by Rob Natelson
There is an on-going debate about the extent to the First Amendment bars congressional campaign finance limits. That debate is important, but it doesn’t address a more fundamental question: What empowers Congress to regulate congressional campaign finance at all?
Remember that the Constitution gives Congress only the powers the Constitution lists. All other powers are reserved to the states and people by the Ninth and Tenth amendments.
Regulation of campaign finance is said to be part of Congress’s power to govern the “Manner” of congressional elections under the Time, Manner, and Place Clause (Article I, Section 4, Clause 1). That provision says the states shall prescribe “the Manner of holding Elections for Senators and Representatives,” but that Congress may (with one restriction) “make or alter such Regulations.”
This past summer, I investigated to find out what the Founders meant by the “Manner of holding Elections.”I found a lot of evidence, most of it unexamined by prior researchers. Interestingly, almost all the evidence suggests Congress was not given power to regulate campaign finance. That was a power reserved to the states and the people.
State regulations of the “Manner of holding Elections” were already quite common when the Constitution was adopted. Although the precise scope of the phrase “Manner of holding Elections” varied somewhat, its widest meaning was not broad enough to include campaign finance laws. And the Constitution’s use of the phrase was narrower than the widest meaning.
As the Constitution used the phrase, it meant to regulate the voting: that is, to specify what officer was to oversee elections, who was to do the counting, how results were to be recorded, whether open or secret ballots were used, whether the winner needed a majority or only a plurality, and the like.
That’s not all.
During the ratification fight, advocates of the Constitution were insistent in assuring the public that this power of Congress was quite narrow. They explained that the power would be exercised rarely, and only to correct serious state abuses, and that its principal purpose was to enable the federal government to preserve itself if one or more states refused to hold federal elections.
To my knowledge, the Supreme Court has never reached a direct conclusion about this evidence one way or another.
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.