Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1976 No. 27 -
Attorney General Slade Gorton


RCW 42.17.030-42.17.120 and RCW 42.17.240 are inapplicable to candidates seeking election to United States Senate or House of Representatives because of the federal preemption contained in Public Law 93-443.

                                                                  - - - - - - - - - - - - -

                                                                    April 5, 1976

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

Dear Sir:

            By recent letter you have directed our attention to the Federal Election Campaign Act of 1971, as amended in 1974, and have asked for an opinion regarding the impact of this federal legislation upon so much of chapter 42.17 RCW (Initiative No. 276, as amended) as purports to apply to campaigns for, or candidates seeking election to, the United States Senate or House of Representatives.

            In our opinion, for the reasons set forth below, the effect of the federal legislation to which you have referred has been to render those portions of chapter 42.17 RCW inapplicable to such campaigns or candidates.


            Chapter 42.17 RCW, commonly known as the public disclosure law, originated through the passage of Initiative No. 276 at the 1972 state general election.  Two separate portions of this law apply to campaigns for elective office.  The first of these is a part of Chapter I of the initiative, now codified as RCW 42.17.030-42.17.120, which relates to campaign financing and requires periodic reports of contributions and expenditures.  The purported scope of this part of the law is set forth in RCW 42.17.030 as follows:

            "The provisions of this chapter relating to election campaigns shall apply in all election campaigns other than (a) for precinct committeeman; (b) for the president and vice president of the United States; and (c) for an office the constituency of which does not encompass a whole county and which contains less than five thousand registered voters as of the date of the most recent general election in such district."

             [[Orig. Op. Page 2]]

            Secondly, Chapter III of the initiative, now RCW 42.17.240, requires detailed reports of the financial affairs of both elected officials and of all candidates for

            ". . . anyfederal, state, county, city, town, school district, port district, special district, or other state political subdivision elective office."  (Emphasis supplied.)1/

             Thus, on the face of it, both of these parts of the state public disclosure law clearly apply to candidates for election to the United States Senate or House of Representatives and to the financial aspects of their campaigns.  Nevertheless, we are compelled by reason of the 1974 federal legislation to which you have referred in your letter, Public Law 93-443, to advise you that these state requirements have been superseded and preempted; therefore, neither the campaign financing nor the financial disclosure requirements of our state law may any longer be enforced with respect to campaigns for, or candidates seeking election to, those federal offices.

            Public Law 93-443 encompasses a series of 1974 amendments to the Federal Election Campaign Act of 1971.  Among those amendments is a new section, § 104, which provides that:

            "(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."

            Chapter 29 of Title 18 USC, to which reference is thus made, defines and covers various acts ofcriminal conduct involving federal election campaigns and related political activities.

             [[Orig. Op. Page 3]]

            On the other hand, the noncriminal regulatory provisions of the federal law, insofar as they relate to campaigns for election to Congress, are contained in 2 U.S.C. §§ 431-456.  However, a comparable preemption clause now applies there as well because of another section, § 301, of Public Law 93-443.  That section of the 1974 amendments altered the original language of § 403 of the 1971 federal act, codified as 2 U.S.C. § 453, so as to cause it now to read as follows:

            "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."

            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.

            In requesting our opinion regarding the impact of this federal legislation upon those sections of our state public disclosure law which pertain to campaign financing and financial disclosure by candidates for elective office, you have raised an issue regarding the constitutionality of a federal preemption of state laws relating to the election of United States Senators and Representatives.  Of course, as you will readily understand, this office could no more declare a federal law to be unconstitutional than it could a duly enacted statute of our own state, for in both instances, this is exclusively a judicial function to be performed by the courts in the course of actual litigation.  As long ago observed in AGO 1945-46 at p. 269 [[to John T. Welsh, Prosecuting Attorney, Pacific County on July 17, 1945]],

            ". . .  The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to  [[Orig. Op. Page 4]] give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."

            Over and above this policy consideration, however, we do not in any event believe that a successful challenge could be made to the constitutionality of either §§ 104 or 301 of the 1974 federal election law amendments with which you are here concerned.  Article I, § 4 of the United States Constitution appears to provide a clear basis for such preemptive legislation in accordance with the following language of that section:

            "The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof;but the congress may at any time by law make or alter such regulations, except as to the places of choosing senators.

            "The congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3rd day of January, unless they shall by law appoint a different day."  (Emphasis supplied.)

            InSmiley v. Holm, 285 U.S. 355, 76 L. ed. [[L.Ed.]]795, 52 S.C. 397 (1932), the United States Supreme Court, in addressing itself to the extent of congressional power under Article I, § 4, supra, said:

            ". . .  It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to 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; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. . . .  All this is comprised in the subject of 'times, places and manner of holding elections' and involves lawmaking in its essential features and most important aspect.

             [[Orig. Op. Page 5]]

            "This view is confirmed by the second clause of Article I, § 4, which provides that 'the Congress may at any time by law make or alter such regulations,' with the single exception stated.  The phrase 'such regulations' plainly refers to regulations of the same general character that the legislature of the State is authorized to prescribe with respect to congressional elections.  In exercising this power, the Congress may supplement these state regulations or may substitute its own. . . .  It 'has a general supervisory power over the whole subject.'"  (Citations omitted.)

            In concluding that the above described provisions of our state law are no longer applicable to campaigns for, or candidates seeking election to, the United States Senate or House of Representatives because of a federal preemption we should, however, make certain further points in closing.  Our answer to your question doesnot mean that candidates seeking election to those congressional offices are in any way immune from significant campaign financing regulations for, in 2 U.S.C. §§ 431-456, which are now applicable instead there will be found a set of reporting and disclosure requirements which, as a matter of substance, are quite comparable to those contained in so much of our public disclosure law as is codified in RCW 42.17.030-   In addition, 2 U.S.C. § 439 directs that a copy of each statement so required to be filed with the federal election commission be filed, as well, with the secretary of state and/or equivalent state officer of the appropriate state.  The term "appropriate state" is then defined to mean:

            ". . .

            "(2) for reports relating to expenditures and contributions in connection with the campaign for nomination for election, or election, of a candidate to the office of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, the State in which  [[Orig. Op. Page 6]] he seeks election."

            We note, on the other hand, that although a pertinent amendment is currently pending before Congress the federal law does not presently contain any financial disclosure requirements comparable to those set forth in our RCW 42.17.240, supra.  Nevertheless, we have included that statute among the ones which we deem to have been superseded and preempted by the 1974 federal election campaign act amendments with respect to candidates for Congress because, to the extent that RCW 42.17.240 applies to candidates seeking public office, it does impose a reporting requirement ". . . with respect to election to federal office. . ."3/

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

Very truly yours,

Attorney General

Deputy Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/RCW 42.17.020(25).

2/This part of the federal law, it should also be noted, was recently upheld on constitutional grounds by the United States Supreme Court in Buckley v. Valeo,     U.S.    , 46 L. ed. [[L.Ed.]]2d 659 (1976).

3/Conversely, to the extent that RCW 42.17.240 also applies to "Every elected official (except president, vice president, and precinct committeemen)" this statute will continue to apply to those candidates who succeed in being elected to the United States Senate or House of Representatives; those persons will thus have to file annual financial disclosure reports as "elected officials" even though they are no longer required to file such reports as candidates.  Also, of course, there is most certainly nothing in either the federal or state law to prevent even a candidate from voluntarily filing financial disclosure reports with the state public disclosure commission if he desires to do so.