Are federal campaign finance laws constitutional?
05. Oct, 2009 
12 Comments
by Rob Natelson
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.
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.
Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar. (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution.
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What I don’t get is how people in DC ignore these simple words: “Congress shall make no law…”
I saw firsthand how McCain/Feingold actually limited the ability of the people to mount an offensive against the establishment. There were so many things that we wanted to try in the ‘08 campaign that were out of bounds according to campaign finance reform. In the end, just another example of how the promise of justice and balance is given by the ruling elite in DC, while the real result is further fortification of their hammerlock on the people.
McCain/Feingold is a great example of how establishment politicians on both sides of the aisle work quite hard to ensure that your liberty is restricted.
As a side note to concern about the constitutionality of campaign finance laws, please consider the following. While I agree that federal campaign finance laws are unconstitutional, the problem is this. The reason that this issue is a major concern for many people, including state sovereignty-ignorant state and federal lawmakers, is that they don’t understand that the states have more constitutional authority to serve the people than the Oval Office and Congress.
The bottom line is that the voters must wise up to the corrupt federal government’s ongoing usurping of state powers and destroy the phony powers now associated with all three branches of the federal government.
Well put, B.
Has no one ever heard of the Elastic Clause? It's a subtle part of Article One of the Constitution that allows Congress to make any law deemed "necessary and proper" and has shown to trump the 9th and 10th amendments for the most part. So you may not like it, but this part of the Constitution probably does make these laws Constitutional.
That's a major mis-representation of the necessary and proper clause. But, it's a common thing to hear from people….especially when government controls our education system.
If you're interested in the founders version of the necessary and proper clause – and not the politicians and their friends in black robes, check out the following post:
http://blog.tenthamendmentcenter.com/2009/09/misu...
Michael, the link you posted doesn't work but if you have another source I'd love to check it out. Also, not to be technical but when I was referring to the necessary and proper clause I made no reference to the founders' intent… I was simply stating what it has grown to become (due to Congressional manipulation or otherwise). Besides, so much of what the founders intended for our nation has changed. The US wasn't intended to be a direct democracy but that is what we have become (unfortunately). anyway, I'd still like to learn more about other interpretations of the elastic clause if you have other links. Thanks!
Thanks for the good information. I couldn’t agree more!