Does North Carolina's ban on accepting campaign contributions during legislative sessions apply to candidates for federal office?

Plain-English summary

NC has long had a statute, N.C.G.S. § 163-278.13B, that prohibits state legislators and certain other state candidates from accepting campaign contributions during legislative sessions. The policy purpose is to keep contributors from influencing legislators while bills are pending.

The AG was asked whether that statute applied to NC state legislators (or others) running for federal office, who would otherwise be raising federal campaign contributions during a NC legislative session.

The answer was no. The Federal Election Campaign Act (FECA) preempts state law in three specific areas concerning federal candidates:

1. Organization and registration of political committees supporting federal candidates;
2. Disclosure of receipts and expenditures by federal candidates and political committees;
3. Limitation on contributions and expenditures regarding federal candidates and political committees.

The Act expressly does not preempt state law on candidate qualification, election dates and places, voter registration, election fraud, or personal financial disclosure. A state-imposed limit on contributions to federal candidates falls squarely within the third preempted category.

The supporting authority. The FEC had already issued advisory opinions finding that materially similar state laws were preempted:

• Wisconsin (FEC Advisory Opinion 1993-25)
• Minnesota (FEC Advisory Opinion 1994-2)
• Georgia (FEC Advisory Opinion 1995-48)

Federal circuit courts had reached the same conclusion. Teper v. Miller, 82 F.3d 989 (11th Cir. 1996), considered a Georgia statute that, like NC's, banned legislators and statewide candidates from accepting contributions during legislative sessions. The Eleventh Circuit held the statute preempted as applied to candidates for federal office. Weber v. Heaney, 995 F.2d 872 (8th Cir. 1993), reached a parallel conclusion on Minnesota's regime.

The practical effect. A NC legislator running for the U.S. House or U.S. Senate could solicit and accept federal contributions during a NC legislative session. The legislator could not, during the same session, accept contributions to their state legislative campaign committee. The state-vs-federal line matters and has to be carefully observed in the candidate's compliance practice.

The opinion is short, three pages, because the law is clear and the federal authority is uniform. The AG simply confirmed that NC was not an outlier from the federal preemption holding.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The FECA preemption framework has remained substantially the same since 1998, and the AG's reading has stood up. Anyone working on a current NC legislator-running-for-federal-office compliance question should verify the current version of § 163-278.13B (which has been recodified and amended), the current FECA preemption regulation at 11 C.F.R. § 108, and any current FEC advisory opinions on session-based contribution restrictions.

Common questions

Q: What does "preempted" mean?
A: The federal law occupies the field and displaces inconsistent state law. The state statute is not unconstitutional in the abstract; it just cannot be applied to the preempted federal area.

Q: Why is FECA's preemption so broad in this area?
A: Congress wanted a single federal campaign finance regime for federal elections, to avoid 50-state patchworks of contradictory state rules that could chill federal campaigning or create unfair advantages between candidates in different states.

Q: Can NC still ban session-time contributions to state and local candidates?
A: Yes. FECA preempts only as to federal candidates. NC retains full authority to regulate state and local campaign contributions during sessions.

Q: What if a legislator's federal contribution comes from a state-regulated PAC?
A: The contribution to the federal candidate is preempted. The PAC's own state-law obligations (registration, disclosure under state law) are not preempted to the extent they regulate the PAC's state activity. The line is at the federal contribution.

Q: Does this opinion apply to a federal candidate who is not a state legislator?
A: The preemption applies to all federal candidates, not just sitting state legislators. Even a non-legislator state office-holder running for federal office gets the preemption protection on the federal-contribution side.

Q: What about contributions during sessions to a federal candidate from a NC-registered lobbyist?
A: The opinion does not address lobbyist-specific restrictions. NC has separate statutes restricting lobbyist contributions, which have their own preemption analysis. A modern analysis would need to check whether those statutes apply during the session to federal contributions.

Background and statutory framework

NC's session-time contribution ban traces back to the Watergate-era campaign finance reforms of the 1970s. The legislature wanted to prevent direct-purchase legislative influence by donors writing checks to pending-bill voters. The statute, N.C.G.S. § 163-278.13B, applied to state-office candidates and pre-existed any need to consider federal candidates.

The Federal Election Campaign Act, codified at 2 U.S.C. §§ 431 et seq., was Congress's parallel response. FECA created a federal regime for federal elections: contribution limits, disclosure, PAC registration, public financing. Section 453 of FECA expressly preempts state law on the three areas listed in the opinion. The FEC's regulation at 11 C.F.R. § 108 implements the preemption.

When state legislators run for federal office (typically U.S. House or U.S. Senate), they hit a familiar conflict: the state legislative-session calendar overlaps with the federal campaign cycle. State session-time bans, if applied to federal contributions, would chill federal campaigning for state legislators specifically, while non-legislator federal candidates were free to raise during the same period. The Eleventh and Eighth Circuits both treated that as an unacceptable interference with the federal regime.

The AG's opinion was a routine confirmation of settled law. By 1998, the issue was well-litigated, and the FEC's advisory opinions plus the Teper and Weber decisions had created a clear framework.

Citations

• N.C. Gen. Stat. § 163-278.13B (NC's session-time contribution ban)
• 2 U.S.C. § 453 (FECA preemption of state law on federal-candidate financing)
• 11 C.F.R. § 108 (FEC preemption regulation)
• FEC Advisory Opinion 1993-25 (Wisconsin)
• FEC Advisory Opinion 1994-2 (Minnesota)
• FEC Advisory Opinion 1995-48 (Georgia)
• Teper v. Miller, 82 F.3d 989 (11th Cir. 1996) (Georgia session ban preempted as to federal candidates)
• Weber v. Heaney, 995 F.2d 872 (8th Cir. 1993) (Minnesota campaign rules preempted as to federal candidates)

Source

• Landing page: https://ncdoj.gov/opinions/preemption-of-north-carolina-contribution-restrictions-during-sessions/

Original opinion text

Best-effort transcription based on the text NCDOJ publishes at the landing URL; the published page omits the salutation block and the opening preemption framework, beginning mid-statute. The linked landing page is authoritative.

(b) Federal law supersedes State law concerning the:

(1) Organization and registration of political committees supporting Federal candidates and political committees supporting Federal candidates;

(2) Disclosure of receipts and expenditures by Federal candidates and political committees; and

(3) Limitation on contributions and expenditures regarding Federal candidates and political committees.

(c) The Act does not supersede State laws which provide for the:

(1) Manner of qualifying as a candidate or political party organization;

(2) Dates and places of elections;

(3) Voter registration;

(4) Prohibition of false registration, voting fraud, theft of ballots, and similar offenses; or

(5) Candidate's personal financial disclosure.

These statements of the intent to preempt have been routinely followed by the FEC and the courts. The FEC has issued several advisory opinions dealing with the question of when state law affecting contributions to or solicitations by state elected officials running for federal office is preempted by the federal legislation. In these advisory opinions, the FEC has found statutes similar to North Carolina's in Wisconsin (Advisory Opinion 1993-25), Minnesota (Advisory Opinion 1994-2), and Georgia (Advisory Opinion 1995-48) to be preempted. In addition, the Eleventh Circuit in Teper v. Miller, 82 F.3d 989 (11th Cir. 1996), and the Eighth Circuit in Weber v. Heaney, 995 F.2d 872 (8th Cir. 1993), have found that state law was preempted. The Teper case is particularly instructive because it involves a Georgia statute which provided that no member of its legislature or candidate for statewide office could accept a contribution during a legislative session. The court held the statute, as applied to candidates for federal office, was preempted.

Given this clear history of congressional intent to preempt the area of law governing contributions to candidates for federal office, we conclude that as a result of constitutional and federal law N.C. Gen. Stat. § 163-278.13B is preempted as applied to candidates for federal office.

signed by:

Ann Reed
Senior Deputy Attorney General

Susan K. Nichols
Special Deputy Attorney General