the field with respect to . . . disclosure of political contributions to and
expenditures by Federal candidates and political committees.” S. Rep. No.
1237 (Conf. Rep.). Moreover, the title of subchapter one of the FECA is entitled
“Disclosure of Federal Campaign Funds.” See Bourne v. Sullivan, 104 N.H.
348, 352-53 (1962) (title of act not conclusive, but significant when considered
in connection with legislative history). The logical effect of the requirements in
RSA 664:16-a is to require disclosure of expenditures. Accordingly, we
conclude that RSA 664:16-a, as applied to a federal candidate or political
committee, is preempted by the FECA.
We note that our conclusion is in accord with the FEC advisory opinion
addressing the precise issue here. See F.E.C. Adv. Op. 2012-10, 2012 WL
1529235, at *2; see also 52 U.S.C. § 30108(C). The FEC concluded that RSA
664:16-a, I, is preempted by the FECA and the FEC’s regulations “with respect
to the proposed telephone surveys made on behalf of Federal candidates, their
authorized committees, or other Federal political committees that refer only to
candidates for Federal office.” Id. According to the FEC:
The legislative history of the [FECA] makes clear that Congress
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. . . . Federal law occupies the field with
respect to reporting and disclosure of political contributions to,
and expenditures by, Federal candidates and political committees,
but does not affect State laws as to the manner of qualifying as a
candidate, or the dates and places of elections.
....
Here, [RSA 664:16-a], if applied to Federal candidates who wish
to pay for the telephone surveys described in the request, would
impose an additional disclaimer requirement on those
9
expenditures. Under the Act’s preemption clause, only Federal law
may require disclosure regarding expenditures by Federal
candidates.
Id. at *2, 4 (quotation omitted).
We recognize that our decision prevents the AG from enforcing RSA
664:16-a against a federal candidate or committee. Nor can the AG bring a
private action against a federal candidate or committee under the FECA. See
52 U.S.C. §§ 30106(b)(1), 30107(e), 30109. Nonetheless, the absence of a
direct cause of action alone is no bar to preemption if, as in this case, Congress
has manifested a clear intention to preempt certain state law causes of action.
Cf. Pelkey, 163 N.H. at 496 (noting that absence of any federal remedy for
private injuries of the kind allegedly suffered supported conclusion that federal
law did not preempt state law). Moreover, although the AG cannot bring an
action under RSA 664:16-a because the FEC has “exclusive jurisdiction over
enforcing” the provisions of the FECA, Kean for Congress Committee v. Federal
Election, 398 F. Supp. 2d 26, 28 (D.D.C. 2005); see 52 U.S.C. § 30106(b)(1), we
note that the FECA “permits ‘any person’ to file a signed, sworn administrative
complaint with the FEC alleging a violation of [the] FECA.” Kean, 398 F. Supp.
2d at 28-29; see 52 U.S.C. § 30109(a)(1).
Citing the exceptions to preemption in 11 C.F.R. § 108.7(c), the AG
maintains that “[f]ederal regulations establish that a state may regulate federal
campaigns directly and specifically, even if it regulates activities that are paid
for by the campaign.” To the extent that the exceptions in section 108.7(c)
“regulate federal campaigns directly and specifically,” however, those
exceptions are grounded in the constitutional authority granted to States to
regulate broad election matters related to the voting process itself — matters
unrelated to campaign expenditures. See Cook v. Gralike, 531 U.S. 510, 523
(2001).
The United States Supreme Court has explained that States have no
inherent authority to regulate elections to federal office. See U.S. Term Limits,
Inc. v. Thornton, 514 U.S. 779, 804, 833-34 (1995). Rather, “powers over the
election of federal officers had to be delegated to, rather than reserved by, the
States.” Id. The Elections Clause to the United States Constitution delegated
to the States the power to regulate the “times, places and manner of holding
elections for Senators and representatives.” U.S. CONST. art. I, § 4. The
Supreme Court has construed this clause to grant states “‘broad power’ to
prescribe the procedural mechanisms for holding congressional elections.”
Cook, 531 U.S. at 523. These procedural mechanisms encompass “matters
like notices, registration, supervision of voting, protection of voters, prevention
of fraud and corrupt practices, counting of votes, duties of inspectors and
canvassers, and making and publication of election returns.” Id. at 523-24
10
(quotation omitted). Thus, the exceptions in section 108.7(c) “merely
acknowledge a long-standing constitutional dichotomy concerning which
aspects of federal elections the states may regulate.” Dewald v. Wriggelsworth,
748 F.3d 295, 308 (6th Cir. 2014) (Cole, J., dissenting).
The AG also cites the FEC’s decision in In the Matter of Democratic
Congressional Campaign Committee to argue that “the FEC has explicitly
found that polling activities are not subject to [the] FECA’s disclaimer
requirements.” See In the Matter of Democratic Congressional Campaign
Committee & a., MUR 5835 (F.E.C. July 1, 2009), available at
http://eqs.fec.gov/eqsdocs/29044244624.pdf. In that decision, the FEC
determined that survey research (referred to as “polls”) conducted over the
telephone on behalf of a political committee does not require disclaimers under
the FECA. Id. at 1, 4. That decision, however, examined the reach of former 2
U.S.C. § 441d (2012), now reclassified as 52 U.S.C. § 30120, dealing with the
publication and distribution of statements and solicitations, a provision of the
FECA not at issue in this case. Moreover, the FEC distinguished the polls at
issue in that case, which it referred to as “legitimate forms of survey research,”
from the push-polls alleged to have occurred in this case, which the FEC
described as “a survey instrument containing questions which attempt to
change the opinion of contacted voters, generally by divulging negative
information about the candidate which is designed to push the voter away from
him or her and pull the voter toward the candidate paying for the polling.” Id.
at 10 (quotation omitted). Since the FEC addressed only the disclaimer
requirements for the former type of polls, we decline to find its decision
applicable in this case.
The AG further contends that our determination in this case “must be
made by reference to [the] FECA’s own expenditure regulations and whether
consideration of RSA 664:16-a duplicates . . . those expenditure regulations.”
We disagree. “Nothing in the language of” the preemption provision “suggests
that [the] FECA’s pre-emption is limited to inconsistent state regulation.”
Weber, 995 F.2d at 876 n.4 (quotations omitted). “Thus, supplemental and
consistent state regulation is preempted as well.” Id.Nor are we persuaded by the AG’s argument that if RSA 664:16-a is
preempted by the FECA, then “virtually all state statutes that in any way
involve expenditures by a campaign committee would be preempted.” Our task
here is to determine whether RSA 664:16-a requires disclosure of campaign
expenditures such that it falls within the boundaries of the preemption
provision. We have concluded that it does. Whether other statutes involve
campaign expenditures so as to be similarly preempted does not control our
analysis, and we express no opinion with respect to the preemption of any
other state statutes.
11
The AG cites several cases from other jurisdictions in which courts have
not found preemption “[e]ven where state regulations deal with the transfer of
funds or involve transactions that could, in theory, affect expenditures.” See
Janvey v. Democratic Senatorial Campaign Committee, 712 F.3d 185 (5th Cir.
2013); Karl Rove & Co., 39 F.3d 1273; Stern v. General Elec. Co., 924 F.2d 472(2d Cir. 1991); United States v. Trie, 21 F. Supp. 2d 7 (D.D.C. 1998); State v.
Jude, 554 N.W.2d 750 (Minn. Ct. App. 1996). However, these cases are
inapposite because they pertain to state laws that did not regulate
expenditures or disclosure of expenditures related to election to federal office.
For instance, Janvey involved a suit brought under the Texas Uniform
Fraudulent Transfer Act (TUFTA) against several national political committees
to recover certain political contributions made to the committees alleged to be
made as fraudulent conveyances. Janvey, 712 F.3d at 189. In that case, the
Fifth Circuit Court of Appeals concluded that the claim brought under the
TUFTA was not preempted by the FECA because the “TUFTA is a general state
law that happen[ed] to apply to [the] federal political committees in [that] case.”
Id. at 200. Similarly, in Karl Rove & Company, the Fifth Circuit “rejected a
federal candidate’s argument that FECA preempted a company’s state law
cause of action against him for the debts of his campaign committee,” id.; see
Karl Rove & Co., 39 F.3d at 1280, finding that the preemption provision did not
“stretch . . . far enough to create a preemptive bar to applying state law to hold
federal candidates personally liable” for such debts. Karl Rove & Co., 39 F.3d
at 1280.
Likewise, in Stern, the Second Circuit Court of Appeals addressed
whether state law corporate waste claims based upon a corporation’s use of
funds to support federal political campaigns were preempted by the FECA.
Stern, 924 F.2d at 474. Noting that the preemption provision of the FECA
“relates only to state-law provisions with respect to election to Federal office,”
the court explained that “[t]he narrow wording of this provision suggests that
Congress did not intend to preempt state regulation with respect to non-
election-related activities.” Id. at 475 (quotation omitted). The court concluded
that the FECA did not “preclude New York from pursuing its independent
interest in ensuring that corporate directors exercise sound judgment in the
expenditure of corporate funds,” and that the state law corporate waste claims
were not preempted. Id. The courts in other cases cited by the AG reached
similar conclusions. See also Trie, 21 F. Supp. 2d at 18-19 (denying
defendant’s motion to dismiss certain counts in indictment brought under
general felony statute on preemption grounds because Congress did not
express any intent that misdemeanor sanctions of FECA to be a substitute for
all other possible criminal sanctions); Jude, 554 N.W.2d at 753, 752 (finding
that FECA does not preempt state law prohibiting “false campaign
advertisements, and other false statements in the course of a campaign”
because law “merely prohibits certain nonfinancial campaign practices”).
12
Unlike the state laws examined in those cases, the effect of RSA 664:16-a is to
mandate a disclosure requirement upon campaign expenditures.
VI. Conclusion
In summary, we conclude that RSA 664:16-a imposes a disclosure
requirement on campaign expenditures related to the election of a candidate for
federal office. Accordingly, we hold that the FECA preempts RSA 664:16-a as
applied to federal candidates and political committees.
Affirmed.
DALIANIS, C.J., and HICKS, J., concurred.
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