October 6, 1988
Mr. Keith Jensen
General Manager
South Dakota Press Association
P.O. Box 2230
Brookings, South Dakota 57007
Official Opinion No. 88-48
Election campaign disclaimers
Dear Mr. Jensen:
You have requested an opinion from this Office in regard to the following factual situation:
FACTS:
Due to a lack of specificity or definitions in the statutes dealing with political disclaimers, our newspapers are having difficulties dealing with disclaimers.
Based upon these facts, you have asked the following questions:
QUESTIONS:
1. An elected official plans to hold a series of public meetings with his constituents to discuss legislation and other issues. His travel and the advertisements in the newspaper notifying the public of the meetings are paid from his operating funds under Congressional rules. The ad carries the name of the elected official, the time and place of the meeting and invites the public to participate. Do the provisions of SDCL 12-25-4.1 require that a disclaimer be placed in this advertisement?
2. SDCL 12-25-4.1 is clear in that it covers candidates running for office, but it is not clear as to issue advertising. If an issue is on the ballot (referred or initiated), do the provisions of SDCL 12-25-4.1 require that a disclaimer be placed in such advertising?
3. Federal requirements on federal candidates (1979 amendments to the Federal Election Campaign Act), require only that the ad must state who or what organization paid for it and whether it was authorized by the candidate. Do the stricter provisions of SDCL 12‑25-4.1 (committee name, name of person, full address) apply to federal candidates?
The statute in question, SDCL 12-25-4.1, reads as follows:
All printed campaign literature and paid advertisements shall include a disclaimer with the full name, title and address of the person authorizing the literature or advertisement and the name, title and address of the person paying for such literature or advertisement if other than the person authorizing such literature and advertisement. If such person is acting on behalf of a committee, the name of such committee shall be included in the disclaimer. A violation of this section is a Class 2 misdemeanor.
IN RE QUESTION NO. 1:
The first sentence of the statute refers to "campaign literature and paid advertisements." The term "campaign" is not defined in SDCL 12‑1‑3 (the definition section for Title 12, the state election laws) or anywhere else in the Code. Consequently, according to SDCL 2-14-1, the term must be given its ordinary meaning and customary usage. In my view, "campaign" activities would be those activities directly related to an elected official's attempt to get reelected. Meetings with constituents to exchange views on legislation and issues, especially those financed with congressional approval from funds dedicated to that purpose, are not campaign activities in the ordinary sense of the term. I do not believe that SDCL 12-25-4.1 requires disclaimers to be placed in advertisements or notices for such meetings. The answer to Question No. 1 is "No."
IN RE QUESTION NO. 2:
SDCL 12-25-1 contains definitions for terms used throughout the "Campaign Financing" chapter. Subdivision (4) of that section defines a "political committee." It describes such an organization as comprised of two or more individuals engaged in a cooperative effort to raise, collect or disburse funds for various political purposes, including "the adoption or defeat of any question submitted to the voters of the whole state or any political division thereof, whether such committee represents a regular political party organization, the interest of some candidate or group of candidates, or the adoption or defeat of any such question."
In requiring that campaign literature and advertisements must include disclaimers, SDCL 12-25-4.1 further states, "If such person is acting on behalf of a committee, the name of such committee shall be included in the disclaimer." The "committee" is the same entity discussed above as a "political committee." Consequently, since such committee may be a group dedicated to "the adoption or defeat of any question submitted to the voters," such an organization is subject to the provisions of SDCL 12-25-4.1. The answer to Question No. 2 is "yes," a disclaimer is required in advertising and literature relating to initiated and referred measures, pursuant to the language of SDCL 12-25-4.1.
IN RE QUESTION NO. 3:
First, the fifty individual states are allowed to govern themselves and establish their own laws in most areas of government under the general concept of "states' rights." On the other hand, the "Supremacy Clause" found in Article 6 of the United States Constitution mandates that in a conflict between federal law and state law, the federal law controls. Further, the United States Congress may specifically override state law by "preempting" state law via federal legislation or by generally controlling the entirety of a legal area. Thus the Supremacy Clause operates when federal law inadvertently collides with state law, whereas preemption tends to be more of a specific, intended act or statement by Congress.
The United States Supreme Court affirmed these constitutional points in Hillsborough County v. Automated Med. Labs., 471 U.S. 707, 85 L.E.2d 714, 105 S.Ct. 2371. In that case, the court also discussed its "presumption that state and local regulation . . . can constitutionally coexist with federal regulation." Though usually the case, that is not the situation here.
At first, the Federal Election Campaign Act (P.L. 92-225) bowed to state law. Section 308(b) of the Act stated that "The supervisory officer [eventually codified as the comptroller general] shall encourage, and cooperate with, the election officials in the several States to develop procedures which will eliminate the necessity of multiple filings by permitting the filing of copies of Federal reports to satisfy the State requirements."
More important, § 403(a) of the Act read as follows:
Nothing in this Act shall be deemed to invalidate or make inapplicable any provision of any State law, except where compliance with such provision of law would result in a violation of a provision of this Act.
Congress clearly did not wish to preempt state law unless necessary.
Such was not the situation when the initial act was extensively amended in 1974. There, Congress clearly intended to dismantle previously-granted state authority. The amendments' (P.L. 93-443) legislative history, as covered in the U.S. Code Congressional Administrative News, discusses the House amendment (later adopted by both Houses) to the section noted above dealing with federal- state cooperation. The official history states, "Section 205(b) of the House amendment amended section 308 of Act (sic) by striking out subsection (b), which required the supervisory officer to develop procedures in cooperation with State election officials to permit filing of Federal reports to comply with State requirements." Thus, states' rights in this area began to erode.
Congress made its intention even more clear in its amendment to § 403, the federal statute that formerly maintained state authority. The appropriate section of the 1974 rewrite states:
Sec. 301. Section 403 of the Federal Election Campaign Act of 1971, relating to effect on State law, is amended to read as follows:
Sec. 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.'
The impact on state election laws is clear.
Should anyone harbor any doubt regarding congressional intent in the latter amendment, the legislative history (again as officially stated in the U.S. Code Congressional and Administrative Laws) removes that doubt. It says:
The conference substitute follows the House amendment. It 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 of elections.
Nothing more need be said.
As noted above, no matter how artfully constructed or how complimentary to federal law state law is, it is absolutely nullified by clear congressional preemption. The answer to Question No. 3. is "No," the more stringent provisions of SDCL 12-25-4.1 do not apply to federal candidates.
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
