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Originalism and McCutcheon Part III: Does Congress Have Power to Regulate Campaign Contributions?

For the first two posts in this series, see here and here.

My last post on originalism and McCutcheon will address whether Congress has the power to pass laws that restrict campaign contributions. This is a complicated area and one that I have not studied. So take what I say with some caution.

There are at least two issues: regulations of campaign contributions as to congressional elections and as to presidential elections. (One might, of course, draw further distinctions, such as those relating to contributions to political parties or for primaries.)

As to congressional elections, the Constitution allows Congress to regulate “the Times, Places and Manner of holding Elections for Senators and Representatives.” This might allow regulations of campaign contributions, but it has also been argued that this only covers elections, not campaigns. Bradley Smith writes:

Legal statutes and texts in the 18th century frequently discussed the “time, place and manner of election.” Rob Natelson’s extensive historical research finds that these statutes encompassed the times, places and mechanics of voting, registration lists, districting, qualifications of electors and candidates, prohibitions on misconduct at the polls, and the rules of decision (i.e. plurality or majority vote). They did not encompass the conduct of the campaign preceding the election.

Smith derives further support for this conclusion from a comparison of the time, place and manner language with the more limited language allowing Congress to determine the “Time of chusing” the electoral college.”

Why [does this provision] not [include] “place” and “manner”? Because these are specifically provided for in detailed instructions on the electoral college. If, however, “manner” was intended to include events leading up to the election–that is to say, the campaign and other events not included in the detailed instructions on operation of the Electoral College-then we would have expected the “Manner” clause to appear in Article II as well as Article I.

Congress’s power to regulate campaign contributions as to presidential elections is considerably weaker. The Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” This suggests that the power lies with the states, not Congress. Congress is given power, but only limited authority as to the Time of chusing the Electors, and the Day on which they shall give their Votes.

It is not clear how Congress can regulate campaign contributions as to presidential elections. Various judges have simply asserted that they can do so, such as Justice Black who wrote in Oregon v. Mitchell “it is the prerogative of Congress to oversee the conduct of presidential and vice-presidential elections and to set the qualifications for voters for electors for those offices. It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections.” 400 U.S. 112, 124 (1970). Similarly, Judge Posner wrote that “Article II, §1 . . . has been interpreted to grant Congress power over Presidential elections coextensive with that which Article I ,§4 grants it over congressional elections,” citing to Justice Sutherland’s opinion in Burroughs v. United States.

Of course, one might attempt to justify congressional authority under the Necessary and Proper Clause or the regulation of commerce, but these bases seem quite weak.

In the end, I don’t have a firm position on these matters, not having studied them. But it does seem clear that there is at least a plausible basis that Congress lacks authority to regulate campaign contributions as to congressional elections and an even stronger one as to presidential elections.

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