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Federal “Campaign Finance” Laws are Mostly Unconstitutional

061712  RGN ThirlmereIn a recent posting, I wrote:

[I]t is dubious whether the Constitution even gives Congress power to regulate the source and amount of campaign contributions and expenditures. The background and meaning of the Constitution’s “Time, Places and Manner Clause”—which Congress uses to justify such laws—strongly suggests not.

The Time, Places and Manner Clause is Article I, Section 4, Clause 1. It reads as follows:

The Times, Places and Manner of holding 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, except as to the Places of choosing Senators.

Note that this provision grants Congress some authority to regulate congressional elections; it grants no power to regulate presidential or vice-presidential elections. The authority to oversee the choice of presidential and vice-presidential electors is reserved mostly to the states within the regulations in Article II, Section 1, and some other constitutional provisions. (A 1934 U.S. Supreme Court opinion to the contrary, Burroughs v. United States, is apparently based on the long-discredited “inherent sovereign power” doctrine, and clearly erroneous.)

About three years ago, I researched the original meaning of the Time, Places and Manner Clause. I examined the records surrounding adoption of the Constitution and contemporaneous election laws and other documents. I learned that the Founders understood the power to regulate the “time” of an election as authority to fix election days and hours and the length of the term of office. Since the terms of Senators and Representatives are fixed elsewhere in the Constitution, congressional authority to set the “time” of a congressional election means only to fix the days and hours.

I further learned that “place” referred to the location of voting and the districts from which candidates were to be elected. The Constitution also limited somewhat congressional authority to fix the “place” of a congressional election.

Finally, the Framers coined the phrase “Manner of holding elections” to refer to other voting mechanics. Under this phrase, Congress can determine such issues as whether voting is by closed or open ballot, whether a candidate needs a majority or merely a plurality to win, how the votes are counted and protected, and punishment for election-day misconduct, such as bribing election officials.

The historical record was clear that only the states, not Congress, were to govern campaign practices and finance. The states duly proceeded to do so through their criminal codes, their election laws, and their rules pertaining to slander and libel.

The Framers deliberately kept the scope of Congress’s Time, Places and Manner Clause rather narrow, because of the inherent conflict of interest in allowing Congress to regulate its own selection procedures. Many advocates of the Constitution represented that the power to regulate the “Manner of holding Elections” would mean only that the federal government could conduct a congressional election in case state officials were unwilling to so or (perhaps due to invasion) unable to do so.

When my article was published in the University of Pennsylvania Journal of Constitutional Law, I was unaware that any modern court had competently reviewed the subject. Just this past week, however, David Keating, the President of the Center for Competitive Politics, brought my attention to Vannatta v. Keisling, a 1997 Oregon Supreme Court case that explored the meaning of the phrase “manner of regulating, and conducting elections” in its own state constitution. That phrase obviously parallels the U.S. Constitution’s Time, Place, and Manner Clause. And it originates from an era when U.S. constitutional terms were generally better understood than they are today.

The Oregon Supreme Court concluded that the phrase granted no power to regulate campaigns:

If one were to utilize the modern definition of “election” as a “process,” there would be room for the Secretary of State’s argument for a sweeping interpretation of the word “elections” in [the Oregon constitution] because the “process” contemplated by the section could be deemed to be the entire electoral adventure, from the announcement of candidacy through the canvassing of election returns. However, the constitutional provision that we construe here was proposed in 1857, not in 1996. A dictionary relevant to that time gives a more limited definition of the word “election”: “The act of choosing a person to fill an office or employment, by any manifestation of preference, as by ballot, uplifted hands or viva voce[.]” Webster’s American Dictionary of the English Language (1828).
The dictionary on which we rely has no definition of “campaign” that corresponds to the present-day use of that word as a description of the effort to obtain public office or to obtain the passage of an initiated or referred measure. The concept of that time closest to what we now term “campaigning” was “electioneering,” which Noah Webster defined as “the arts or practices used for securing the choice of one to office.” Webster’s American Dictionary of the English Language (1828). It thus appears that, whatever the degree of their overlap today, the ideas of “electioneering” and “elections” were somewhat distinct at the pertinent time, viz., at the time that the Oregon Constitution was created.

Hence: One more fragment of evidence tending to show that incumbent Congressmen’s efforts to protect their own seats by “campaign finance reform” are flatly unconstitutional.

Rob Natelson