The power to regulate elections, not campaigns

April 8

One who argues that the Constitution calls for a separation of campaign and state — a principle rejecting legislative regulation of political campaigns — runs immediately into an apparent obstacle. The Constitution, Art. I, Sec. 4, specifically gives Congress the power to regulate the “Times, Places and Manner of holding Elections.” Correspondingly, states have broad authority to regulate elections, and the idea of separation of campaign and state is nonsense.

This is not a trivial point, for while it is true that the power to regulate campaigns could be attributed to some other part of the Constitution — the commerce clause, for example, might be deemed to cover anything remotely connected with limits on campaign contributions and spending, and Buckley v. Valeo found the power to pay for political campaigns in the “general welfare” language of the Constitution — those other powers would not override the First Amendment speech and association clauses any more than they do its free exercise and establishment clauses, and thus pose no barrier to a structural interpretation calling for a straightforward separation of campaign and state, as does a clause specifically authorizing such regulation. Moreover, the court has in fact found the power to regulate campaigns in the “Times, Places and Manner” clause.

This power to regulate elections, however, is by no means fatal to the principle of separation of campaign and state-indeed, when juxtaposed with similar but more limited language in Article II, it ultimately undermines the notion that Congress may regulate campaigns. The problem is not the Constitution, but instead the rather obvious error the courts have made in collapsing the distinction between “campaigns” and “elections.”

In ordinary, everyday parlance people do not talk as if “campaigns” and “elections” are the same thing, any more than “pregnancy” and “birth” are one and the same. People speak of the “campaign” that leads up to “election day.” Candidates crisscross the country making “campaign” stops, not “election stops.” We understand that one who “campaigns” for office may or may not be “elected” to that office, and candidates do not mistake “campaigning” for “being elected.” Merriam Webster defines “campaign” quite differently from “election,” the former being a “connected series of operations designed to bring about a particular result,” the latter a “formal process by which voters make their political choices on public issues or candidates for public office.” The leading trade journal for political consultants, Campaigns & Elections, surely did not think its title was mere redundancy.

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. The only state supreme court ever to probe the meaning of the phrase is that of Oregon, which, in Vannatta v. Keisling (1997), examined the language of Oregon’s 1859 constitution and determined that the “manner of regulating and conducting elections” did not encompass a political campaign, but only “those events immediately associated with the act of selecting a particular candidate or … measure. The Court noted that this also seemed to be the understanding of the Connecticut Constitution of 1818, from which Oregon drew its language.

Finally, the federal Constitution itself supports this narrow reading of “Time, Places and Manner.” For while Article I uses that full phrase, Article II provides only for the “Time of chusing” electors. Why not “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. And the brief discussion of the “Times, Places, and Manner” clause at the Constitutional Convention revolved entirely around election administration, notably the submission of false returns, the holding of elections, and limitations on who was eligible to serve.

The early Supreme Court decisions interpreting the scope of the “Times, Places and Manner” clause all dealt with issues pertaining directly to voting, not to persuading fellow citizens how to vote. Thus Smith v. United States (1857) upheld the right of Congress to mandate single member districts for the House of Representatives, and the post Civil War cases dealt with issues of eligibility to vote and ballot box stuffing, fraudulent counting of votes, and physically preventing eligible voters from voting. Likewise, through World War I, lower court decisions dealt with the mechanics of voter registration and counting ballots.

Not until the 1934 decision in Burroughs v. United States did the Supreme Court find any authority in the “Times, Places and Manner” clause to regulate pre-election campaigning. The court’s analysis consisted of little more than quoting Ex Parte Yarbrough (1884) and asserting that Yarbrough stood for the power of Congress to regulate “elections.” But Yarbrough dealt with physical attacks on voters at the polls on election day. Although Burroughs quoted Yarbrough at length for the authority of the government to regulate elections, it never considered the distinction between elections and campaigning in advance of elections. Rather, it simply transposed Yarbrough’s election day regulation to the months of campaigning preceding that election. Forty years later, in Buckley, the Court simply cited Burroughs for Congress’s “very broad authority to prevent corruption in national Presidential elections.”

In fact, outside of the realm of campaign finance cases, the court has recognized a more narrow scope of the clause. In U.S. Term Limits v. Thornton, the Court noted that “the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.” In Cook v. Gralike, the court held that “[Manner] encompasses matters … notices, registration, the supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.” And last term, in Arizona v. Inter-Tribal Council of Arizona, Inc., Justice Clarence Thomas recognized, after a detailed historical discussion, that it is “difficult to maintain that the Times, Places and Manner Clause gives Congress power beyond regulating the casting of ballots and related activities.”

To be clear, then, a doctrine of separation of campaign and state, based on the common-sense understanding of “campaigns” as something different from “elections,” would require the court to overturn Burroughs and, with that, the implicit reliance of later cases (explicit in the case of Buckley) on that decision. But as Burroughs is unsupported by textualism, originalism, or a functional approach to the Constitution, and was adopted ipse dixit rather than through any reasoned process, it merits such reconsideration.

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