Does Congress really have authority to regulate campaign finance?

[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.

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Reading the Constitution: What it told us about Congress

Unlike some both on the right and the left, I don’t think the reading of the Constitution in Congress was a purely symbolic or useless endeavor. It was quite evident that some of the readers were seeing the sections they read for the first time in a very long time, if ever. So it served an educational function for members of Congress.

The reading was educational for observant members of the public, too. The way some Members stumbled over the words—during an event they knew was going to be telecast, and for which they presumably had prepared—tended to show (1) how unfamiliar they were with the text and (2) how inarticulate and mentally-clumsy some of them appear when not regurgitating the “talking points” they have repeated a thousand times before.

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Confused about a constitutional phrase?

One of the most neglected tools for understanding the Constitution is also one of the most important: The Law of the 18th century.

The Constitution is a legal document. It was written mostly by lawyers. It was explained to the ratifying public mostly by lawyers. And that public was exceptionally well-versed in law: As Edmund Burke pointed out in his 1775 speech on Reconciliation with America, “In no country perhaps in the world [as America] is the law so general a study.” And while most of the Constitution is written in straightforward lay language, it does contain some important legal terms of art.

Yet very few writers on the Constitution – even law professors – have made much of an effort to access 18th century law.

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The Feds’ Nosy Survey

The federal government may not be able to balance its budget or even pass an appropriation bill on time, but it certainly can tell other people what to do.

The U.S. Census Bureau is now sending out an “American Community Survey” demanding that randomly selected citizens answer personal questions about themselves. With their usual sense of discretion, the feds include a line in the cover letter saying you are violating federal law if you don’t’ respond.

A reader sent me the questionnaire. I’m pretty jaded where the federal government is concerned, but even I found the arrogance astounding. In addition to demanding the usual data for the “diversity” police (such as the race of everyone in the home) the questions include

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Constitutional Breakdown

How the GOP-Dem Tax and Spend Compromise Throttles the Voters’ Will

The impending taxing and spending compromise between congressional Republicans and Democrats and the Obama administration demonstrates how the federal constitutional system has broken down. And how the breakdown can sabotage democracy.

Under the emerging terms, as reported in the press, the Republicans will receive at least a temporary extension of the Bush-era tax cuts for all Americans. The Democrats will win additional spending on unemployment insurance and other items.

Now think about that for a minute: We have just gone through a national election in which the voters sent two messages loud and clear: (1) curb spending and (2) cut the deficit.

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TSA Searches and the 4th Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
– U.S. Constitution, Amendment IV

A precipitating cause of the American Revolution was the decision of the British to institute random searches using “writs of assistance” or “general warrants.” Rather than specifying “the place to be searched” and the “persons or things to be seized,” these warrants empowered authorities dig for contraband whenever and wherever they suspected it might be present.

The random and intrusive searches engaged in by federal TSA officers comprise, in other words, the sort of behavior the Fourth Amendment was designed to prevent.

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