Brad Smith, former FEC Commissioner and (retired) professor of law at Capital University, has long been one of the major advocates for the view that much of campaign-finance regulation violates the First Amendment. In an amicus brief in the NRSC v. FEC case on party-coordinated expenditures, the Institute for Free Speech, which Brad founded and chairs, along with the Manhattan Institute, now takes the position that the Elections Clause, which is the source of Congress’ power to regulate campaign finance, does not permit Congress to regulate political campaigns at all, as opposed to the voting process itself.

The Elections Clause, located in Article I, Section 4 of the Constitution, states that “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”. Brad argues that the “time, place, and manner of holding Elections” does not include the campaign process.

I want to point some of the consequences, were this position to be accepted. Because states only have power to regulate national elections through the Elections Clause, this position would mean no government would be able to regulate the campaign process for federal elections. It would seem to mean that even congressional regulation that requires disclosure of the source of large (or any) campaign contributions would be unconstitutional. Legislatures could not ban or regulate direct contributions of unlimited amounts from the general treasury of corporations or unions (current federal law bans those contributions in federal campaigns).

I don’t think there’s much the chance the Court would endorse this position. But it’s worth considering the consequences were the Court to do so.