PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 96-8147 

D.C. Docket No. 1:96-CV-9-WBH

DOUG TEPER, LOUIS FEINGOLD, ALAN ULMAN,

Plaintiffs-Appellees,

versus

ZELL MILLER, in his official capacity as

Governor of the State of Georgia, MICHAEL BOWERS,

in his official capacity as Attorney General of the 

State of Georgia, MAX CLELAND, in his official capacity

as Secretary of State of the State of Georgia,

STEVEN SCHEER, STEVEN WHITE, MICHAEL D. MCRAE,

BRIAN FOSTER, in their official capacities as 

Members of the Georgia State Ethics Commission,

Defendants-Appellants.

 

Appeal from the United States District Court

for the Northern District of Georgia

 

(April 24, 1996)

Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior

Circuit Judge.
 1

The General Assembly session ended after oral argument in

this case but before this opinion had issued. Adjournment of the

General Assembly session did not render the case moot, however. 

The Supreme Court has recognized that often in cases challenging

rules governing elections there is not sufficient time between

the filing of the complaint and the election to obtain judicial

resolution of the controversy before the election. Consequently,

the Court has allowed such challenges to proceed under the

"capable of repetition yet evading review" exception to the

2

KRAVITCH, Circuit Judge:

Officials of the State of Georgia appeal the grant of a

preliminary injunction against enforcement of O.C.G.A. § 21-5-35

to prohibit a member of the General Assembly from accepting

contributions for a campaign for federal office while the General

Assembly is in session. The court (Judge Hill dissenting)

affirms the district court's grant of the preliminary injunction,

concluding that the Georgia statute is preempted by the Federal

Election Campaign Act. 

I.

Doug Teper is a member of the Georgia General Assembly who

is contemplating a campaign for federal office; Teper's coplaintiffs are potential contributors to his federal campaign. 

As a member of the General Assembly, Teper is precluded by a

provision of the Georgia Ethics in Government Act, O.C.G.A. § 21-

5-35, from accepting campaign contributions during any

legislative session. The most recent session of the General

Assembly began on January 8, 1996, and ran through the beginning

of April.1 Teper asserts that had he been barred from accepting
mootness doctrine. See Norman v. Reed, 112 S. Ct. 698, 704-05

(1992); First Nat'l Bank of Boston v. Bellotti, 98 S. Ct. 1407,

1414-15 (1978); Moore v. Ogilvie, 89 S. Ct. 1493, 1494 (1969);

see also American Civil Liberties Union v. Florida Bar, 999 F.2d

1486, 1496-97 (11th Cir. 1993). 

This exception applies under two conditions: "(1) the

challenged action was in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there was

a reasonable expectation that the same complaining party would be

subject to the same action again." Weinstein v. Bradford, 96 S.

Ct. 347, 348 (1975) (per curiam); see also News-Journal Corp. v.

Foxman, 939 F.2d 1499, 1507 (11th Cir. 1991). Application of the

"capable of repetition yet avoiding review" exception is

particularly appropriate in cases like Teper's presenting "as

applied" challenges to state law, because "[t]he construction of

the statute, an understanding of its operation, and possible

constitutional limits on its application, will have the effect of

simplifying future challenges, thus increasing the likelihood

that timely filed cases can be adjudicated before an election is

held." Storer v. Brown, 94 S. Ct. 1274, 1282-83 n.8 (1974). 

Given that our decision in this expedited appeal has come too

late for the current legislative session, because Teper himself

certainly could desire to accept campaign contributions during a

future session, and in view of the importance of this issue and

its possible bearing on other similarly situated state elected

officeholders, this case is not mooted just because the General

Assembly recently has adjourned. 

3

contributions for his federal campaign until the end of the

session, he would have been seriously disadvantaged relative to

other federal candidates who are not state officials. Indeed, he

might have been faced with the dilemma of resigning from state

office or foregoing his federal campaign. 

Teper contends that § 21-5-35 is preempted by federal

campaign finance laws, which place no such prohibition on the

timing of campaign contributions. In particular, the Federal

Election Campaign Act ("FECA"), 2 U.S.C. § 431 et seq., includes

a preemption provision, which states that "[t]he provisions of

this Act, and of rules prescribed under this Act, supersede and
 2

In addition to the winning preemption claim, Teper argued

to the district court that enforcement of § 21-5-35 violated the

First Amendment and the Equal Protection Clause. The district

court did not reach these claims, and they are not before this

court on appeal.

 3

In order to warrant the grant of a preliminary injunction,

a plaintiff has the burden of proving four factors: (1) a

substantial likelihood of success on the merits; (2) a

substantial threat of irreparable injury in the injunction were

not granted; (3) that the threatened injury to the plaintiff

outweighs the harm an injunction may cause the defendant; and (4)

that granting the injunction would not disserve the public

interest. See, e.g., Church v. City of Huntsville, 30 F.3d 1332,

1342 (11th Cir. 1994). The district court found that Teper had

established the second, third, and fourth of these factors before

proceeding to focus on the first. 

4

preempt any provision of State law with respect to election to

Federal office." 2 U.S.C. § 453.

On January 2, 1996, Teper filed a motion in district court

requesting a preliminary injunction prohibiting Georgia state

officials ("the State") from enforcing § 21-5-35 as it applies to

candidates for federal office. The district court, after

concluding that Teper had standing to challenge the state

statute, determined that Teper had a substantial likelihood of

success on the merits of his claim that § 21-5-35 was preempted

by FECA and regulations promulgated by the Federal Election

Commission ("FEC") under the Act.2

 Consequently, the district 

court preliminarily enjoined enforcement of § 21-5-35 as it

relates to federal elections.3 

II.

The sole issue on appeal is whether Teper has a substantial
5

likelihood of success on the merits of his claim that O.C.G.A. §

21-5-35 is preempted by FECA and FEC regulations. The district

court, in granting Teper a preliminary injunction, concluded that

O.C.G.A. § 21-5-35, as applied to federal candidates, falls

within the scope of FECA's preemption provision. We review the

ultimate decision of whether to grant a preliminary injunction

for abuse of discretion, but we review de novo determinations of

law made by the district court en route. Haitian Refugee Ctr.,

Inc. v. Baker, 953 F.2d 1498, 1505 (11th Cir.), cert. denied, 112

S. Ct. 1245 (1992). The interpretation and application of a

federal statute raises an issue of law, subject to plenary

review. See, e.g., United States v. McLeod, 53 F.3d 322, 324

(11th Cir. 1995). 

Preemption doctrine is rooted in the Supremacy Clause and

grows from the premise that when state law conflicts or

interferes with federal law, state law must give way. See, e.g.,

CSX Transp., Inc. v. Easterwood, 113 S. Ct. 1732, 1737 (1993);

Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608, 2617 (1992). 

Federalism concerns counsel that state law should not be found

preempted unless that is "the clear and manifest purpose of

Congress." Rice v. Santa Fe Elevator Corp., 67 S. Ct. 1146, 1152

(1947). "Clear and manifest" does not necessarily mean

"express," however, and Congress's intent to preempt can be

implied from the structure and purpose of a statute even if it is

not unambiguously stated in the text. Jones v. Rath Packing Co.,
6

97 S. Ct. 1305, 1309 (1977). 

The Supreme Court has identified three categories of

preemption: (1) "express," where Congress "define[s] explicitly

the extent to which its enactments pre-empt state law," English

v. General Elec. Co., 110 S. Ct. 2270, 2275 (1990); (2) "field,"

in which Congress regulates a field so pervasively, or federal

law touches on a field implicating such a dominant federal

interest, that an intent for federal law to occupy the field

exclusively may be inferred; (3) "conflict," where state and

federal law actually conflict, so that it is impossible for a

party simultaneously to comply with both, or state law "stands as

an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress," Hines v. Davidowitz, 61 S.

Ct. 399, 404 (1941). See English, 110 S. Ct. at 2275. 

Preemption of any type "fundamentally is a question of

congressional intent." Id. 

In order to decide the preemptive effect of FECA on O.C.G.A.

§ 21-5-35, we must juxtapose the state and federal laws,

demarcate their respective scopes, and evaluate the extent to

which they are in tension.

O.C.G.A. § 21-5-35(a) provides, "No member of the General

Assembly or that member's campaign committee or a public officer

elected statewide or campaign committee of such public officer

shall accept a contribution during a legislative session." A

"contribution" is defined to include "a gift, subscription,
7

membership, loan, forgiveness of debt, advance or deposit of

money or anything of value conveyed or transferred for the

purpose of influencing the nomination for election or election of

any person for office." "Office" is understood to include

federal offices. 

The Attorney General of Georgia has described the purpose of

the statute as follows:

It is clear that the General Assembly intended O.C.G.A.

§ 21-5-35 to prevent even the appearance of impropriety

by its members or certain state officers in accepting

contributions during a period where legislation is

pending and there could be a perception that any

legislative action could be influenced by the giving of

a campaign contribution. This strong statement by the

General Assembly is consistent with its desire that

public officials not be influenced in the performance

of their duties by improper "political contributions." 

See O.C.G.A. § 16-10-2 (bribery prohibited); see also

State v. Agan, 259 Ga. 541 (1989), cert. denied, 494

U.S. 1057 (1990).

Op. Att'y Gen. U95-27. The State similarly describes § 21-5-35

as "regulat[ing] the actions of state officials in order to

preserve the public's faith in the integrity of the political 

system." Br. of Appellants at 10. No one disputes that § 21-5-

35 would have the effect of precluding members of the General

Assembly from accepting contributions for federal campaigns while

the Assembly is in session.

Nor does anyone dispute the well established "constitutional

power of Congress to regulate federal elections." Buckley v.

Valeo, 96 S. Ct. 612, 632 (1976). The Federal Election Campaign

Act of 1971 (as amended), 2 U.S.C. § 431 et seq., creates an
 4

In Buckley, 96 S. Ct. 612, the Supreme Court upheld FECA's

contribution limitations, record-keeping and disclosure

requirements, and provisions for public financing of Presidential

elections and conventions; however, the Court also held that

certain expenditure limitations under the Act were in violation

of the First Amendment and that the exercise of administrative

and enforcement powers delegated to the FEC was unconstitutional

because of the way the Committee members were appointed. FECA

was amended in 1976 to reconstitute the FEC to allow it to

exercise its full powers under the Act constitutionally. See

infra note 7. Otherwise, Buckley's effect on FECA is of no

consequence for the present case.

8

intricate federal statutory scheme governing campaign

contributions and expenditures related to federal elections.4

Various FECA provisions detail the structure of political

committees, impose reporting requirements, empower and design the

FEC, place limitations on the amounts of campaign contributions

and expenditures by individuals and corporations, and restrict

the use of such funds. 

FECA was amended in 1974 to include a preemption provision,

which states that "[t]he provisions of this Act, and of rules

prescribed under this Act, supersede and preempt any provisions

of state law with respect to election to Federal office." 2

U.S.C. § 453. The current § 453 replaced a prior provision that

included a savings clause, expressly preserving state laws,

except where compliance with state law would result in a

violation of FECA or would prohibit conduct permitted by FECA. 

See Federal Election Campaign Act of 1971, Pub. L. No. 92-225,

1972 U.S.C.C.A.N.N. (86 Stat.) 23 (amended by Federal Election

Campaign Act Amendments of 1974, Pub. L. No. 93-443, 1974
 5

In this case, express preemption via the FECA preemption

clause and field preemption are no different in practice. The

FECA preemption clause means that FECA occupies the field "with

respect to election to federal office." 2 U.S.C. § 453. The

only real issue is the effective reach of this phrase.

9

U.S.C.C.A.N. (88 Stat.) 1469). 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." H.R.

Rep. No. 1239, 93d Cong., 2d Sess. 10 (1974).

"When Congress ... has included in the enacted legislation a 

provision explicitly addressing [preemption], 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, 112 S. Ct. at 2616

(citations omitted). The express language of the broadly worded

FECA preemption provision, illuminated by the legislative

history, may be sufficiently clear to preempt O.C.G.A. § 21-5-35,

which could readily be understood as a "state law with respect to

election to Federal office." Likewise, this court could

determine that FECA has "occupied the field" of regulation of

federal elections and that the Georgia statute has impermissibly

strayed into this field.5

I have no doubt that the purpose of the state law is, as the

Attorney General and State assert, to prevent the appearance of
10

impropriety--bribery, to be precise--that may arise when state

legislators accept campaign contributions during the period of

time when they are actually legislating. To be sure, the Georgia

Ethics in Government Act is an admirable example of selfregulation by incumbent state legislators, and it is not

specifically directed toward federal elections. Nonetheless, it

is the effect of the state law that matters in determining

preemption, not its intent or purpose. 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. See Gade v. National Solid Waste

Management Ass'n, 112 S. Ct. 2374, 2386-87 ("In assessing the

impact of a state law on the federal scheme, we have refused to

rely solely on the legislature's professed purpose and have

looked as well to the effects of the law."); Felder v. Casey, 108

S. Ct. 2302, 2306 (1988) ("'[T]he relative importance to the

State of its own law is not material when there is a conflict

with a valid federal law,' for 'any state law, however clearly

within a State's acknowledged power, which interferes with or is

contrary to federal law, must yield.'") (quoting Free v.Bland, 82

S. Ct. 1089, 1092 (1962)); Napier v. Atlantic Coast Line R.R.

Co., 47 S. Ct. 207, 209-10 (1926) (preemption depends not on

whether federal and state laws "are aimed at distinct and

different evils" but whether they "operate upon the same
 6

Indeed, this is Judge Carnes's conclusion.

11

object").

In this case, the effect of O.C.G.A. § 21-5-35 is to place a

limitation on Teper's fundraising for his federal campaign. It

would be possible to conclude, therefore, that the state law

operates "with respect to election to Federal office," and thus

falls within FECA's express preemption provision, 2 U.S.C. §

453.6 Other courts have found express FECA preemption of state

laws that are no more, or not much more, intrusive of federal

regulation. See Bunning v. Commonwealth of Kentucky, 42 F.3d

1008 (6th Cir. 1994) (holding that § 453 preempts state law

purporting to regulate poll conducted by U.S. Congressman's

federal election committee to test the effectiveness of

advertising conducted during a federal campaign); Weber v.

Heaney, 995 F.2d 872, 875 (8th Cir. 1993) (concluding that,

"under every plausible reading of § 453," state law establishing

system of public funding for U.S. Congressional candidates "falls

squarely within the boundaries of the preempted domain"). And

cases in which preemption was not found invariably involve state

laws that are more tangential to the regulation of federal

elections. See Karl Rove & Co. v. Thornburgh, 39 F.3d 1273 (5th

Cir. 1994) (federal candidate's personal, contractual liability

for costs of direct mail fundraising services during his campaign

not preempted); Stern v. General Elec. Co., 924 F.2d 472 (2d Cir.

1991) (state law claims of corporate waste based on corporation's
 7

In response to Buckley, the 1976 amendments to FECA

reconstituted the FEC to allow the agency constitutionally to

exercise its delegated duties and powers under the Act. See S.

Rep. No. 677, 94th Cong., 2d Sess. 1, 1-4 (1976), reprinted in

1976 U.S.C.C.A.N. 929, 929-32. The FEC was restructured as an

independent executive branch agency, comprised of six

commissioners to be appointed by the President with the advice

and consent of the Senate. No more than three of the

commissioners may be affiliated with the same political party. 

12

contributions to federal political campaigns not preempted);

Reeder v. Kansas City Bd. of Police Comm'rs, 733 F.2d 543 (8th

Cir. 1984) (ban on political contributions by city police

department employees not preempted). I hesitate, however, to

conclude summarily that the preemptive scope of § 453 is so

unambiguous as to evince a "clear and manifest purpose of

Congress," Rice, 67 S. Ct. at 1152, to encompass state laws such

as § 21-5-35. Because further, and more definitive, evidence of

Congress's intent is provided by the FEC's interpretation of

FECA--and because § 453 incorporates by reference "rules

prescribed under" FECA--I think it appropriate to take the

agency's view into account before finally resolving the issue.

 The 1974 amendments to FECA created the FEC and "vest[ed] in

it primary and substantial responsibility for administering and

enforcing the Act," delegating to the agency "extensive

rulemaking and adjudicative powers." Buckley, 96 S. Ct. at 677-

78; see also FEC v. Democratic Senatorial Campaign Comm., 102 S.

Ct. 38, 45 (1981).7 The FEC is authorized to prescribe rules and

regulations to carry out the provisions of FEC, 2 U.S.C. §

438(a)(8), and to give, upon request, advisory opinions
13

concerning the application of FECA, 2 U.S.C. §§ 437d(7), 437f. 

Exercising this delegated authority, the FEC has promulgated

regulations and issued a number of advisory opinions interpreting

and applying FECA to determine its preemptive effect on state

law. With respect to the type of regulation imposed by O.C.G.A.

§ 21-5-35, the FEC's interpretation of FECA is unambiguous: such

state laws are preempted.

A 1977 FEC regulation specifies that "Federal law supersedes

state law concerning ... [l]imitation on contributions and

expenditures regarding Federal candidates and political

committees." 11 C.F.R. § 108.7(b)(3). Interpreting this

regulation, the district court plausibly determined that,

according to the terms of the regulation, O.C.G.A. § 21-5-35

would be preempted, for "[a] restriction on when a potential

candidate may accept contributions is simply another type of

limitation." The regulation also enumerates the following areas

in which state law is not preempted: "(1) [m]anner of qualifying

as a candidate or political party organization; (2) [d]ates and

places of election; (3) [v]oter registration; (4) [p]rohibition

of false registration, voting fraud, theft of ballots, and

similar offenses; or (4) [c]andidate's personal financial

disclosure." 11 C.F.R. § 108.7(c). Although, as the State

emphasizes, the regulation allows states to legislate

"[p]rohibition[s] of false registration, voting fraud, theft of

ballots, and similar offenses," § 21-5-35 is not about voting
 8

FECA details the requisite procedures FEC must follow in

prescribing regulations. The FEC must submit a proposed

regulation and an accompanying statement to both the House and

the Senate; if neither disapproves the proposed regulation within

thirty days, the FEC may issue it. 2 U.S.C. § 438(d). We note

that Congress has seen and not disapproved 11 C.F.R. § 108.7,

thus suggesting that the regulation is not inconsistent with

Congressional intent. See Weber, 995 F.2d at 876-77.

14

fraud. The Georgia statute operates against fraud at the level

of governance, as in bribery of a state legislator through

campaign donations, not at the level of registering to vote and

casting ballots (which the state is free to regulate). Thus, I

am inclined to agree with the district court that the gloss this

FEC regulation places on the FECA preemption provision could be a

sufficient basis for inferring Congress's intent to preempt the

Georgia law.8

Any residual ambiguity as to the FEC's understanding of the

preemptive effect of FECA on the Georgia statute is conclusively

resolved by FEC advisory opinions. The FEC consistently has

expressed the opinion that FECA preempts state statutes limiting

the time frame during which federal candidates may accept

campaign contributions. See Op. FEC 1994-2 (advising that FECA

preempts a Minnesota statute barring lobbyists from contributing

to a candidate during a regular session of the state

legislature); Op. FEC 1993-25 (advising that FECA preempts a

Wisconsin statute restricting the time period during which

lobbyists can contribute to candidates); Op. FEC 1992-43

(advising that FECA preempts a Washington statute barring state
 9

This formal opinion was issued in response to an inquiry by

another, more persistent, member of the Georgia General Assembly

running for Congress.

15

officials from accepting campaign contributions during

legislative sessions). In fact, Teper himself wrote to the FEC

in November 1995 requesting an advisory opinion on the

constitutionality of O.C.G.A. § 21-5-43. In a reply letter dated

December 5, 1995, the Associate General Counsel of the FEC wrote

that a formal advisory opinion was unnecessary because FEC

regulations and previous advisory opinions made clear that the

Georgia law was preempted. Subsequently, after the district

court's decision in this case, the FEC did address § 21-5-35 in a

formal advisory opinion,9

 reiterating that the Georgia statute

was preempted by FECA. See Op. FEC 1995-48. The advisory

opinion noted the district court decision in this case and

concluded, "Under the broad preemptive powers of [FECA], only

Federal law could limit the time during which a contribution may

be made to the Federal election campaign of a State legislator." 

Id.

Thus, even if the FECA preemption provision is not

sufficiently determinate on its face to preempt O.C.G.A. § 21-5-

35, the FEC's unambiguous understanding is that FECA preempts the

state statute. The pressing question at this point, therefore,

is to what extent this court should defer to the FEC's

interpretation of FECA. Although this court could, of course,

accept the FEC's interpretation simply as persuasive authority,
16

in fact I believe that we are obliged to take the FEC's

interpretation as more than merely convincing.

The Supreme Court has instructed, "When Congress, through

express delegation or the introduction of an interpretive gap in

the statutory structure, has delegated policy-making authority to

an administrative agency, the extent of judicial review of the

agency's policy determinations is limited." Pauley v. BethEnergy

Mines, Inc., 111 S. Ct. 2524, 2534 (1991). This language

reflects the general principle established in the landmark case

of Chevron U.S.A., Inc. v. National Resources Defense Council,

Inc., 104 S. Ct. 2778 (1984), that if a statute is "silent or

ambiguous with respect to the specific issue" in question, courts

should accept "reasonable" administrative interpretations. See

id. at 2782. 

The FEC, in particular, is "precisely the type of agency to

which deference should presumptively be afforded." FEC v.

Democratic Senatorial Campaign Comm., 102 S. Ct. at 45; see also

Orloski v. FEC, 795 F.2d 156, 164 (D.C. Cir. 1986) (allowing the

FEC's interpretation of FECA "considerable deference"). This is

not only because of the extensive responsibility and discretion

in administering FECA expressly vested in the FEC by Congress,

but also in light of the fact that "the Commission is inherently

bipartisan ... and it must decide issues charged with the

dynamics of party politics, often under the pressure of an

impending election." Id.; see also Common Cause v. FEC, 842 F.2d
 10The fact that the multiple FEC advisory opinions

interpreting FECA to preempt state regulations of the timing of

campaign contributions have been consistent further militates in

favor of deference. See, e.g., Wagner Seed Co. v. Bush, 946 F.2d

918, 921-22 (D.C. Cir. 1991) (in the course of concluding that

EPA interpretation issued via decision letter entitled to

deference, noting that interpretation was given "in order to

resolve an important and recurring matter before it," and that

"agency has applied this interpretation consistently"), cert.

17

436, 448 (D.C. Cir. 1988) (judicial deference particularly

appropriate in the context of FECA, which explicitly relies on

the bipartisan Commission as its primary enforcer). Deference to

FEC interpretations of FECA is appropriate not only for rules but

also for advisory opinions, given the FEC's express statutory

responsibility for issuing advisory opinions concerning the

application of FECA. 2 U.S.C. §§ 437d, 437f. See FEC v.

Colorado Republican Fed. Campaign Comm., 59 F.3d 1015, 1021 (10th

Cir. 1995) (deferring to FEC interpretive advisory opinions),

cert. granted, 116 S. Ct. 689 (1996); FEC v. Ted Haley

Congressional Comm., 852 F.2d 1111, 1115 (9th Cir. 1988) (FEC

interpretation of FECA through regulations and advisory opinions

"entitled to due deference and is to be accepted by the court

unless demonstrably irrational or clearly contrary to the plain

meaning of the statute"); Orloski, 795 F.2d at 164 (FEC

interpretation of FECA should be given deference because FEC's

statutory responsibility to issue advisory opinions "implies that

Congress intended the Commission to fill in gaps left in the

statute and to resolve any ambiguities in the statutory

language").10
denied, 112 S. Ct. 1584 (1992).

18

There is, however, one further twist to Chevron deference:

it may not be obvious that this court's obligation to defer to

FEC interpretations of FECA attaches even when those

interpretations address the scope of preemption of state law by

federal regulation. I recognize that the law may be unsettled in

general as to the application of Chevron to an agency's

determination of its own jurisdiction. See generally Cass R.

Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev.

2071, 2097-2101 (1990). Indeed, there is an inherent tension

between Chevron deference, which only obtains where a statute is

"silent or ambiguous," Chevron, 104 S. Ct. at 2782, and

preemption doctrine, which maintains that state law will not be

preempted unless that is "the clear and manifest purpose of

Congress," Rice, 67 S. Ct. at 1152. So, to say that a court

should defer to an agency's determination that state law is

preempted is seemingly paradoxical: the agency would command

deference under Chevron only if the federal statute were

ambiguous; but if the federal statute were ambiguous, then

Congress's intent to preempt seemingly would not be "clear and

manifest." Furthermore, although separation of powers (or

institutional competence) concerns might counsel in favor of

courts' deferring to agencies in the resolution of ambiguous
 11The Chevron Court articulated this rationale in passages

such as this:

Judges are not experts in the field, and are not

part of either political branch of the Government. ...

When a challenge to an agency construction of a 

statutory provision, fairly conceptualized, really

centers on the wisdom of the agency's policy, rather

than whether it is a reasonable choice within a gap

left open by Congress, the challenge must fail. In

such a case, federal judges--who have no constituency--

have a duty to respect legitimate policy choices made

by those who do. The responsibilities for assessing

the wisdom of such policy choices and resolving the

struggle between competing views of the public interest

are not judicial ones: "Our Constitution vests such

responsibilities in the political branches." TVA v.

Hill, 98 S. Ct. 2279, 2302 (1978).

 

104 S. Ct. at 2793.

19

questions of statutory interpretation,11 countervailing

federalism concerns offset this rationale for Chevron deference

in preemption cases. Although federal agencies are more

democratically accountable than courts, state legislatures are

arguably yet more politically accountable. In the abstract,

then, it is not at all clear that a state's view that a federal

statute does not preempt state law should give way to a federal

agency's view that the statute does preempt.

Fortunately, I need not completely untangle this knotty

issue of jurisprudence in order to conclude that the FEC's

interpretation of FECA is entitled to deference in this case. In

City of New York v. FCC, a unanimous Court clarified the law

sufficiently to settle the issue before us:

It has long been recognized that many of the
20

responsibilities conferred on federal agencies involve

a broad grant of authority to reconcile conflicting

policies. Where this is true, the Court has cautioned

that even in the area of pre-emption, if the agency's

choice to pre-empt "represents a reasonable

accommodation of conflicting policies that were

committed to the agency's care by the statute, we

should not disturb it unless it appears from the

statute or its legislative history that the

accommodation is not one that Congress would have

sanctioned." 

108 S. Ct. 1637, 1642 (1988) (quoting United States v. Shimer, 81

S. Ct. 1554, 1560 (1961), and citing Capital Cities Cable, Inc.

v. Crisp, 104 S. Ct. 2694, 2700 (1984)). An agency like the FEC,

to which Congress has delegated broad discretion in interpreting

and administering a complex federal regulatory regime, is

entitled to significant latitude when acting within its statutory

authority, even in its decisions as to the scope of preemption of

state law. See also Fidelity Fed. Savings & Loan Ass'n v. de la

Cuesta, 102 S. Ct. 3014, 3022-23 (1982). But cf. Louisiana Pub.

Serv. Comm'n v. FCC, 106 S. Ct. 1890 (1986) (overturning agency

preemption determination without mention of Chevron deference). 

In other words, even if a statute is on its face ambiguous,

Congress's intent to preempt may be clear when the administrative

agency expressly responsible for interpreting and implementing

the statute has clarified it. 

Finally, the State has failed to construct a compelling

argument that the FEC's interpretation of the preemptive effect

of FECA is unreasonable or inconsistent with Congressional

intent. To the contrary, I find the FEC's interpretation
21

persuasive and corroborative of my own (and the district court's)

understanding of the scope of the FECA preemption provision. 

Thus, even if the FECA preemption provision, read in light of the

purposes and structure of the Act, is not adequately clear to

preempt the Georgia statute expressly, FEC's interpretation of

the statute settles the matter. I conclude that O.C.G.A. § 21-5-

35, as applied to candidates for federal office, is preempted. 

Thus, the district court correctly decided that Teper has a

substantial likelihood of success on the merits.

The district court's grant of a preliminary injunction is

AFFIRMED.