October 16, 2012
In a recent posting, I wrote:
[I]t is dubious whether the Constitution even gives Congress power to regulate the source and amount of campaign contributions and expenditures. The background and meaning of the Constitution’s “Time, Places and Manner Clause”—which Congress uses to justify such laws—strongly suggests not.
The Time, Places and Manner Clause is Article I, Section 4, Clause 1. It reads as follows:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.
Note that this provision grants Congress some authority to regulate congressional elections; it grants no power to regulate presidential or vice-presidential elections. The authority to oversee the choice of presidential and vice-presidential electors is reserved mostly to the states within the regulations in Article II, Section 1, and some other constitutional provisions. (A 1934 U.S. Supreme Court opinion to the contrary, Burroughs v. United States, is apparently based on the long-discredited “inherent sovereign power” doctrine, and clearly erroneous.)