The Supreme Court’s latest campaign finance decision, McCutcheon v. FEC,has sent up the predictable howls. In McCutcheon, the Court struck down, as violating the First Amendment, certain incumbent-protection rules that Members of Congress had rigged for their own election campaigns.

But no one—including the Court—has yet convincingly addressed a question even more fundamental than the First Amendment issue: On what constitutional basis does Congress have power to regulate federal campaigns at all?

Remember: The Constitution grants the federal government only enumerated powers. If Congress has acted under one of those powers, then First Amendment implications can be important. But if Congress has acted outside its enumerated powers, then the rules of jurisprudence require the courts to void the action without reaching the First Amendment issue.

And, in fact, a careful review of the Constitution and its background demonstrates that regulation of campaigns for federal office is within the state, not the federal, sphere.

The only constitutional authority even remotely applicable for congressional regulation of federal campaigns is the one the Supreme Court has relied on: Article I, Section 4, Clause 1, the “Times, Places and Manner” Clause—sometimes mislabeled the Elections Clause. It provides:

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.

The first notable aspect about this provision is what it doesn’t say: It grants power to regulate the “Times, Places and Manner of holding Elections for Senators and Representatives,” but says nothing about presidential elections. And with good reason: the “Manner of holding” presidential elections is treated in Article II, Section 1, where the “place and manner” rules are laid out in some detail and Congress is given some limited authority over the “time” of the election and the counting of electoral votes. All other power over the choice of presidential electors is explicitly left to the state legislatures (”Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .”). This is simply not an area for Congress.

The second notable aspect of the Times, Places and Manner Clause is that addresses the “Manner of holding Elections,” but says nothing about campaigns. In the Founders’ understanding, they were different areas of law.

In a 2010 article for the University of Pennsylvania Journal of Constitutional Law, I surveyed what the Founders meant when they referred to regulation of the “manner” of election. (Justice Thomas cited this article in a case last term.) Such regulation did not cover campaigns at all, unless election-day bribery be considered a form of “campaigning.” Rather, regulating the “manner” of election meant determining the rules of the vote: Whether candidates were chosen by a plurality or majority, the rules of voter registration, whether the ballot was secret or vice voce, how votes were tabulated, and so forth—the same kind of detail set forth in Article II for presidential elections.

Campaigns were regulated by a different area of the law, which the Constitution left to the states. This included the law against corrupt practices and defamation. There is no evidence—none—that the Times, Places and Manner Clause was designed to empower Congress to regulate its own campaigns.

Quite the contrary: As believers in the “public trust” theory of government, the Founders were keen to avoid the conflicts of interest that congressional regulation of federal campaigns would entail. In fact, even the very limited authority granted to Congress by the Times, Places and Manner Clause was controversial. Admirers as well as opponents of the Constitution criticized it.

In one respect, advocates of stricter regulation are correct: Because the Court has extended its First Amendment jurisprudence so tightly over state election laws and state defamation laws, the Court has impeded the states’ ability to experiment with different formulas so as to learn what works best. Perhaps the Court should lighten up in that area, while keeping Congress and the President out of the business of regulating federal campaigns.

One last note: A few advocates of greater congressional power over federal campaigns have cited my writings on public trust to argue that campaign finance laws promote fiduciary responsibility.

But a fundamental rule of fiduciary responsibility is to avoid of conflict of interest. For members of Congress to pass laws restricting their opponents’ campaigns is a huge conflict of interest. That’s one reason the Constitution leaves governance of federal campaigns to the states.


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