Source of Federal Authority for Restricting Contributions to Federal Candidates

A commenter asks what I see as the source of federal authority for restricting contributions to federal candidates. The Court’s answer as to Senators and Representatives has generally been Article I, § 4, which says that “the Congress may at any time by Law make or alter [Regulations of the Times, Places and Manner of holding Elections for Senators and Representatives].” Restricting the conduct of people who are running for federal office, the theory goes, involves the regulation of the “Manner of holding Elections.” But I’m not sure whether this is right — “Manner of holding Elections” — could be used to refer to the manner of actually recording and counting the votes, and not the manner of running campaigns aimed at persuading voters. And, as the Court has recognized, this doesn’t speak to Presidential elections at all.

Rather, the better explanation, I think, is one that would build on the argument of Justice Sutherland — a supporter of fairly strong judicial enforcement of constraints on federal power — as to Presidential campaigns, in Burroughs & Cannon v. United States (1934). The President has the duty (Article II, § 3) to take care that the laws are faithfully executed, as well as other duties. The Congress has various powers, which the Constitution contemplates will be implemented in the interests of the legislators’ employers — the public.

Article I, section 8, clause 18 provides that Congress has the power to “make all Laws which shall be necessary and proper for carrying into Execution” all the powers of the Congress and the Presidency. I think that barring behavior that poses a substantial risk of being tantamount to bribery — and I do think that contributions pose such a risk (see Part III of this article) — is indeed “necessary and proper,” at least under the interpretation of that clause given in McCulloch v. Maryland (1819), to decrease the risk that legislative and executive action will be influenced by improper factors. Indeed, I think the enumerated power to limit campaign contributions is precisely the same enumerated power that justifies bans on outright bribes of legislators and executive officials.

Of course, the exercise of this power — like the exercise of other powers, such as the power to regulate commerce among the states, the power to make laws for D.C., the power to regulate the post office, and more — is subject to the First Amendment. Likewise, states’ exercise of their powers to legislate on all subjects they please (state governments are generally not constitutionally defined as governments of expressly enumerated powers) is subject to the First Amendment. The First Amendment, in my view, imposes some limits on the regulation of campaign contributions (and broad limits on the regulation of independent expenditures). But the commenter asked about the enumerated power question, so that’s what I’m trying to answer in this post.