TEE ATTORNEY GENERAL 

OF’ TEXAS 

AUHTIN. TXXAS 787lg 

March 15, 1974 

The Honorable Mark W. White, Jr. 

Secretary of State 

State of Texas 

Austin, Texas 78711 

Dear Mr. White: 

Opinion No. H- 259 

Re: Responsibilities of 

candidates for 

federa 1 office under 

the Campaign Reporting and Disclosure 

Act of 1973 

The Campaign Reporting and Disclosure Act of 1973 (Acts 1973, 

ch. 423, p. 1101, generally found in Chapter 14, Texas Election Code), 

regulates campaign contributions and expenditures. Among the persons 

covered by the Act are candidates for certain federal offices. These 

candidates also must conform to the requirements of the Federal Election Campaign Act of 1971 (P. L. 92-225, 86 Stat. 3). See also 11 C. F. R. 

5 1. 1 et seq. A candidate’s concurrent responsibility under the state and 

federal laws is defined in $403 (2 U.S. C. $453) of the federal act. That 

section provides: 

“Sec. 403. (a) 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. 

“(b) Notwithstanding subsection (a), no provision 

of State law shall be construed to prohibit any person 

from taking any action authorized by this Act or from 

makingany expenditure (as such term is defined in 

section’301(f) of this Act) which he could lawfully make 

under this Act. ” 

I 

I 

p. 1210 
The Honorable Mark W. White, Jr., page 2 (H-259) 

In addition, 5 308(b)[2U. S. C. § 438(b)] and § 309 [2U. S. C. § 4391 of the 

federal act contemplate cooperation between state and federal officials 

in administering the system of reports on campaign contributions and 

expenditures. 

In light of these provisions of the federal act you ask our opinim as to 

‘bhat portions of [the state act] are applicable to federal candidates and 

what portions of [the state act] have been preempted by the Federal 

Election Campaigns Act. ” 

Section 403 was offered as an amendment by Representative Udall 

during consideration of the bill by the House of Representatives acting 

as the committee of the whole. In explaining the amendment to the House, 

he said: 

“MR. UDALL, Mr. Chairman, I have offered 

this amendment at the request of several of my colleagues. It deals with the conflict between the new 

Federal law we are going to have and the 50 State laws. 

Some of the State laws are very ancient and have unrealistic and unworkable spending limitations and all 

the rest. 

“This amendment comes in two parts. 

“The first deals with the dilemma one might 

have, where, by complying with the reporting provision in the Federal law one would violate the State 

law, or, by complying with the State law, would violate 

the Federal law. 

“[Paragraph (a)] simply says that one does not 

violate a State law when one complies with this Federal 

law. 

p. 1211 
: 

The Honorable Mark W. White, Jr. page 3 (H-259) 

“The second half of the amendment (Paragraph 

b) deals in a more affirmative fashion with this conflict 

of State and Federal law problem. 

11 

“Let me give you an example. One member 

here tells me in his State there is a very rigid 

provision which limits him to about $5, 000. The 

new Act will have a $50, 000 limitation in it. All 

this amendment says is you can spend up to the 

amount authorized by the Federal Act without 

regard to a lot of old, obsolete State Acts. I do 

not know of any controversy. ” 117 Gong. Rec. 4339b 

(1971). 

When the conference report was before the House, Representative 

Hays, the House sponsor of the legislation, was questioned on the effect 

of $403. The colloquy was: 

“MR. BINGHAM. . I would like to 

ask the chairman of the Committee on House 

Administration a question about the interpretation 

of section 403 which deals with the effect of this 

legislation on State laws. As I understand it, 

section 403 (b) would vitiate any State laws which 

impose either spending ceilings or lower ceilings 

on the amount that a candidate or his family might 

spend foi.a campaign. Is that correct? 

“MR. HAYES. My opinion is that the gentleman is correct in his interpretation. Subsection 

(b) of section 403 refers to a whole list of purposes 

in section 301 (f) for which expenditures may be 

lawfully made. Obviously, contradictory State 

laws are superseded. Similarly limitations on 

contributions lower than those in this bill forcibly 

p. 1212 
The Honorable Mark W. White, Jr. page 4 (H-259) 

vitiate the intent of this bill and therefore, in my 

opinion, they are not valid. ” 118 Cong. Rec. 

H85 (daily ed. Jan. 19, 1972). 

We believe that the two paragraphs of $403 must be construed 

together. Although paragraph (b) expressly controls over paragraph 

(a), we do not think paragraph (a) is rendered meaningless. Therefore, 

it is our opinion that the reference in paragraph (b) to “action authorized 

by this Act” refers to actions authorized expressly and affirmatively. 

The failure to prohibit an act is not an “authorization” of it. For 

example, even though the federal act does not require reports of 

contributions not exceeding one hundred dollars, we do not believe a 

candidate can successfully claim that the federal act expressly authorizes, 

under $ 403 (b) a failure to report contributions of one hundred dollars 

or less if a state law requires such a report. Thus, the more stringent 

reporting requirement of section 9 [Vernon’s Texas Election Code, 

Article 14. 08(c)] of the state act would apply to federal candidates. 

On the other hand, as stated to the House by the author of 5 403 and by 

the sponsor of the bill, provisions of the federal act permitting expenditures 

of a certain kind or amount would supersede contrary state requirements. 

Section 403 is directed to actions authorized to be taken by “any 

person”, and is not limited to candidates. 

The state law is generally applicable to those federal candidates, 

contributors and committees covered by it, except where there is a 

specific conflict with the federal law. The only potential conflict we 

have found is between $ 8 [Vernon’s Texas Election Code, Article 14. 071 

of the state act and section 205 [18 U.. S. C. $ 6101 of the federal act. 

Section 8 of the state act provides in part: 

“(a) Except to the extent permitted in [Vernon’s 

Texas Election Code, Article 15.171 no corporation 

shall give, lend or pay any money or other thing of 

value, or promise to give, lend or pay any money 

p. 1213 
, ’ 

TIE Honorable Mark W. White, Jr. , page 5 (H-259) 

or other thing of value, directly or indirectly, to 

any candidate, political committee, campaign manager, assistant campaign manager, or any other 

person, for the purpose of aiding or defeating the 

nomination or election of any candidate or of aiding 

or defeating the approval of any political measure 

submitted to a vote of the people of this state or 

any subdivision thereof; . ” 

Section 205 of the federal act provides: 

“Sec. 205. Section 610 of title 18, United States 

Code, relating to contributions or expenditures by 

national banks, corporations, or labor organizations., 

is amended by adding at the end thereof the following 

paragraph: 

“As used in this section, the phrase 

‘contribution or expenditure’ ~shall include any 

direct or indirect payment, distribution, loan, 

advance, deposit, or gift of monqor any services, 

or anything of value (except a loan of money by 

a national or State hank made in accordance with 

the applicable banking laws and regulations and 

in the ordinary course of business) to any candidate, 

campaign committee, or political party or organization, in connection with any election to any of the 

offices referred to in this section; but shall not 

include communications by a corporation to its 

stockholders and their families or by a labor 

organization to its members and their families 

on any subject; nonpartisan registration and get.- 

out-the-vote campaigns by a corporation aimed 

at its stockholders and their families, or by a 

labor organization aimed at its members and their 

families; the establishment, administration, and 

solicitation of contributions to a separate segregated 

p, 1214 
The Honorable Mark W. White, Jr. page 6 (H-259) 

fund to be utilized for political purposes by a corporation or labor organization: Provided, that it 

shall be unlawful for such a fund to make a contribution 

or expenditure by utilizing money or anything of value 

secured by physical force, job discrimination, financial 

reprisals, or the threat of force, job discrimination, 

or financial reprisal; or by dues, fees, or other monies 

required as a condition of membership in a labor 

organization or as a condition of employment, or 

by moneys obtained in any commercial transaction. ‘I 

We know of no judicial construction of the state’s prohibition of 

direct or indirect contributions by a corporation. You have not asked 

us to construe this provision, and it is not necessary for us to do so. 

However, if the state act is interpreted to prohibit the types of activity 

permitted by section 205 of the federal act, the federal act would 

prevail in regard to candidates for federal office. 

SUMMARY 

Candidates for those federal offices included in the 

coverage of the Campaign Reporting and Disclosure 

Act of 1973.(Acts 1973 63 Leg. ch. 423, p. llOl), 

committees working on behalf of those candidates 

and contributors to those candidates or committees 

must comply with the provisions of state election 

laws except where federal laws are in conflict as 

definedat:2U. S. C. $ 453. 

p. 1215 
. 

.I 

, 

The Honorable Mark W. White, Jr., page f (H-259) 

If the state prohibition on direct or indirect 

corporate contributions is construed to prohibit 

contributions to federal candidates from the type 

of fund contemplated by 18 U. S. C. $ 610, the 

federal law wilp prevail. 

Yours very truly, 

A 

JOHN L. HILL 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p, 1216