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September 19th, 2010

Con Congress Regulate Campaign Finance?

By Nathan Tucker

The short answer is yes, but only in the District of Columbia and other federal territories where the federal government has the authority to regulate for the general welfare much like state governments do in their jurisdictions.  But outside of that quite limited exception, Congress is without the specific, enumerated power to regulate money in federal elections.

While much of the contention over federal campaign finance regulations have focused on First Amendment rights, such a debate wrongly concedes that Congress has the power to regulate in this area so long as it refrains from infringing on free speech.  Rather, the very first question every piece of legislation must satisfy is whether or not Congress was granted the constitutional power to enact it.

The stated purpose of federal campaign finance laws is to “reform the financing of campaigns for election to Federal office” in order to prevent the “corruption and the appearance of corruption” in government and “equalize the relative ability of all citizens to affect the outcomes of elections.”  As laudable as that goal may be, a disputed proposition, Congress simply does not have the power to pursue it.

Congress does have the power, under Section 4 of Article 1 of the Constitution, to “make or alter” state laws regulating the “times, places and manner of holding Elections for Senators and Representatives.”  The point of this provision was to provide for uniformity throughout the country as to the actual act of casting a ballot, and was intended to prevent the states from preventing federal elections from taking place.

As Alexander Hamilton noted in Federalist No. 60, it did not even include the power to regulate the “qualifications of the persons who may choose [i.e., the franchise] or be chosen [i.e., candidates].”  If it did, Congress could have simply extended the franchise to blacks, women, and eighteen-to-twenty-year-olds without the need to pass the Fifteenth, Nineteenth and Twenty-Sixth Amendments, respectfully.

The Supreme Court, in Newberry v. United States (1921), struck down a federal campaign finance law because “we find no support in reason or authority for the argument that because the officers were created by the Constitution, Congress has some indefinite, undefined power over elections for Senators and Representatives not derived from [Article i] Section 4.”

The justices noted that Congress’ authority over the time, place, and manner of Congressional elections did not extend to those things that are “prerequisites to elections or [that] may affect their outcomes—voters, education, means of transportation, health, public discussion, immigration, private animosities, even the face and figure of the candidate…”  If the Constitution actually granted Congress such a power, the justices wrote, “[t]he history of the times indicate beyond a reasonable doubt that…it would not have been ratified.”

The Court stressed that Congress could, under regulating the manner of actually casting a ballot, prevent voter fraud and intimidation.  Additionally, it “should not be forgotten that, exercising inherent police power, the state may suppress whatever evils may be incident to primary or convention” or general election.

Finally, Article 1, Section 5 of the Constitution states that “each house shall be the judge of the elections, qualifications and returns of its own members.”  Congress can, as it famously did in the case of Congressman Adam Powell, Jr. (the man who preceded Charlie Rangel and whose son wants to succeed him), refuse to seat a Senator or Representative it believes is corrupt.  The Court concluded, therefore, that “the national government is not without power to protect itself against corruption, fraud, or other malign influences.”

In addition to its limited ability to regulate the actual act of voting for senators and representatives, Congress has the extremely narrow authority under Article II, Section 1 to “determine the time of choosing the [presidential] electors and the day on which they shall give their votes; and which day shall be the same throughout the United States.”

That’s it—the only power Congress has over presidential elections is picking the day.  Article II, Section 1 expressly entrusts the manner of presidential elections to the exclusive jurisdiction of the states, and the place (“meet in their respective states”) is specified by the Twelfth Amendment.  This was understood by the Supreme Court in McPherson v. Blacker (1892), which held that “the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”

In short, the power to regulate money in politics, if it is to be exercised at all, belongs with the states.  The federal government has no authority in this area at all, and it is past due for both Congress and the courts to reaffirm this.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

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