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Why federal campaign finance disclosure laws are unconstitutional

Why federal campaign finance disclosure laws are unconstitutional

This article originally appeared in The Hill.

Many on the left are campaigning to “overturn Citizens United.” By this they mean they want to reverse the portion of Citizens United v. Federal Election Commission in which the Supreme Court upended a federal ban on corporations participating in candidate elections independently of the candidates’ campaigns.

The effect of the court’s ruling is to allow citizens to utilize the corporate form when participating in politics. By an accurate reading of the Constitution, the ruling was correct—not merely because contributions are protected by the First Amendment, but for a more fundamental reason: The Constitution, as originally understood, grants Congress no power to govern political campaigns. Although it does grant Congress some authority over the mechanics of congressional electionsregulation of campaigns was reserved to the states.

But Citizens United included a second decision, one rarely mentioned. In this part of the case, the court upheld federal laws requiring contributors to political ads to publicly reveal their names.

Unlike the first ruling, the second was a constitutional mistake. Although the court has since reaffirmed its position, it should promptly reconsider.

At the heart of the court’s error is the assumption that political advertising is an example of what the First Amendment calls “the freedom of speech.” In fact, it is what the First Amendment calls “the freedom of the press.” The distinction is crucial.

When the First Amendment was ratified, freedom of speech was exercised in person, so the speaker’s identity was almost always known. Freedom of the press, was exercised through a medium that enabled the author to remain anonymous.

The founders did not have electronic media: Their media were pamphlets, letters, posters, handbills, and newspapers. But the nature of the medium is irrelevant to the meaning of the First Amendment: Its phrase “freedom of the press” inherently included the right of the author to conceal his identity.

We know this, in part, because the founding-era records contain statements explicitly saying so. Writers on freedom of the press staunchly defended an author’s right to privacy. They contended that privacy enabled an argument to be considered on its merits without regard to the popularity of the author. Privacy encouraged contributions from the timid and the vulnerable. Privacy protected authors and their families from retaliation. Privacy enabled a person to participate in public debate without public debate taking over his or her life.

We know this also from how freedom of the press was exercised during the Founding Era. Writers on political subjects almost always concealed their true names by using pen names or not signing at all. The Federalist Papers were the most celebrated example of the dominant custom.

There was really only one limit to the right to author privacy. If a text was defamatory, treasonable, or otherwise represented a crime or civil wrong, a prosecuting attorney could insist that the media outlet reveal the author’s name. Otherwise, the author’s identity was no one’s business.

An incident that occurred in 1782 is illustrative.

An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor, another writer accused the editor of “treachery.”

In response, the editor explained that the governor had indeed asked the editor for the critic’s identity, but only (said the governor) “if you are at liberty to mention his name.”

In response to the governor’s request, the editor asked the author whether the editor had permission to reveal his identity. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor comply with the governor’s request.

So not even an editor—much less the government—could disclose the name of an author who wished to remain anonymous. And if the author had not been consulted, anonymity was assumed.

The founders would have found the congressional law mandating disclosure of contributors to political advertising to be a gross—and very dangerous—violation of the First Amendment. 

Get Members of Congress Out of the Business of Rigging Campaign Rules

Get Members of Congress Out of the Business of Rigging Campaign Rules

Rob at James Madison's home in Virginia
Rob at James Madison's home in Virginia

The Supreme Court’s latest campaign finance decision, McCutcheon v. FEC, has sent up the predictable howls. In McCutcheon, the Court struck down, as violating the First Amendment, certain incumbent-protection rules that Members of Congress had rigged for their own election campaigns.

But no one—including the Court—has yet convincingly addressed a question even more fundamental than the First Amendment issue: On what constitutional basis does Congress have power to regulate federal campaigns at all?

Remember: The Constitution grants the federal government only enumerated powers. If Congress has acted under one of those powers, then First Amendment implications can be important. But if Congress has acted outside its enumerated powers, then the rules of jurisprudence require the courts to void the action without reaching the First Amendment issue.

And, in fact, a careful review of the Constitution and its background demonstrates that regulation of campaigns for federal office is within the state, not the federal, sphere.

The only constitutional authority even remotely applicable to congressional regulation of federal campaigns is the clause the Supreme Court has relied on: Article I, Section 4, Clause 1, the “Times, Places and Manner” Clause—sometimes mislabeled the Elections Clause. It provides:

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.

The first notable aspect about this provision is what it doesn’t say: It grants power to regulate the “Times, Places and Manner of holding Elections for Senators and Representatives,” but says nothing about presidential elections. And with good reason: the “Manner of holding” presidential elections is treated in Article II, where the “place and manner” rules are laid out in some detail and Congress is given some limited authority over the “time” of the election and the counting of electoral votes. All other power over the choice of presidential electors is explicitly left to the state legislatures (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .”). This is simply not an area for Congress.

The second notable aspect of the Times, Places and Manner Clause is that addresses the “Manner of holding Elections,” but says nothing about campaigns. In the Founders’ understanding, they were different areas of law.

In a 2010 article for the University of Pennsylvania Journal of Constitutional Law, I surveyed what the Founders meant when they referred to regulation of the “manner” of election. (Justice Thomas cited this article in a case last term.) Such regulation did not cover campaigns at all, unless election-day bribery be considered a form of “campaigning.” Rather, regulating the “manner” of election meant determining the rules of the vote: Whether candidates were chosen by a plurality or majority, the rules of voter registration, whether the ballot was secret or vice voce, how votes were tabulated, and so forth—the same kind of detail set forth in Article II for presidential elections.

In the Founders’ understanding, the regulation of the “manner of election” and the governance of campaigns were distinct areas of law. The latter area included rules against corrupt practices and defamation, and the Constitution left those topics to the states to govern. There is no evidence—none—that the Times, Places and Manner Clause was designed to empower Congress to regulate its own campaigns.

Quite the contrary: As believers in the “public trust” theory of government, the Founders were keen to avoid the conflicts of interest that congressional regulation of federal campaigns would entail. In fact, even the very limited authority granted to Congress by the Times, Places and Manner Clause was controversial. Admirers as well as opponents of the Constitution criticized it.

In one respect, advocates of stricter regulation are correct: Because the Court has extended its First Amendment jurisprudence so tightly over state election laws and state defamation laws, the Court has impeded the states’ ability to experiment with different formulas so as to learn what works best. Perhaps the Court should lighten up in that area, while keeping Congress and the President out of the business of regulating federal campaigns.

One last note: A few advocates of greater congressional power over federal campaigns have cited my writings on public trust to argue that campaign finance laws promote fiduciary responsibility.

But a fundamental rule of fiduciary responsibility is avoiding conflict of interest. For members of Congress to pass laws restricting their opponents’ campaigns is a huge conflict of interest. That’s one reason the Constitution leaves governance of federal campaigns to the states.