APPLICABILITY OF INITIATIVE NO. 276 TO CANDIDATES FOR FEDERAL OFFICE(1)

ELECTIONS ‑- INITIATIVE NO. 276 ‑- CAMPAIGN FINANCING ‑- APPLICABILITY OF INITIATIVE NO. 276 TO CANDIDATES FOR FEDERAL OFFICE

Although it remains unclear that RCW 42.17.240 is now unenforceable with respect to candidates seeking election to the United States Senate or House of Representatives, in view of the legal opinion of federal counsel on this question the attorney general will, if requested, present the matter before the courts for adjudication; to the foregoing extent only, AGLO 1976 No. 27 [[to Graham E. Johnson, Administrator, Public Disclosure Commission on April 5, 1976 an Informal Opinion, AIR-76527]]is withdrawn.

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                                                                     July 8, 1976

Honorable Graham E. Johnson
Administrator,
Public Disclosure Commission
403 Evergreen Plaza
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1976 No. 44
                                                                                                                                                                        Modifying AGLO 1976 No. 27

Dear Sir:

            This is written in response to your recent request for our review and reconsideration of so much of AGLO 1976 No. 27 [[to Graham E. Johnson, Administrator, Public Disclosure Commission on April 5, 1976 an Informal Opinion, AIR-76527]], copy enclosed, as concluded that the requirements of RCW 42.17.2401/ are not now enforceable with respect to candidates seeking election to the United States Senate or House of Representatives.  We respond to this request in the manner set forth in the following analysis.

                                                                     ANALYSIS

            In AGLO 1976 No. 27 [[to Graham E. Johnson, Administrator, Public Disclosure Commission on April 5, 1976 an Informal Opinion, AIR-76527]], which was written to the public disclosure commission on April 5, 1976, we advised you that, in our opinion, the federal election campaign act of 1971, as amended in 1974 by Public Law 93-443, has preempted (and thus rendered unenforceable) both chapter I (RCW 42.17.030 ‑ 42.17.140) and chapter III (RCW 42.17.240) of the state public disclosure act, Initiative No. 276, insofar as the provisions of those two chapters of the act purport to apply to candidates seeking election to the United States Senate or House of Representatives.  We based this conclusion on the following two sections of the federal law in question:

            Section 104:

            "(a) The provisions of chapter 29 of title 18, United States Code, relating to elections and political activities, supersede and preempt any provision of State law with respect to election to Federal office.

            "(b) For purposes of this section, the terms 'election', 'Federal office', and 'State' have the meanings given them by section 591 of title 18, United States Code."

             [[Orig. Op. Page 2]]

            Section 403:

            "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."

            By reason of this federal statutory language we said, at page 3 of our prior opinion:

            "These two sections of Public Law 93-443 must in our judgment be taken to mean, in simplest terms, that henceforth, insofar as election campaigns for federal office are concerned, state laws such as RCW 42.17.030 ‑ 42.17.120 and RCW 42.17.240,supra, may no longer be deemed to be applicable even though, by their own terms, those state laws do purport to apply.  And, for the purposes of this premise, the term 'federal office' unquestionably includes the offices of the United States Senator or Representative.  See, 2 U.S.C.A. § 431(c) with respect to the state laws which have been preempted by § 301 of Public Law 93-443 and 18 U.S.C.A. § 591 in the case of those similarly preempted by § 104,supra."

            Since the issuance of AGLO 1976 No. 27, however, you have informed us that a contrary opinion has been expressed with respect to the RCW 42.17.240 financial disclosure question only by the Honorable John G. Murphy, Jr., General Counsel to the Federal Election Commission.  You have provided us with a copy of Mr. Murphy's opinion on this question, as contained in a letter to you bearing the date of June 4, 1976.  We herewith set forth the pertinent text of that opinion as follows:

            "It is true that 'to the extent that RCW 42.17.240 applies to candidates seeking public office, itdoes impose a reporting requirement ". . . with respect to election to Federal office . . ."' Washington Attorney General Opinion Letter 1976 No. 27, 6 (April 5, 1976).  However, the mere fact of a general identity in a state and federal statute does not mean the automatic invalidity of the state measure.  California v.Zook, 336 U.S. 725, 730 (1949).  'To hold that a state statute identical in purpose with a federal statute is invalid under the Supremacy Clause, we must be able to conclude that the purpose of the federal statute  [[Orig. Op. Page 3]] would to some extent be frustrated by the state statute.'  Colorado Anti-Discrimination Comm'n v. Continental Air Lines, 372 U.S. 714, 722 (1963).  Thus '[t]he test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives.'  Florida Lime and Avocado Growers Inc. v. Paul, 373 U.S. 132, 142 (1963).  The 'proper approach is to reconcile "the operation of both statutory schemes with one another rather than holding one completely ousted."'  Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 127 (1973).

            "Accordingly, it is necessary to examine the intent of 2 U.S.C. § 453 to determine whether the Act and RCW 42.17.240 may be reconciled and mutually enforced without frustrating or impairing the necessary federal supremacy over those election laws which are applicable to federal candidates.  It is clear that '[t]he Federal government has no power to control the power or authority of the state except as such power may have been expressly granted, or as may be necessary to maintain the acknowledged powers of the Federal government.'  Boeing Aircraft Co. v. Reconstruction Finance Corp., 25 Wash.2d 652, 171 P.2d 838, 842 (1946).  Thus, 'it will not be presumed that a Federal statute was intended to supersede the exercise of a given power by a State unless there is a clear manifestation of intention to do so, since the exercise of Federal supremacy will not lightly be presumed.'  Schwartz v. State of Texas, 344 U.S. 199, 202-203 (1952).

            "It is provided in 2 U.S.C. § 453 that '[t]he provisions of this Act, supersede and preempt any provision of State law with respect to election to Federal office.'  The scope of the congressional intent with regard to this section is stated in theHouse Report of the Committee on Conference on the Federal Election Campaign Act Amendments of 1974 (Report No. 93-1438, 93d Cong.,2d Sess., 100-101, 1974), where the Committee states that:

            "[i]t is clear that the 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  [[Orig. Op. Page 4]] of elections.

            "Thus the disclosure provisions of the Act were intended to only occupy the field with respect to the reporting of contributions and expenditures; the provisions were not intended to preempt the disclosure of personal financial information which a State may otherwise require from a federal candidate.  Further support for the view that the Act is not intended to preempt all other disclosure obligations of federal candidates may be found in the House of Representatives continued use of Rule XLIV (Jefferson's Manual and Rules of the House of Representatives, H. Doc. No. 416, 93d Cong.,2d Sess., § 940 (1975)), which provides for financial disclosure by Members (who also may be candidates at that time), and in the legislation before Congress to require candidates for federal office to file statements with respect to their income and financial transactions (H.R. 3249, 94th Cong., 1st Sess. (1975); H.R. 11961, 94th Cong.,2d Sess. (1976)).

            "Accordingly, it is my view that RCW 42.17.240 has not been preempted since the Act and RCW 42.17.240 represent regulatory efforts with distinctly different purposes, and RCW 42.17.240 neither impairs nor frustrates the necessary federal supremacy over the field of federal elections."

            Apparently the distinction which Mr. Murphy has drawn between chapters I and III of our state public disclosure law (Initiative No. 276) is that the former deals with a subject which is also specifically covered by the federal act ‑ i.e., the regulation and reporting of campaign contributions and expenditures ‑ while the latter (RCW 42.17.240), insofar as it requires reports by candidates of their own personal financial affairs and activities, does not.2/   In other words, it is Mr. Murphy's position that the federal election campaign act, notwithstanding the broad preemptive language of §§ 104 and 403 of Public Law 93-443,supra, only preempts (and thereby  [[Orig. Op. Page 5]] renders unenforceable) those state statutes relating to congressional candidates which have specific counterparts in the federal act itself.

            We do not, as a matter of our own independent evaluation of the intent of Congress, totally agree with Mr. Murphy's reasoning and conclusion.  It seems to us, for example, that distinction made in the excerpt from House Report No. 93-1438 upon which Mr. Murphy relies is between campaign financing disclosure requirements, on the one hand, and state election provisions regarding the filing of declarations of candidacy, etc., on the other;3/ and it would appear to us that a personal financial disclosure requirement such as is contained in our RCW 42.17.240 is more akin to the former than the latter.  Nevertheless, we must concede that as long as the federal act continues to contain no specific counterpart to that section of our disclosure act Mr. Murhpy's reasoning and argument can by no means be wholly discounted.

            Moreover, there is another factor here to be considered.  Just as it is primarily within the province of this office to construe, and advise as to the meaning of, the various statutes of our own state (including the public disclosure act) it is, likewise, a primary responsibility of legal counsel for the federal agency involved to interpret, and similarly advise as to the meaning of, federal legislation.  Thus in the instant case we should properly give the same deference to Mr. Murphy's opinion regarding the scope and extent of the federal preemption resulting from §§ 104 and 403 of Public Law 93-443, supra, as we would expect legal counsel for a federal agency to give to an opinion of this office dealing with the interpretation of a state statute.

            Where, then, does this leave us insofar as your present opinion request is concerned?  In making this request you have informed us that, as a matter of policy, the public disclosure commission strongly believes that the provisions of RCW 42.17.240 should still be viewed as applying to candidates for election to the federal Congress this fall if it is legally possible to do so.  If, as a result, the commission elects to place the question before the courts of our state it will thus be our duty to advocate the position which the federal lawyer here has taken with respect thereto ‑ on your behalf as statutory legal counsel for the commission (RCW 42.17.380(2)).  Therefore, while we still do not necessarily  [[Orig. Op. Page 6]] concur, fully, with the reasoning and conclusion of the Murphy opinion of June 4, 1976, supra, we believe that the proper course for us to take at this time, under the circumstances, is simply that of withdrawing our prior opinion, AGLO 1976 No. 27,supra, to the limited extent that it covers the issue of whether financial disclosure reports under RCW 42.17.240 are now required of congressional candidates.

            In its place with respect to that issue we hereby advise you that if, after appropriate notice to all congressional candidates of its intent to require financial disclosure reports of them, as candidates, under RCW 42.17.240, the public disclosure commission is unable to obtain compliance in any given case this office will, if requested, bring the matter before the courts for adjudication.  At that time, should such action become necessary, we will most certainly present to the court all valid legal arguments which may be made in support of the commission's position.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General