Regarding my post on McCutcheon v. FEC, Seth Barrett Tillman writes:
I would think that prior to reaching the question of whether or not the First Amendment provides a defense in relation to a civil or criminal action brought under federal election law, a committed originalist would first want to entertain the question under what head of power does Congress have authority to regulate campaigns and elections conducted by state officials. Article I, Section 4, Clause 1 states:
"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 ch[oo]sing Senators."
The language here is ambiguous to the modern reader. As an original matter, it is hardly clear that this clause empowers Congress (even, in conjunction with the Necessary & Proper Clause) to regulate conduct relating to campaign speech, as opposed to granting Congress authority over election machinery run by state officials. In a recent fulsome analysis by one well-regarded legal scholar, the author suggests that this clause (as an original matter) should not be read as encompassing all election-related activities. See Robert G. Natelson, The Original Scope of the Congressional Power to Regulate Elections, 13 U. Pa. J. Const. L. 1 (2010).
So even if an originalist has doubt about the reasoning in the plurality opinion or in Thomas' concurrence in McCutcheon, an originalist might be more than comfortable with the holding.
In my own publications, I have tried to show why Teachout-Lessig-Breyer's broad-ranging corruption-based rationale for congressional power over federal elections has to overcome substantial objections based on historical events contemporaneous with the enactment of the Constitution and during the Washington administration. See, e.g., Seth Barrett Tillman, Why Professor Lessig's Dependence Corruption is not a Founding-Era Concept, 13 Election Law Journal (forthcoming circa June 2014) (peer reviewed), http://ssrn.com/abstract=2342945, and National Constitution Center Constitution Daily (Oct. 23, 2013, 7:00 AM), http://blog.constitutioncenter.org/2013/10/why-lessigs-dependence-corruption-is-not-a-founding-era-concept/.
He adds:
One more article touching on the original meaning of the Times, Places, and Manner Clause is Bradley A. Smith, Separation of Campaign and State, 81 Geo. Wash. L. Rev. 2038 (2013) (citing Natelson's article). Smith is blogging on this paper over at the Volokh Conspiracy. See http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/07/separation-of-campaign-and-state/.
Related: Larry Lessig's thoughts on McCutcheon are here: Originalists Making It Up Again: "McCutcheon" and "Corruption."
Also: Professor Smith has a further post up at Volokh Conspiracy: The Power to Regulate Elections, Not Campaigns.
Posted at 2:58 PM