Can a Maryland county make its contractors and lobbyists disclose campaign contributions to local officials?

Plain-English summary

In March 1990 the Prince George's County Council adopted Council Bill 17-1990, a local ethics measure with three main parts: registered lobbyists could not make, promise, or solicit contributions to county candidates, or attempt to influence council votes by promising financial support or threatening financial opposition; anyone doing business with the county had to file an annual sworn statement disclosing campaign contributions to candidates and political committees along with the business done with the county; and contributions from a business entity's officers, directors, partners, subsidiaries, employees, and agents were attributed to the entity. The county attorney asked whether state law preempted the bill.

The Attorney General concluded that almost all of it was preempted. The controlling case was County Council v. Montgomery Association, where the Court of Appeals had invalidated a similar Montgomery County campaign finance ordinance because "[t]he matter of election campaign financing was intended to be completely occupied by State law." The State Election Code, Article 33, regulated both campaign contributions and disclosure of contributions by those doing public business, so the county could not legislate in the field at all; it did not matter whether the local rules actually conflicted with the state ones, because field preemption forbids any local legislation on the subject. The county's planning and zoning authority under the Regional District Act did not help, since nothing in that act authorized campaign finance legislation. The one provision that survived was the ban on a lobbyist attempting to influence a council member's vote by promising financial support or threatening financial opposition. The Election Code does not regulate the nature of the discourse between lobbyists and officials, and Article 40A, §6-301 directs local governments to enact lobbyist regulation, so that provision stood. The opinion expressly declined to address any First Amendment issues it might raise.

Currency note

This opinion was issued in 1990. 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. Maryland's election and ethics laws, including the former Article 33 and Article 40A, have since been recodified and amended, and the state's treatment of local campaign finance authority has evolved.

Common questions

Could Prince George's County require its contractors to disclose campaign contributions?
No, under this 1990 opinion. The disclosure requirement in proposed Code §2-298 dealt with campaign financing, a field the State Election Code completely occupied, so the county had no power to legislate there.

Why was the ordinance preempted if it didn't conflict with state law?
Because Maryland applies field preemption to campaign finance. Once the General Assembly occupies a field, local governments may not enact any legislation in it, conflicting or not. That was the holding of County Council v. Montgomery Association, which struck down a comparable Montgomery County ordinance in 1975.

Did any part of the county bill survive?
One provision: the ban on a registered lobbyist attempting to influence a council member's vote by promising financial support or threatening financial opposition. The opinion viewed that as regulating lobbyist conduct and discourse rather than contributions, which fit the county's mandate to regulate lobbyists under Article 40A, §6-301.

Could the county rely on its zoning powers to require disclosure from zoning applicants?
No. For planning and zoning matters the county's authority came from the Regional District Act, and nothing in that act authorized campaign finance legislation, as counsel to the General Assembly had already advised before the bill was introduced.

Background and statutory framework

Council Bill 17-1990 would have added Code §§2-295.1, 2-298, and 2-299 to the Prince George's County Code, building on the county's existing lobbyist registration scheme (registration required by §2-295(a), with "lobbying" defined in §2-291(h)). "Elective office" was defined broadly in §2-291(m) to reach not just county offices but municipal offices, sheriff, state's attorney, clerk, register of wills, and members of the General Assembly. The preemption analysis rested on County Council v. Montgomery Association, 274 Md. 52 (1975), and the field-preemption rule restated in Ad + Soil, Inc. v. County Comm'rs, plus the Election Code's own coverage of contributions and doing-public-business disclosure in Article 33, §§26-9 and 30-1 through 30-4. It also adopted the earlier advice of Assistant Attorney General Robert A. Zarnoch, counsel to the General Assembly, that campaign contribution disclosure is a matter of state, not local, concern.

On the surviving provision, Article 40A, §6-301 directed each local government to enact lobbyist regulation substantially similar to the state ethics law's Title 5, adapted to the jurisdiction. Prior AG opinions (71 Opinions of the Attorney General 108 (1986); 68 Opinions of the Attorney General 252 (1983)) had established that this did not authorize local regulation of lobbyists' campaign contributions, but the vote-influence prohibition regulated the lobbyist-official relationship itself, which the Election Code left untouched. A footnote also noted that Senate Bill 832, which would have superseded the county ordinance wholesale, had received an unfavorable committee report, so its effect did not need analysis.

Citations and references

Statutes and ordinances:

• Prince George's County Council Bill 17-1990, proposing Code §§2-295.1, 2-298, and 2-299; existing County Code §§2-291 and 2-295 (lobbyist definitions and registration)
• State Election Code, Article 33, including §§26-9 and 30-1 through 30-4 (contributions and disclosure by persons doing public business)
• Article 40A, §6-301 (local lobbyist regulation mandate); the Regional District Act, Titles 7 and 8 of Article 28 of the Maryland Code

Cases:

• County Council v. Montgomery Association, 274 Md. 52 (1975) (state law completely occupies election campaign financing)
• Ad + Soil, Inc. v. County Comm'rs, 307 Md. 307, 324, 513 A.2d 893 (1986) (effect of field preemption)

Related AG opinions: 71 Opinions of the Attorney General 108 (1986); 68 Opinions of the Attorney General 252 (1983)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 343-347 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

LOCAL GOVERNMENT

Prince George's County — Elections — Contributions — Preemption — County Ordinance Requiring Disclosure of Campaign Contributions Generally Preempted

April 4, 1990

Michael P. Whalen, Esquire
County Attorney for
Prince George's County

 You have requested our opinion on whether Prince George's County Council Bill 17-1990, "Disclosure of Campaign Contributions By Persons Doing Business With the County," is preempted by State law. For the reasons stated below, we conclude that the bill is preempted by State law, with the exception of §2-295.1(a)(1), which in our view is not preempted.1

I

Council Bill 17-1990

On March 20, 1990, the Prince George's County Council adopted an ordinance "requiring that all persons who do business with the County report campaign contributions made to elected officials in Prince George's County; providing for restriction upon the activities of persons registered as lobbyists; and providing that persons contracting with the County file required reports." County Bill 17-1990 (title).

 The heart of the bill is its Section 2, which would add three new sections to the Prince George's County Code. Code §2-295.1 restricts campaign contributions by lobbyists:

     A person required to be registered as a lobbyist shall not:

          (1) Attempt to influence the vote of any member of the County Council by the promise of financial support of the member's candidacy or by threat of financial opposition to the member's candidacy;

          (2) Make or promise to make any contributions to any candidate to the County Council or County Executive; or

         (3) Solicit or attempt to solicit contributions for any candidate for the County Council or County Executive.2

 Code §2-298 requires every person who has done business with the county annually to file a sworn statement disclosing the names of all candidates or political committees to whom a campaign contribution is made, the amount of the contributions, and the nature and amount of business done with the county.3 All candidacies for "elective office" are included, and this term is broadly defined to include not only the offices of County Executive and County Council but also municipal offices and various State offices.4

 Finally, Code §2-299 sets out certain attribution rules for contributions. Under specified circumstances, contributions made by officers, directors, partners, subsidiaries, employees, and agents of business entities are attributed to the entities.

II

Preemption Analysis

A. Preempted Provisions

 Prior to the introduction of Council Bill 17-1990, Assistant Attorney General Robert A. Zarnoch, Counsel to the General Assembly, was asked the general question of "whether Prince George's County has the power to enact an ordinance requiring disclosure of political contributions [that] council members receive from zoning applicants ...." Mr. Zarnoch concluded that "these are areas of State not local concern and only the General Assembly may enact such legislation." Letter to Delegate Timothy F. Maloney (February 12, 1990). We agree with this conclusion, and, applying it to Council Bill 17-1990, are of the view that most of the bill is thus preempted.

 As Mr. Zarnoch wrote:

          In County Council v. Montgomery Association, 274 Md. 52 (1975), the Court of Appeals invalidated a Montgomery County campaign finance ordinance that included reporting of campaign contributions made to members of the County Council and the County Executive. Specifically, the Court held that: "The matter of election campaign financing was intended to be completely occupied by State law ... to the exclusion of local legislation on the subject." 274 Md. at 60.

With one exception, Council Bill 17-1990 deals with the "matter of election campaign financing." It prohibits certain contributions (§2-295.1(a)(2) and (3)), requires a statement of certain contributions (§2-298), and sets attribution rules for these contributions (§2-299). However, the State Election Code, Article 33, fully occupies the field of campaign finance regulation. Article 33 address both campaign contributions and disclosure of contributions by those doing public business. See Article 33, §§26-9 and 30-1 through 30-4.5

 Accordingly, Prince George's County may not legislate on these matters. It does not matter whether the provisions of Council Bill 17-1990 actually conflict with their counterparts in the Election Code, because "the General Assembly, by enacting the comprehensive State Election Code, has completely occupied the field of regulation of campaign finances and thus made clear its intent to exclude local legislation on the subject." Montgomery Association, 274 Md. at 57. See also Ad + Soil, Inc. v. County Comm'rs, 307 Md. 307, 324, 513 A.2d 893 (1986) ("When properly invoked, the [preemption doctrine] precludes local legislative bodies from enacting any legislation whatsoever in the pre-empted field.").

B. Provision Not Preempted

The one provision of Section 2 of Council Bill 17-1990 that is not preempted, in our view, is proposed Code §2-295.1(a)(1), which prohibits a lobbyist from "[a]ttempt[ing] to influence the vote of any member of the County Council by the promise of financial support of the member's candidacy or by threat of financial opposition to the member's candidacy."

Under Article 40A, §6-301, each local government is directed to "enact lobbyist regulation provisions substantially similar to the provisions of Title 5 of [Article 40A] which shall be modified to the extent necessary to make the provisions relevant to that jurisdiction and which may be further modified to the extent deemed necessary and appropriate by and for that jurisdiction." This provision does not authorize a local government to regulate campaign contributions by lobbyists, because the matter of campaign contributions is separately regulated by the Election Code. See 71 Opinions of the Attorney General 108, 109 (1986); 68 Opinions of the Attorney General 252, 261-63 (1983).

 Nevertheless, in our view, a prohibition against "[a]ttempt[ing] to influence the vote of any member of the County Council" by promising future contributions, or threatening to withhold future contributions, is sufficiently distinct from the regulation of the contributions themselves to fall outside of the zone of preemption. The State Election Code does not regulate the nature of the discourse between lobbyists and officials. Thus, Code §2-295.1(a)(1) is a proper exercise of the County's power under Article 40A, §6-301.6

III

Conclusion

In summary, it is our opinion that, with the exception of §2-295.1(a)(1), all of the provisions to be added to the Prince George's County Code by Section 2 of County Bill 17-1990 would be preempted by State law.

                                           J. Joseph Curran, Jr.
                                           Attorney General

                                           Jack Schwartz
                                           Chief Counsel
                                             Opinions and Advice

1
You also asked about the effect on Council Bill 17-1990 of the provisions of Section 3 of Senate Bill 832, which provides that the latter bill "supersedes any Prince George's County ordinance dealing with subjects covered by [the bill]" and provides that the "bill may not be supplemented by any Prince George's County ordinance." Senate Bill 832 has been given an unfavorable report by the House Constitutional and Administrative Law Committee. Accordingly, although we assume that the Senate's intent was to preempt Council Bill 17-1990 in its entirety, we need not analyze the provision's potential effect.

2
Under §2-295(a) of the County Code, "any person who engages in lobbying members of the County Council" and who either expends or receives compensation in excess of stated dollar amounts must register. The term "lobbying" means:

           (1) Communicating in the presence of a County official or employee with the intent to influence any official action of that official or employee; or
           (2) Engaging in activities having the express purpose of soliciting others to communicate with a County Council Member with the intent to influence that official.

Code §2-291(h).

3
The definition of "[d]oing business with" the county is amended to include "[b]ecoming a party of record in or lobbying in support of or in opposition to a land development activity." Code §2-291(d)(4). See also Code §2-291(n) (definition of "land development activity").

4
Code §2-291(m) provides as follows: "'Elective office' means the offices of County Executive, County Council, Board of Education, Mayor or City Council of a municipality, Sheriff, State's Attorney, Clerk of the Court, Registrar of Wills, Senator and Delegate."

5
Insofar as Council Bill 17-1990 seeks to impose certain disclosure requirements on persons who are seeking decisions from the County Council on planning and zoning matters, the basis of the Council's authority is not the county's home rule charter but rather the Regional District Act set out in Titles 7 and 8 of Article 28 of the Maryland Code. However, nothing in the Regional District Act authorizes the County Council to enact campaign finance legislation. Thus, as Mr. Zarnoch concluded, "Prince George's County lacks the power to enact ... a political contribution disclosure ordinance with respect to zoning applicants or council members ...."

6
We were not asked to consider, and therefore do not address, any First Amendment issues raised by §2-295.1(a)(1).