21. FEDERAL REGULATION OF POLITICAL PARTIES: THE NEWBERRY CASE By an act of 1911 Congress imposed stringent regulations as to the amounts of money that might be expended in campaigns for nomination and election to the offices of Senator or Representative. This act provided that candidates for the Senate might not spend more than allowed by the law of the state concerned, that sum in no case to exceed $10,000. Under this act, senatorial candidates in Michigan were therefore entitled to spend only $3,750. In 1918, Truman H. Newberry, a former Secretary of the Navy, was elected to the Senate over Henry Ford, but investigations revealed that approximately $200,000 had been spent by him or on his behalf. Mr. Newberry and a number of others were thereupon indicted, tried, and convicted in federal court for violation of this act of Congress. This conviction was, however, reversed by the Supreme Court, all the judges agreeing that there had been technical errors in the trial of the case, and a bare majority holding the act in question to be unconstitutional. Proceedings to oust Mr. Newberry from his seat in the Senate were also pressed vigorously but unsuccessfully. The later elections of 1922, however, showed such strong public sentiment against the Senators who had supported him that Mr. Newberry resigned. The case is especially important as indicating the limits to congressional regulation of political party practices under the present interpretation of the Constitution. [Newberry v. United States (1921), 256 U. S. 232, 257-258, 261- Mr. Justice McReynolds delivered the opinion of the court: If it be practically true that, under present conditions, a designated party candidate is necessary for an election, -a preliminary thereto, nevertheless his selection is in no real sense part of the manner of holding the election. This does not depend upon the scheme by which candidates are put forward. Whether the candidate be offered through primary, or convention, or petition, or request of a few, or as the result of his own unsupported ambition, does not directly affect the manner of holding the election. Birth must precede, but it is no part of either funeral or apotheosis. Many things are prerequisites to elections or may affect their outcome, voters, education, means of transportation, health, public discussion, immigration, private animosities, even the face and figure of the candidate; but authority to regulate the manner of holding them gives no right to control any of these. It is settled, e.g., that the power to regulate interstate and foreign commerce does not reach whatever is essential thereto. Without agriculture, manufacturing, mining, etc. commerce could not exist; but this fact does not suffice to subject them to the control of Congress. Kidd v. Pearson, 128 U. S. 1, 32 L. ed. 346, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. 6. Election of Senators by state legislatures presupposed selection of their members by the people; but it would hardly be argued that therefore Congress could regulate such selection. In the Constitutional Convention of 1787, when replying to the suggestion that state legislatures should have uncontrolled power over elections of members of Congress, Mr. Madison said: "It seems as improper in principle, though it might be less inconvenient in practice, to give to the state legislatures this great authority over. the election of the representatives of the people in the general legislature, as it would be to give to the latter a like power over the election of their representatives in the state legislatures." Supplement to Elliot's Debates, vol. 5, p. 402. We cannot conclude that authority to control party primaries or conventions for designating candidates was bestowed on Congress by the grant of power to regulate the manner of holding elections. The fair intendment of the words does not extend so far; the framers of the Constitution did not ascribe to them any such meaning. Nor is this control necessary in order to effectuate the power expressly granted. On the other hand, its exercise would interfere with purely domestic affairs of the state, and infringe upon liberties reserved to the people. It should not be forgotten that, exercising inherent police power, the state may suppress whatever evils may be incident to primary or convention. As "each House shall be the judge of the elections, qualifications and returns of its own members," and as Congress may by law regulate the times, places, and manner of holding elections, the national government is not without power to protect itself against corruption, fraud, or other malign influ ences. The judgment of the court below must be reversed and the cause remanded for further proceedings in conformity with this opinion. [Justices Holmes, Day, Van Devanter, and McKenna concurred in this opinion, Justice McKenna reserving the question of the power of Congress under the 17th Amendment.] Mr. Chief Justice White, dissenting from the opinion, but concurring, with a modification, in the judgment of reversal: .. The provisions of §§ 2 and 3 of article 1 of the Constitution, fixing the composition of the House of Representatives and of the Senate, and providing for the election of Representatives by vote of the people of the several states, and of Senators by the state legislatures, were undoubtedly reservoirs of vital Federal power, constituting the generative sources of the provisions of § 4, clause 1, of the same article, creating the means for vivifying the bodies previously ordained. ... As without this grant no state power on the subject was possessed, it follows that the state power to create primaries as to United States Senators depended upon the grant for its existence. It also follows that, as the conferring of the power on the states and the reservation of the authority in Congress to regulate being absolutely coterminous, except as to the place of choosing Senators, which is not here relevant, it results that nothing is possible of being done under the former which is not subjected to the limitations imposed by the latter. And this is illustrated by the legislation of Congress and the decisions of this court, upholding the same. ... But it is said that, as the power which is challenged here is the right of a state to provide for and regulate a state primary for nominating United States Senators free from the control of Congress, and not the election of such Senators, therefore, as the nominating primary is one thing and the election another and different thing, the power of the state as to the primary is not governed by the right of Congress to regulate the times and manner of electing Senators. But the proposition is a suicidal one, since it at one and the same time retains in the state the only power it could possibly have, as delegated by the clause in question, and refuses to give effect to the regulating control which the clause confers on Congress as to that very power. And mark, this is emphasized by the consideration that there is no denial here that the states possess the power over the Federal subject resulting from the provision of the Constitution, but a holding that Congress may not exert, as to such power to regulate, authority which the terms of the identical clause of the Constitution confer upon it. But, putting these contradictions aside, let me test the contention from other and distinct points of view: (1) In last analysis the contention must rest upon the proposition that there is such absolute want of relation between the power of government to regulate the right of the citizen to seek a nomination for a public office and its authority to regulate the election after nomination, that a paramount government authority having the right to regulate the latter is without any power as to the former. The influence of who is nominated for elective office upon the result of the election to fill that office is so known of all men that the proposition may be left to destroy itself by its own statement. ... The large number of states which at this day have by law established senatorial primaries shows the development of the movement which originated so long ago under the circumstances just stated. They serve to indicate the tenacity of the conviction that the relation of the primary to the election is so intimate that the influence of the former is largely determinative of the latter. I have appended in the margin a statement from a publication on the subject, showing how well-founded this conviction is and how it has come to pass that in some cases, at least, the result of the primary has been in substance to render the subsequent election merely perfunctory. Under these conditions I find it impossible to say that the admitted power of Congress to control and regulate the election of Senators does not embrace, as appropriate to that power, the authority to regulate the primary held under state authority. [Justices Pitney, Brandeis, and Clarke concurred in this dissent, although filing a separate dissenting opinion.] 22. FEDERAL CORRUPT PRACTICES ACT The necessity of regulating in some manner the conduct and financing of political campaigns has long been recognized, and most of the states have passed legislation dealing with these matters in more or less detail. Although Congress does not have power to regulate the practices of political parties as such, it is empowered by the Constitution to regulate the manner of electing members of Congress. Acting under this and other authority, Congress in 1907 prohibited campaign contributions from corporations, in 1910 limited the amounts that might be spent in election campaigns of Representatives and required publicity of all receipts and expenditures, and in 1911 extended these provisions to Senators and to campaigns for nomination. The Act of 1911 was declared unconstitutional in 1921, hence Congress in 1925 passed a new act, containing in revised form the substance of all these previous acts that was clearly within its power. This new act was passed as a rider to the Postal Salary Increase Act of that year, but is referred to as the Federal Corrupt Practices Act. [U. S. Code of Laws in force Dec. 6, 1926, ch. 8. U. S. Statutes at Section 241. Definitions. - When used in this chapter-(a) The term "election" includes a general or special election, and, in the case of a Resident Commissioner from the Philippine Islands, an election by the Philippine Legislature, but does not include a primary election or convention of a political party; (b) The term "candidate" means an individual whose name is presented at an election for election as Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, whether or not such individual is elected; (c) The term "political committee" includes any committee, association, or organization which accepts contributions or makes expenditures for the purpose of influencing or attempting to influence the election of candidates or presidential and vice presidential electors (1) in two or more States, or (2) whether or not in more than one State if such committee, association, or organization (other than a duly organized State or local committee of a political party) is a branch or subsidiary of a national committee, association, or organization; (d) The term "contribution" includes a gift, subscription, loan, advance, or deposit, of money, or anything of value, and includes a contract, promise, or agreement, whether or not legally enforceable to make a contribution; (e) The term "expenditure" includes a payment, distribution, loan, advance, deposit, or gift, of money, or any thing of value, and includes a contract, promise, or agreement, whether or not legally enforceable, to make an expenditure; (f) The term "person" includes an individual, partnership, committee, association, corporation, and any other organization or group of persons; (g) The term "Clerk" means the Clerk of the House of Representatives of the United States; (h) The term "Secretary" means the Secretary of the Senate of the United States; (i) The term "State" includes Territory and possession of the United States. 242. Chairman and treasurer of political committee; duties as to contributions; accounts and receipts.- (a) Every political committee shall have a chairman and a treasurer. No contribution shall be accepted, and no expenditure made, by or on behalf of a political committee for the purpose of influencing an election until such chairman and treasurer have been chosen. (b) It shall be the duty of the treasurer of a political committee to keep a detailed and exact account of (1) All contributions made to or for such committee; (2) The name and address of every person making any such contributions, and the date thereof; (3) All expenditures made by or on behalf of such committee; and |