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.

The Original Constitution

Get the New Book Today!

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.


Concordia res parvae crescunt


Small things grow great by concord...

Tenth Amendment Center


"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."


FOLLOW US

Get in Touch

7 + 5 =


MAIL:
PO BOX 13458
Los Angeles, CA 90013


PHONE:
213.935.0553

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

LEARN MORE

01

Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles

02

Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog

03

State of the Nullification Movement

108 pages. History, constitutionality, and application today.

get the report

01

Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty

02

maharrey minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens.

maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues – history, and application today

TENTHER ESSENTIALS

Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!

JOIN TAC

01

The 10th Amendment

History, meaning, and purpose – the “Foundation of the Constitution.”

10th Amendment

03

Nullification

Get an overview of the principles, background, and application in history – and today.

nullification