# FILED
February 27, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE JOHN JAY HOOKER, ) ) Plaintiff/Appellant, ) ) VS. ) Davidson Chancery ) No. 96-3601-II SEN. FRED D. THOMPSON, ) ) Defendant/Appellee, ) ) Consolidated and ) Appeal No. ) 01-A-01-9709-CH-00533 JOHN JAY HOOKER, ) ) Plaintiff/Appellant, ) ) Davidson Chancery VS. ) No. 96-2847-III ) DON SUNDQUIST, ET AL., ) ) Defendants/Appellees. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE CAROL L. Mc COY, CHANCELLOR THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
JOHN JAY HOOKER 222 Polk Avenue Nashville, Tennessee 37203 Pro Se/Plaintiff/Appellant JOSEPH A. WOODRUFF K. SUZANNE CRENSHAW 511 Union Street, Suite 2100 Nashville, Tennessee 37219- 1760 Attorneys for Defendant/Appellee Sen. Fred D. Thompson JOHN KNOX WALKUP Attorney General and Repor ter JANET M. KLEINFELTER Assistant Attorney Gener al 425 5th Avenue North Nashville, Tennessee 37243-0496 Attorneys for Defendants/Appellees Don Sund quist, et al.

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. KOCH, J.- 2 - 

## O P I N I O N

The plaintiff, a candidate for the United States Se nate, f iled two actions in the Chancery Court of Dav idson County allegin g that giving or receiving

campaign contributions

violates state law . The court dismissed bothac ti on s. We agree that the lower courts properly dismissed pl aintiff’s claims, because the regulation of campaign financi ng for fe deral ele ctions is p reempte d by fede ral law.

I.

Mr. Hooker, a duly quali fied candidate for the United States Se nate, filed
an action on September 12, 1996 again st the Governor, the Secr etary of State, and the Attorney General, alleging that the other candi dates in the race were violating state law by receiving campaign contributions. In addition to se eking a d eclaration tha t a ccepting campaign contributions is illegal, the complaint sought a mandatory injunction requiring

the defendants to enforce the law. The chancellor consolidated the final hearing with the hearing on the temporary injunction, an d dismissed the
c omplaint because the Federal Election Campaign Act (FECA), 2 U.S.C. § 431, et seq., supers eded and preempted any provis ion of state law with respect to federal elections.

On November 14, 1996, Mr. Hooker filed another action against Fred D. Thompson, the successful candidate in the 1996 election, alleg ing that Mr. Thompson had accepted campaign contri bu tions from residents and non-re sidents of Tennessee in violation of state law. Mr. Hooke r sou ght a declaration that Mr. Thompson’s election was void . Mr. Thompso n mo ved to dism iss the complaint because the financing of federal elections is gov erned exclusively

by federal law and

because the
same issue had been dec ided adve rsely t o Mr. H ooker in two federal cases . The chancellor

dismissed the action wi thout giving

any specific reasons. We have limited the issue on appeal to the question of preemption.1 As where Cong ress ha s occu pied the field so perva sively that an inte nt to prevent state acti on may be inferred. See Teper v. Mil ler , 82 F.3d 989 (11th Cir. 1996).

- 3 - II. Federal Preemption

Article VI, § 1 of the United States Constituti on provides that federallaw is the “supreme law of the land; and the judgesin every sta te shall b e bound t hereby, anything in the Constitution or laws of any state to the contrary notwithstanding.” This provision renders ineffective any s tate law that conflicts or interferes with fede ral law. Cipollone

v. Liggett Group, Inc. , 505 U.S. 504 (1992). Federal law is a creature of the United States Congress, and it is congressional inte nt that det erm ines whether the states may also legislate in an area where Congress has spoken. Id. Although there
are other tests to decide doubtful cases, 1 the surest indication of congressional intent is an express provis ion thatthe states may not legis late in the area controlled bythe federal statute. See Weber v. Heaney , 995 F.2d 872 (8th Cir. 1993). When Congress has consider ed the issue of pre-emption and has included in the enacted leg islati on a provision explicitly addressi ng that issue, and when that pr ovision providesa reliable i ndicium of congressional i ntent with respec t to state authority, there is no need to in fe r congressiona l i ntent to pre-empt state law s from the substantive provisi ons of the legislation. Cipollone v. Liggett Group, Inc. , 505 U.S. 504 at 517 (1992).

Congress passed FECA in 1971. In the 1974 amendments to the Act, Congress included the following:“Provisions of this A ct, and of rules prescribed u nder this act, supersede

and preempt any provisi ons of State law with respect to Federal office.” As amended, the Act imposedlimits on contributions to candidatesfor federal offices and mandated reporting and disc losure of receipts anddisbursements by the candidates’ committees.

The Act also created the Federal Election Commission (FEC ) and vested it with

“primaryand substantial responsibi lity for administering and enforcing- 4 -

the act.” Buckley v. Valeo , 424 U.S. 1, at 109 (1976). Pursuant to its statutory powers the FEC issued the followi ng regulation:

(a) T he provisions of the Federal Election Campaign Act of 1971, as amended, and r ule s and regulations issued thereunder, supersede and preempt any provision of State law with respect to election to Federal o ffice. (b) Federal law supersedes State law concerning the -- (1) Or g anization and registration of polit ical committees supporting Federal candidates; (2) Disclosure of receipts and expenditures by Federal candidates and politi cal committees; and (3) Limitations on contributions an d expenditures

re g arding Federal candidates and political committees. (c) The Act does not supersede State laws which provides for the -- (1) M an ner

of qualifying as a candi date or political organiz

ation; (2) Dates and places of elections; (3) Voter registration; (4) Prohibiti on of false registration, voting fraud, theft of ballots and similar offenses; or (5) Candidate’s personal financial disclosure.

There could hardly be stronger support for the conclusion that Congress intended to reserve to itself the regulation of campaign financing for federal election s. If our conclusion in th is respect is correct, the state law provisions on which Mr. Hooker relies have been preempted. See Teper v. M iller , 82 F.3rd 989 (11th Cir. 1996); Bunning v. Commonwealth of Ky. , 42 F.3rd at 1008 (6th Cir. 1994); Weber v. Heaney , 995 F.2d 872 (8th Cir. 1993).

In op po sition, Mr. Hooker ar gues that other constituti onal provisions reserved to the states the power to regulate federal elections -- especial ly where the issue was not lim itation o f choice but expan sion of c hoice by ensuring f airness and honesty in the election process. He cites the 10th Amendm ent to the Constitution, which reserved to the statesall the powers not delegated to the federal government, and Article I, § 4, which provides:

The times, places and manne r of ho lding 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, ex

cept as to the places of choosing senators.2 On this poi nt we should be cl ear: it is not t he applicat ion of the state laws to fed eral el ections that Mr. Ho oker ins ists on, bu t his int erpretat ion of the stat e laws. Hi s interpr

etatio n being that

the state laws prohibi t the gi ving and receivi ng of campaign contri butions; that recei ving a campaign contrib ution is tantamount to accepting a br ibe. Si nce we have li mited this a ppeal to the i ssue of preemption, we do not express an opi nion as to Mr. Hooker’s int erpretat ion. - 5 - O n these two constitutional provisions, Mr. H ooker bases his argument tha t FEC A itself is unconstitutional if it is construed a s preempting the applicati on of the state laws on which he relies to federal elections. 2

Unfortu nately, none of the authorities cited by Mr. H ooker support his argument. In U.S. Term Limi ts, Inc. v. Thornton , 514 U.S. 779 (1995), the United States Supreme Court noted first the obv ious limitation on the states’ power to regulate the time, place, and manner of federal elections. That limitation is contained in Art. I, § 4 itself: “but the Congress may at any time by law make or alter such regulations, except as to the place s of ch oosing Senator s.” Citing The Federalist Papers , Nos. 57, 59 and 60 , the Court concluded that the grammar of the C onstitution had created a safeguard against the states’ abuse of the granted power by reserving to Congress its elf the power to make or alter regulations in the area of federal elections. Therefore, the Court struck d own a state law that di squalified a candidate for Congress simply because he had already served three terms in Congress.

In Buckley v. Valeo , 424 U.S.1 (1976), the Supreme Court upheld the validity of FECA but stressed that ev en Congress could not proh ibit a candidate from raising money to effectively advocate the candidate’s vie w s. The Court upheld the limitationson how muc h one per son could contribu te to a can didate b ut struck down
a limitati on on how much a candi date could contribute to his or her own campaign. Rather than l imiting congressiona l power, Art. I, § 4 gave Congress the pow er to preempt state laws that r egulated the times and manner of federal elections.

The conclusi on must f ollow, therefore, that the 10th Amendment does
no t reserve to the states the power to regulate c ampaign financing for fede ra lelections. T hat powe r has specifically been assigned to Congress if it chooses to

exercise it. In this case it has.

At oral argument Mr. Hooker also contended that even if FECA preempted state laws as a general proposition, Congress had not occupied the field of out-of-state contributions. We fail to see, however, how FECA distinguishes one from the other. A

valid and legal contr

ibution allowedby FECA cannot be prohibi ted bystate law, just as such a contribution made illegal by FECA could not be made legal by state la w.

The judgment of the trial co urt is affirmed and the cause is r emanded for any further proceedings necessary. Tax the cos ts on appeal to the appellant.

________________________________ BEN H. CANTRELL, JUDGE
CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE