Reformers who resent the existence of super PACs, and the reformers’ critics who oppose the reformers’ regulations of politics that have made super PACs necessary, should ponder Bradley A. Smith’s “Separation of Campaign and State” in the George Washington Law Review of November 2013. He argues not just that the quality of America’s civic conversation would be improved by the deregulation of politics but also that the Constitution requires this because it contains no enumerated power authorizing Congress to regulate campaigning.
The Constitution speaks only of Congress’s power to regulate the “time, place and manner” of elections. Congress has justified the regulation of political speech by conflating what Smith rightly says are two quite different things — campaigns and elections. Campaigns consist of speech and other activities to persuade the public to register particular decisions in elections. Elections are the formal processes by which those decisions are recorded.