[Rob Natelson is the author of the new book, The Original Constitution: What it Actually Said and Meant. To learn more about this topic, hear Rob’s podcast on Election Law and the Election Clause.]
The Constitution granted Congress only enumerated powers. Did those powers include measures of “campaign finance reform?”
Congress justifies campaign regulation as flowing from its constitutional power to regulate the “Time, Place and Manner of holding” elections for the House of Representatives and the “Time . . . and Manner of holding Elections” for the Senate. (Article I, Section 4, Clause 1.) The Supreme Court has assumed that when the Founders wrote “Manner of holding Elections” they included campaign rules, but there has been astonishingly little published research on the subject, either by the Court or by other legal writers. When the Court hears campaign finance cases, it focuses mostly on the First Amendment rather than seriously investigating whether the Constitution granted Congress the power in the first place.
I’ve just published the first article to examine the subject in depth — i.e., exactly what the Founders meant when they granted Congress power to regulate the “Manner of holding Elections.” The article appears in the University of Pennsylvania Journal of Constitutional Law. It relies on a plethora of Founding Era writings, debates, election laws, and other contemporaneous sources. It is the latest in a series of articles I’ve written on parts of the Constitution that previously suffered from inadequate research.
It turns out “Manner of holding Elections” referred to election-day mechanics, such as how votes are cast and counted and whether the winner needs a majority or only a plurality vote. It included primary as well as general elections, but not campaign regulation.
Except for election day bribery, campaign regulation was to be governed by state criminal law and state defamation law. Founders supporting the Constitution strongly represented that such matters were to be reserved almost exclusively to the states.
So under the Constitution as originally understood, campaign governance was a primarily a state, not a federal, concern.
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