James Clark McReynolds

“ I concur in the judgment reversing the conviction of plaintiffs in error, but upon grounds fundamentally different from those adopted by the majority: my view being that there is no constitutional infirmity in the act of Congress that underlies the indictment, but that there was an error in the submission of the case to the jury that calls for a new trial.
The constitutional question is so important that it deserves treatment at length. ”

“ There can be no doubt when the limitations as to expenditure which the statute imposed are considered in the light of its context and its genesis, that its prohibitions on that subject were intended, not to restrict the right of the citizen to contribute to a campaign, but to prohibit the candidate from contributing and expending or causing to be contributed and expended, to secure his nomination and election a larger amount than the sum limited as provided in the statute. ”

“ To safeguard the final elections while leaving the proceedings for proposing candidates unregulated, is to postpone regulation until it is comparatively futile. And Congress might well conclude that, if the nominating procedure were to be left open to fraud, bribery, and corruption, or subject to the more insidious, but (in the opinion of Congress) nevertheless harmful, influences resulting from an unlimited expenditure of money in paid propaganda and other purchased campaign activities, representative government would be endangered. ”

“ If this government is anything more than a mere aggregation of delegated agents of other states and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. ”

“ The election of President offers an illustration of the filching of actual power away from the electors in whom it is vested by law. When James Russell Lowell, a Republican elector for Massachusetts in 1876, was urged to exercise his independence and vote for Tilden, he declined, saying that, 'whatever the first intent of the Constitution was, usage had made the presidential electors strictly the instruments of the party which chose them.' The Constitution remains unchanged, yet presidential electors recognize that they have been stripped of all discretion. ”

“ The state Legislatures are to choose the senators. Without a Senate there can be no Congress. The state Legislatures are also to direct the manner of choosing the President. Unless, therefore, there are state Legislatures to direct that manner, no President can be chosen. The same observation may be made as to the House of Representatives, since, as they are to be chosen by the electors of the most numerous branch of each state Legislature. If there are no state Legislatures, there are no persons to choose the House of Representatives. ”

“ It is true that the plenary reservation in Congress of the power to control the states in the exercise of the authority to deal with the times, places, and manner of electing Senators and Representatives, as originally expressed in the Constitution, caused much perturbation in the conventions of the several states which were called upon to consider ratification, resulting from the fear that such power to regulate might be extended to and embrace the regulation of the election of the members of the state Legislatures who were to exercise the power to elect Senators. ”

“ But if I am wrong thus far-if the word 'elections' in article I, section 4, of the Constitution must be narrowly confined to the single and definitive step described as an election at the time that instrument was adopted-nevertheless it seems to me too clear for discussion that primary elections and nominating conventions are so closely related to the final election, and their proper regulation so essential to effective regulation of the latter, so vital to representative government, that power to regulate them is within the general authority of Congress. ”

“ Under the instruction given, in every case where to the knowledge of the candidate a sum in excess of the amount limited by the statute was contributed by citizens to the campaign, the candidate, if he failed to withdraw, would be subject to criminal prosecution and punishment. So also, contributions by citizens to the expenses of the campaign, if only knowledge could be brought home to them that the aggregate of such contributions would exceed the limit of the statute, would bring them, as illustrated by this case, within the conspiracy statute and accordingly subject to prosecution. ”

“ As a result, every voter comes to the polls on the day of the general election confined in his choice to those few candidates who have received party nominations, and constrained to consider their eligibility, in point of personal fitness, as affected by their party associations and their obligation to pursue more or less definite lines of policy, with which the voter may or may not agree. As a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations have been made. ”

“ The plain words of the Seventeenthe Amendment and those portions of the original Constitution directly affected by it, should be kept in mind. Article 1, § 31:
'The Senate of the United States shall be composed of two Senators from each state, chosen by the Legislature thereof, for six years; and each Senator shall have one vote. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. ”

“ We find no support in reason or authority for the argument that because the offices were created by the Constitution, Congress has some indefinite, undefined power over elections for Senators and Representatives not derived from section 4. ”

“ It follows that one's entry upon a candidacy for nomination and election as a Senator with knowledge that such candidacy will come to naught unless supported by expenditure of money beyond the specified limit, is not within the inhibition of the act unless it is contemplated that the candidate shall have a part in procuring the excessive expenditures beyond the effect of his mere candidacy in evoking spontaneous contributions and expenditures by his supporters ”

“ For the election of Senators and Representatives in Congress is a federal function; whatever the states do in the matter they do under authority derived from the Constitution of the United States. The reservation contained in the Tenth Amendment cannot properly operate upon this subject in favor of the state governments; they could not reserve power over a matter that had no previous existence ”

“ The plaintiff in error, Newberry, was a candidate for the nomination of the Republican party as United States Senator and having been nominated at such primary became a candidate at the ensuing November election, and was returned as elected. Subsequently the indictment under which the conviction below was had was presented charging him and others in six counts with a conspiracy to commit violations of provisions of the Corrupt Practices Act relating to state nominating primaries as well as to the resulting general election. ”

“ Clearly this makes any one who abets a candidate in expending or causing to be expended excessive sums a principal offender; but it cannot change the definition of the offense itself as contained in the Corrupt Practices Act, so as to make a candidate a principal offender unless he directly commits the offense denounced. Spontaneous expenditures by others being without the scope of the prohibition, neither he nor anybody else can be held criminally responsible for merely abetting such expenditures. ”

“ I, Michigan Legislature, 1913, prohibits expenditure by or on behalf of a candidate, to be paid by him, in securing his nomination, of any sum exceeding 25 per centum of one year's compensation; and puts like limitation upon expenditures to obtain election after nomination. ”

“ Moreover, they are in no sense elections for an office but merely methods by which party adherents agree upon candidates whom they intend to offer and support for ultimate choice by all qualified electors. ”

“ Under this view the greater the public service, and the higher the character, of the candidate, giving rise to a correspondingly complete and self-sacrificing support by the electorate to his candidacy, the more inevitably would criminality and infamous punishment result both to the candidate and to the citizen who contributed. ”

“ In the nature of things it is a complex process, involving some examination of the qualifications of those from whom the choice is to be made and of those by whom it is to be made; some opportunity for the electors to consider and canvass the claims of the eligibles ”

“ These enactments had direct and immediate reference to elections by the people, and decisions sustaining them do not control the present controversy. Congress clearly exercised its power to regulate the manner of holding an election when it directed that voting must be by written or printed ballot or voting machines. ”

“ The fifth count charged a conspiracy on the part of the defendants to commit a great number, to wit, 1,000, offenses against the United States, each to consist of giving money and things of value to a person to vote for Newberry at said election, and a great number, to wit, 1,000, other offenses against the United States, each to consist of giving money and things of value to a person to withhold his vote from Henry Ford at said general election. ”

“ This prohibition extends to the expenditure and use of excessive sums of money in which the candidate actively participates, or assists, or advises, or directs, or induces, or procures. The prohibition extends not only to the expenditure and use of excessive sums of money by the candidate directly and personally, but to such use and expenditure through his agency, or procurement, or assistance. To constitute a violation of this statute knowledge of the expenditure and use of excessive sums of money on the part of the candidate is not sufficient ”

“ Upon recommendation of a minority of the Judiciary Committee this clause was eliminated and reference to section 4, art. 1, omitted from the resolution. After prolonged debate in the 61st and 62d Congresses the amendment in its present form was submitted for ratification. See Sen. Rep. 961, 61st Cong. 3d Sess; Sen. Rep. ”