U.S. Supreme Court Newberry v. United States, 256
U.S. 232 (1921) Newberry v. United
States No. 559 Argued January 7, 10,
1921 Decided May 2, 1921 256
U.S. 232 ERROR TO THE DISTRICT COURT OF THE
UNITED STATES FOR THE WESTERN DISTRICT OF
MICHIGAN Syllabus 1. Section 8 of the "Federal Corrupt Practices Act" (June 25,
1910, c. 392, 36 Stat. 822; amended August 19, 1911, c. 33, 37
Stat. 25), which undertakes to limit the amount of money which any
candidate for the office of Representative in Congress or of United
States Senator shall give, contribute, expend, use, or promise, or
cause to be given, contributed, expended, used, or promised, in
procuring his nomination or election, is unconstitutional. So held as applied to a primary election of candidates for a
seat in the Senate. P. 256 U. S.
247 .

															2. The power of Congress over elections of Senators and
Representatives has its source in § 4 of Art. I of the
Constitution, which provides:

															"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 chusing
Senators."

															P. 256 U. S.
247 . Page 256 U. S. 233 3. An indefinite, undefined power in Congress over elections of
Senators and Representatives, not derived from Art. I, § 4, cannot
be inferred from the fact that the offices were created by the
Constitution, or by assuming that the government must be free from
any control by the states over matters affecting the choice of its
officers -- a false assumption, ignoring powers clearly vested in
the states under the Constitution and the federal character of the
government. P. 256 U. S.
249 .

															4. Elections within the original intendment of § 4 of Art. I
were those wherein Senators should be chosen by legislatures and
Representatives by voters possessing "the qualifications requisite
for electors of the most numerous branch of the state legislature."
Art. I, §§ 2 and 3. P. 256 U. S.
250 .

															5. The Seventeenth Amendment neither announced nor requires a
new meaning of election, and the word now has the same general
significance as it did when the Constitution came into existence --
final choice of an officer by the duly qualified electors. P. 256 U. S.
250 .

															6. Primaries are in no sense elections for 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. P. 256 U. S.
250 .

															7. The Seventeenth Amendment does not modify Art. I, § 4, the
source of congressional power to regulate the times, places, and
manner of holding elections; that section remains intact and
applicable to the election of both Representatives and Senators. P. 256 U. S.
252 .

															8. The Act of June 4, 1914, c. 103, 38 Stat. 384, providing a
temporary method of conducting the nomination and election of
Senators, sheds no light on the power of Congress to regulate
primaries and conventions. P. 256 U. S.
253 .

															9. Even if the Seventeenth Amendment gave power to regulate
primaries for the choice of senatorial candidates, its adoption did
not validate the earlier penal statute on the subject (Act of
1910-1911, supra, par. 1); an after-acquired power cannot ex propria vigore validate a statute void when enacted. P. 256 U. S.
254 .

															10. Section 2 of the Act of June 4, 1914, supra, if it
could be regarded as an attempt to regulate nominations of
Senators, based on the Amendment, would have no bearing on a
prosecution under the Act of 1910-1911 for conduct occurring after
that section expired by its own limitation. P. 256 U. S.
254 .

															11. The power to control party primaries for designating
candidates for the Senate is not within the grant of power "to
regulate the manner of holding elections" (Art. I, § 4) -- neither
within the Page 256 U. S. 234 fair intendment of the words used nor the meaning ascribed to
them by the framer of the Constitution; it is not necessary in
order to effectuate the power expressly granted (Art. I, § 8, cl.
18), and its exercise would interfere with purely domestic affairs
of the states and infringe upon liberties reserved to the people.
P. 256 U. S.
256 . Reversed. Writ of error to a conviction and sentence under an indictment
charging conspiracy to violate the Federal Corrupt Practices Act.
The case is stated in the opinion, post 256 U. S.
243 . Page 256 U. S. 243 MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

															Plaintiffs in error -- Truman H. Newberry, Paul H. King, and
fifteen others -- were found guilty of conspiring (Criminal Code, §
37) to violate § 8, Act of Congress approved June 25, 1910, c. 392,
36 Stat. 822-824, as amended by Act of August 19, 1911, c. 33, § 2,
37 Stat. 25-29 -- the federal Corrupt Practices Act, which
provides:

															"No candidate for Representative in Congress or for Senator of
the United States shall give, contribute, expend, use, or promise,
or cause to be given, contributed, expended, used, or promised, in
procuring his nomination and election any sum, in the aggregate, in
excess of the amount which he may lawfully give, contribute,
expend, or promise under the laws of the state in which he resides: Provided, that no candidate for Representative in Congress
shall give, contribute, expend, use, or promise any sum, in the
aggregate, exceeding five thousand dollars in any campaign for his
nomination and election, and no candidate for Senator of the United
States shall give, contribute, expend, use, or promise any sum, in
the aggregate, exceeding ten thousand dollars in any campaign for
his nomination and election: Provided further, that money
expended by any such candidate to meet and discharge any
assessment, fee, or charge made or levied upon candidates by the
laws of the state in which he resides, or for his necessary
personal expenses, incurred for himself alone, for travel and
subsistence, stationery Page 256 U. S. 244 and postage, writing or printing (other than in newspapers), and
distributing letters, circulars, and posters, and for telegraph and
telephone service, shall not be regarded as an expenditure within
the meaning of this section, and shall not be considered any part
of the sum herein fixed as the limit of expense, and need not be
shown in the statements herein required to be filed."

															Act No. 109, Sec. 1, 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 twenty-five percentum
of one year's compensation, and puts like limitation upon
expenditures to obtain election after nomination. Section I is
copied below. [ Footnote 1 ]

															Taken with the state enactment, the federal statute in effect
declares a candidate for the United States Senate punishable by
fine and imprisonment if (except for certain Page 256 U. S. 245 specified purposes) he give, contribute, expend, use, promise or
cause to be given, contributed, expended, used or promised in
procuring his nomination and election more than $3,750 -- one-half
of one year's salary. Under the construction of the act urged by
the government and adopted by the court below, it is not necessary
that the inhibited sum be paid, promised, or expended by the
candidate himself, or be devoted to any secret or immoral purpose.
For example, its open and avowed contribution and use by supporters
upon suggestion by him or with his approval and cooperation in
order to promote public discussion and debate touching vital
questions or to pay necessary expenses of speakers, etc., is
enough. And, upon such interpretation, the conviction below was
asked and obtained.

															The indictment charges that Truman H Newberry became a candidate
for the Republican nomination for United States Senator from
Michigan at the primary election held August 27, 1918; that, by
reason of selection and nomination therein, he became a candidate
at the general election, November 5, 1918; that he and 134 others
(who are named) at divers times from December 1, 1917, to November
5, 1918, unlawfully and feloniously did conspire, combine,
confederate, and agree together to commit the offense on his part
of willfully violating the Act of Congress approved June 25, 1910,
as amended, by giving, contributing, expending, and using and by
causing to be given, contributed, expended and used, in procuring
his nomination and election at said primary and general elections,
a greater sum than the laws of Michigan permitted and above ten
thousand dollars, to-wit, $100,000, and on the part of the other
defendants of aiding, counseling, inducing, and procuring Newberry
as such candidate to give, contribute, expend, and use or cause to
be given, contributed, expended and used said large and excessive
sum in order to procure his nomination Page 256 U. S. 246 and election. Plaintiffs in error were convicted under count
one, set out in the margin. [ Footnote 2 ] Page 256 U. S. 247 The court below overruled a duly interposed demurrer which
challenged the constitutionality of § 8, and, by so doing, we
think, fell into error.

															Manifestly, this section applies not only to final elections for
choosing Senators, but also to primaries and conventions of
political parties for selection of candidates. Michigan and many
other states undertake to control these primaries by statutes, and
give recognition to their results. And the ultimate question for
solution here is whether, under the grant of power to regulate "the
manner of holding elections," Congress may fix the maximum sum
which a candidate therein may spend, or advise or cause to be
contributed and spent by others to procure his nomination.

															Section 4, Article I, of the Constitution provides:

															"The times, places and manner of holding elections for Senators
and Representatives shall be prescribed in each state Page 256 U. S. 248 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."

															Here is the source of Congressional power over the elections
specified. It has been so declared by this Court -- Ex parte
Siebold, 100 U. S. 371 ; United States v. Gradwell, 243 U.
S. 476 , 243 U. S. 481 -- and the early discussions clearly show that this was then the
accepted opinion. The Federalist, LVIII, LIX, LX; Elliot's Debates,
vol. II, 50, 73, 311; vol. III, 86, 183, 344, 375; vol. IV, 75, 78,
211. Page 256 U. S. 249 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 § 4.

															"The government, then, of the United States can claim no powers
which are not granted to it by the Constitution, and the powers
actually granted must be such as are expressly given or given by
necessary implication." Martin v. Hunter's
Lessee , 1 Wheat. 304, 14 U. S. 326 .
Clear constitutional provisions also negative any possible
inference of such authority because of the supposed anomaly "if one
government had the unrestricted power to control matters affecting
the choice of the officers of another." Mr. Iredell (afterwards of
this Court) in the North Carolina Convention of 1788, pointed out
that the states may -- must indeed, -- exert some unrestricted
control over the federal government:

															"The very existence of the general government depends on that of
the state governments. 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. Thus it is evident that the very existence of the
general government depends on that of the state legislatures."

															Elliot's Debates, vol. IV, p. 78. See also The
Federalist XLIV. The federal features of our government are so
clear and have been so often declared that no valuable discussion
can proceed upon the opposite assumption.

															Undoubtedly, elections within the original intendment Page 256 U. S. 250 of § 4 were those wherein Senators should be chosen by
legislatures and Representatives by voters possessing "the
qualifications requisite for electors of the most numerous branch
of the state legislature." Article I, §§ 2 and 3. The Seventeenth
Amendment, which directs that Senators be chosen by the people,
neither announced nor requires a new meaning of election, and the
word now has the same general significance as it did when the
Constitution came into existence -- final choice of an officer by
the duly qualified electors. Hawke v. Smith, 253 U.
S. 221 . Primaries were then unknown. 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. General
provisions touching elections in Constitutions or statutes are not
necessarily applicable to primaries -- the two things are radically
different. And this view has been declared by many state courts. People v. Cavanaugh, 112 Cal. 674; State v.
Erickson, 119 Minn. 152; State v. Taylor, 220 Mo.
618; State v. Woodruff, 68 N.J.L. 89; Commonwealth v.
Wells, 110 Pa. 463; Ledgerwood v. Pitts, 122 Tenn.
570.

															Sundry provisions of the Constitution indicate plainly enough
what its framers meant by elections and the "manner of holding"
them:

															"The House of Representatives shall be composed of members
chosen every second year by the people of the several states."

															Art. I, § 2, cl. 1.

															"No person shall be a Representative . . . who shall not, when
elected, be an inhabitant of the state in which he shall be
chosen."

															Art. I, § 2, cl. 2.

															"When vacancies happen in the representation from any state, the
executive authority thereof shall issue writs of election to fill
such vacancies."

															Art. I, § 2, cl. 4.

															"Immediately after they [the Senators] shall be assembled in
consequence of the first election, they shall be divided as equally
as may be into three classes."

															Art. I, § 3, cl. 2.

															"No person Page 256 U. S. 251 shall be a Senator . . . who shall not, when elected, be an
inhabitant of that state for which he shall be chosen."

															Art. I, § 3, cl. 3.

															"Each House shall be the judge of the elections, returns, and
qualifications of its own members."

															Art. I, § 5, cl. 1.

															"No Senator or Representative shall, during the time for which
he was elected, be appointed to any civil office,"

															etc. Art. I, § 6, cl. 2.

															"The executive power shall be vested in a President of the
United States of America. He shall hold his office during the term
of four years, and, together with the Vice President, chosen for
the same term, be elected as follows."

															Article 2, § 1, cl. 1.

															"The President shall, at stated times, receive for his services
a compensation which shall neither be increased nor diminished
during the period for which he shall have been elected."

															Article 2, § 1, cl. 6. And provisions in the Seventeenth
Amendment are of like effect.

															The plain words of the Seventeenth Amendment and those portions
of the original Constitution directly affected by it, should be
kept in mind. Art. I, § 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. . . . And
if vacancies happen by resignation or otherwise during the recess
of the legislature of any state, the executive thereof may make
temporary appointments until the next meeting of the legislature,
which shall then fill such vacancies."

															Seventeenth Amendment:

															"The Senate of the United States shall be composed of two
Senators from each state, elected by the people thereof, for six
years, and each Senator shall have one vote. The electors in each
state shall have the qualifications requisite for electors of the
most numerous branch of the state legislatures. When vacancies
happen in the representation of any state in the Senate, the
executive authority of such state shall Page 256 U. S. 252 issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower
the executive thereof to make temporary appointment until the
people fill the vacancies by election as the legislature may
direct. This amendment shall not be so construed as to affect the
election or term of any Senator chosen before it becomes valid as
part of the Constitution."

															As finally submitted and adopted, the amendment does not
undertake to modify Art.1, § 4, the source of congressional power
to regulate the times, places, and manner of holding elections.
That section remains "intact and applicable both to the election of
Representatives and Senators." Cong.Rec. vol. 46, p. 848. When
first reported, January 11, 1911, by Senator Borah for the
Judiciary Committee, the proposed Seventeenth Amendment contained a
clause providing: "The times, places and manner of holding
elections for Senators shall be as prescribed in each state by the
legislature thereof" -- the avowed purpose being thereby to modify
§ 4, Art. I, by depriving Congress of power to regulate the manner of holding elections for Senators. (A copy of the
original resolution as presented to the Senate is in the margin.)
[ Footnote 3 ] Page 256 U. S. 253 Upon recommendation of a minority of the Judiciary Committee,
this clause was eliminated and reference to § 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. 35, 62d Cong., 1st Sess.; Cong.Rec. vol. 46, pp. 847, 851, et seq.; vol. 47, passim, and pp. 1924, 1925,
6366.

															Apparently because deemed unimportant, no counsel on either side
referred to "An act providing a temporary method of conducting the
nomination and election of United States Senators," approved June
4, 1914 (c. 103, 38 Stat. 384). To show its irrelevancy and prevent
misapprehension, the act is copied in the margin. [ Footnote 4 ] Section Page 256 U. S. 254 2, which contains the only reference to nomination of candidates
for Senator, expired by express limitation June 4, 1917, more than
a year prior to the conduct here challenged. The act has no
criminal provisions, makes no reference to the earlier statute upon
which this prosecution is founded, and sheds no light on the power
of Congress to regulate primaries and conventions. Its terms
indicate intention that the machinery for designating party
candidates shall remain under state control. But in no view can an
attempt to exercise power be treated as conclusive evidence that
Congress possesses such power. Otherwise serious discussion of
constitutional limitations must cease. Moreover, the criminal
statute now relied upon antedates the Seventeenth Amendment, and
must be tested by powers possessed at time of its enactment. An
after-acquired power cannot, ex proprio vigore, validate a
statute void when enacted. See Sutherland, Stat. Constr.,
2nd ed., vol. I, § 107.

															A concession that the Seventeenth Amendment might Page 256 U. S. 255 be applicable in this controversy, if assisted by appropriate
legislation, would be unimportant, since there is none. Section 2,
Act of June 4, 1914, had expired by express limitation many months
before Newberry became a candidate, and counsel very properly
disregarded it.

															Because deemed appropriate in order effectively to regulate the
manner of holding general elections, this Court has upheld federal
statutes providing for supervisors and prohibiting interference
with them, declaring criminal failure by election officers to
perform duties imposed by the state, and denouncing conspiracies to
prevent voters from freely casting their ballots or having them
counted. Ex parte Siebold, 100 U.
S. 371 ; Ex parte Clarke, 100 U.
S. 399 ; Ex parte Yarbrough, 110 U.
S. 651 ; In re Coy, 127 U.
S. 731 ; United States v. Mosley, 238 U.
S. 383 . 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. C. 154, 30 Stat. 836.

															Section 4 was bitterly attacked in the state conventions of
1787-1789 because of its alleged possible use to create preferred
classes and finally to destroy the states. In defense, the danger
incident to absolute control of elections by the states and the
express limitations upon the power were dwelt upon. Mr. Hamilton
asserted:

															"The truth is that there is no method of securing to the rich
the preference apprehended but by prescribing qualifications of
property either for those who may elect or be elected. But this
forms no part of the power to be conferred upon the national
government. Its authority would be expressly restricted to the
regulation of the times, the places, and the manner of elections. The qualifications of the persons who
may choose, or be chosen, as has been remarked upon other
occasions, are defined and fixed Page 256 U. S. 256 in the Constitution, and are unalterable by the
legislature."

															The Federalist, LIX, LI. The history of the times indicates
beyond reasonable doubt that, if the Constitution makers had
claimed for this section the latitude we are now asked to sanction,
it would not have been ratified. See Story on the Const.
§§ 814 et seq. Our immediate concern is with the clause which grants power by
law to regulate the " manner of holding elections for
Senators and Representatives" -- not broadly to regulate them. As
an incident to the grant, there is, of course, power to make all
laws which shall be necessary and proper for carrying it into
effect. Art. I, § 8, cl. 18. Although the Seventeenth Amendment now
requires Senators to be chosen by the people, reference to the
original plan of selection by the legislatures may aid in
interpretation.

															Who should participate in the specified elections was clearly
indicated -- members of state legislatures and those having "the
qualifications requisite for electors of the most numerous branch
of the state legislature." Who should be eligible for election was
also stated:

															"No person shall be a Representative who shall not have attained
the age of twenty-five years, and been seven years a citizen of the
Unites states, and who shall not, when elected, be an inhabitant of
that state in which he shall be chosen. . . . No person shall be a
Senator who shall not have attained, to the age of thirty years,
and been nine years a citizen of the United States, and who shall
not, when elected, be an inhabitant of that state for which he
shall be chosen."

															Two Senators were allotted to each state, and the method was
prescribed for determining the number of Representatives. Subject
to these important limitations, Congress was empowered by law to
regulate the times, places, and manner of holding the elections,
except as to the places of choosing Senators. "These words are used
without any veiled or obscure significance," but in their natural
and usual sense. Page 256 U. S. 257 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 and 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, manufacture, 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 .

															Elections 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. V, p. 402. Page 256 U. S. 258 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
influences.

															The judgment of the court below must be reversed, and the cause
remanded for further proceedings in conformity with this
opinion. Reversed. MR. JUSTICE McKENNA concurs in this opinion as applied to the
statute under consideration, which was enacted prior to the
Seventeenth Amendment, but he reserves the question of the power of
Congress under that amendment.

															[ Footnote 1 ]

															Act 109, Michigan Legislature, 1913:

															"Section 1. No sums of money shall be paid, and no expenses
authorized or incurred by or on behalf of any candidate to be paid
by him in order to secure or aid in securing his nomination to any
public office or position in this state, in excess of twenty-five
percent of one year's compensation or salary of the office for
which he is candidate: Provided, that a sum not exceeding
fifty percent of one year's salary may be expended by the
candidates for Governor and Lieutenant Governor; or where the
office is that of member of either branch of the legislature of the
state, the twenty-five percent shall be computed on the salary
fixed for the term of two years: Provided further, that no
candidate shall be restricted to less than one hundred dollars in
his campaign for such nomination. No sums of money shall be paid
and no expense authorized or incurred by or on behalf of any
candidate who has received the nomination to any public office or
position in this state in excess of twenty-five percent of one
year's salary or compensation of the office for which he is
nominated, or, where the office is that of member of either branch
of the legislature of the state, the twenty-five percent shall be
computed on the salary fixed for the term of two years: Provided, that no candidate shall be restricted to less
than one hundred dollars. No sum of money shall be paid and no
expenses authorized or incurred by or on behalf of any candidate
contrary to the provisions of this act."

															[ Footnote 2 ]

															" (COUNT ONE)" "That Truman H. Newberry, Chase S. Osborne, Henry Ford, and
William B. Simpson, before and on August 27, 1918, were candidates
for the Republican nomination for the office of Senator in the
Congress of the United States from the State of Michigan at the
primary election held in said state on that day under the laws of
said state, and Henry Ford and James Helm, before and on said
August 27, 1918, were candidates for the Democratic nomination for
the same office at said primary election; that, from said August
27, 1918, to and including November 5, 1918, said Truman H.
Newberry and said Henry Ford, by reason of their election and
nomination at said primary election, became and were opposing
candidates for election to the office of Senator in the Congress of
the United States from said State of Michigan at the general
election held in said state on said November 5, 1918 -- said Truman
H. Newberry of the Republican party and said Henry Ford of the
Democratic party -- each of said candidates having, on said August
27, 1918, and on November 5, 1918, attained to the age of thirty
years and upwards and been a citizen of the United States for more
than nine years, and each then being an inhabitant and resident of
said state, and that said Truman H. Newberry, Paul H. King [and 133
others], hereinafter called the defendants, continuously and at all
and divers times throughout the period of time from December 1,
1917, to and including said November 5, 1918, at and within said
Southern Division of said Western District of Michigan, unlawfully
and feloniously did conspire, combine, confederate and agree
together, and with divers other persons to said grand jurors
unknown, to commit an offense against the United States, to-wit,
the offense on the part of said Truman H. Newberry of willfully
violating the Act of Congress approved June 25, 1910, as amended by
the Acts of August 19, 1911, and August 23, 1912, by giving,
contributing, expending, and using and by causing to be given,
contributed, expended, and used, in procuring his nomination and
election as such Senator at said primary and general elections, a
sum, in the aggregate, in excess of the amount which he might
lawfully give, contribute, expend, or use or cause to be given,
contributed, expended, or used for such purpose under the laws of
said State of Michigan, to-wit the sum of one hundred thousand
dollars, and by giving, contributing, expending, and using and
causing to be given, contributed, expended and used in procuring
his nomination and election as such Senator at said primary and
general elections, a sum in the aggregate, in excess of ten
thousand dollars, to-wit said sum of one hundred thousand dollars,
and, on the part of said other defendants, of aiding, counseling,
inducing and procuring said Truman H. Newberry so to give,
contribute, expend, and use and cause to be given, contributed,
expended, and used said large sum of money in excess of the amounts
permitted by the laws of the State of Michigan and the said Acts of
Congress, the same to be money so unlawfully given, contributed,
expended, and used by said Truman H. Newberry and by him caused to
be given, contributed, expended, and used as such candidate for the
following and other purposes, objects, and things, to wit:"

															"Advertisements in newspapers and other publications;"

															"Print paper, cuts, plates and other supplies furnished to
newspaper publishers;"

															"Subscriptions to newspapers;"

															"Production, distribution, and exhibition of moving
pictures;"

															"Traveling and subsistence expenses of campaign managers, public
speakers, secret propagandists, field, district, and county agents
and solicitors, and of voters not infirm or disabled;"

															"Compensation of campaign managers, public speakers, and secret
propagandists, and of field, district, and county agents and
solicitors;"

															"Appropriating and converting to the use of the defendants
themselves, and each of them, large sums of money under the guise
and pretense of payment of their expenses and compensation for
their services;"

															"Rent of offices and public halls;"

															"Bribery of election officials:"

															"Unlawful assistance of election officials;"

															"Bribery of voters;"

															"Expenses and compensation of Democratic obstructionist
candidates at the primary election;"

															"Expenses and compensation of detectives;"

															"Dinners, banquet and other entertainments given to persons
believed to be influential in said State of Michigan;"

															"And no part of which said money was to be money expended by
said Truman H. Newberry, as such candidate, to meet or discharge
assessments, fees, or charges made or levied upon candidates by the
laws of said state, or for his necessary personal expenses,
incurred for himself alone, for travel and subsistence, stationery
and postage, writing or printing (other than in newspapers), or for
distributing letters, circulars, or postage, or for telegraph or
telephone service, or for proper legal expenses in maintaining or
contesting the results of either of said elections."

															"[38 distinct and separate overt acts are specified.]"

															"And so the grand jurors aforesaid, upon their oaths aforesaid,
do say that said defendants, continuously and at all and divers
times throughout the period of time in this count mentioned at and
within said division and district, in manner and form in this count
aforesaid, unlawfully and feloniously did conspire to commit an
offense against the United States, and certain of them did do acts
to effect the object of the conspiracy -- against the peace and
dignity of the United States, and contrary to the form of the
statute of the same in such case made and provided."

															[ Footnote 3 ]

															S.J.Res. 134, 61st Congress, Cong.Rec. vol. 46, p. 847.

															"Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled (two-thirds of each
house concurring therein), that in lieu of the first paragraph of §
3 of Article I of the Constitution of the United States, and in
lieu of so much of paragraph 2 of the same section as relates to
the filling of vacancies, and in lieu of all of paragraph 1 of § 4
of said Article I insofar as same relates to any authority in
Congress to make or alter regulations as to the times or manner of
holding elections for Senators, the following be proposed as an
amendment to the Constitution, which shall be valid to all intents
and purposes as part of the Constitution when ratified by the
legislatures of three-fourths of the states:"

															" The Senate of the United States shall be composed of two
Senators from each state, elected by the people thereof for six
years, and each Senator shall have one vote. The electors in each
state shall have the qualifications requisite for electors of the
most numerous branch of the state legislatures."

															" The times, places, and manner of holding elections for
Senators shall be prescribed in each state by the legislature
thereof."

															" When vacancies happen in the representation of any state in
the Senate, the executive authority of such state shall issue writs
of election to fill such vacancies: Provided, that the
legislature of any state may empower the executive thereof to make
temporary appointments until the people fill the vacancies by
election, as the legislature may direct."

															" This amendment shall not be so construed as to affect the
election or term of any Senator chosen before it becomes valid as
part of the Constitution."

															[ Footnote 4 ]

															Act of June 4, 1914, c. 103, 38 Stat. 384:

															"An act providing a temporary method of conducting the
nomination and election of United States Senators."

															" Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, that, at
the regular election held in any state next preceding the
expiration of the term for which any Senator was elected to
represent such state in Congress at which election a Representative
to Congress is regularly by law to be chosen, a United States
Senator from said state shall be elected by the people thereof for
the term commencing on the fourth day of March next
thereafter."

															"Sec. 2. That in any state wherein a United States Senator is
hereafter to be elected either at a general election or at any
special election called by the executive authority thereof to fill
a vacancy, until or unless otherwise specially provided by the
legislature thereof, the nomination of candidates for such office
not heretofore made shall be made, the election to fill the same
conducted, and the result thereof determined as near as may be in
accordance with the laws of such state regulating the nomination of
candidates for and election of members at large of the national
House of Representatives: Provided, that in case no
provision is made in any state for the nomination or election of
Representatives at large, the procedure shall be in accordance with
the laws of such state respecting the ordinary executive and
administrative officers thereof who are elected by the vote of the
people of the entire state: And, provided further, that in
any case the candidate for Senator receiving the highest number of
votes shall be deemed elected."

															"Sec. 3. That section two of this act shall expire by limitation
at the end of three years from the date of its approval."

															Approved June 4, 1914.

															MR. CHIEF JUSTICE WHITE, dissenting from the opinion, but
concurring with a modification in the judgment of reversal.

															The conviction and sentence under review were based on an
indictment charging a conspiracy to commit violation Page 256 U. S. 259 of the act of Congress known as the Corrupt Practices Act, as
made applicable to state laws dealing with state nominating
primaries for and the ensuing state elections of United States
Senators and Representatives in Congress. The case is here by
direct appeal because of the contention that primaries of that
character are not subject to the regulating power of Congress, and,
as an incident, there is involved the contention that, even if the
act of Congress was constitutional, it had been prejudicially
misconstrued. Sustaining the first of these contentions, and
therefore deciding the act to be unconstitutional, the Court
reverses, and finally disposes of the case. Although I am unable to
concur in the conclusion as to the want of power of Congress and in
the judgment of reversal as rendered, I am nevertheless of opinion
that there should be a judgment of reversal without prejudice to a
new trial because of the grave misapprehension and grievous
misapplication of the statute upon which the conviction and
sentence below were based. I state the reasons which control me as
to both these subjects.

															By an amendment to the Corrupt Practices Act of 1910, Congress,
in 1911, dealt with state primaries for the nomination of Senators
and Representatives in Congress and with the election after
nomination of such candidates (Act of June 25, 1910, c. 392, 36
Stat. 822; Act of August 19, 1911, c. 33, § 8, 37 Stat. 25, 28). At
that time, there existed in the State of Michigan a law regulating
state nominating primaries which included candidates for state
offices as well as for the Senate and House of Representatives of
the United States. These primaries were held in the month of August
in each year preceding the November general election. By that law,
the result of the primaries determined the right to have a person's
name placed as a candidate on the ballot at the general election,
and, in the case of United States Senators, Page 256 U. S. 260 provision was made for the return of the result of the primary
to the state legislature before the time when the duty of that body
to elect a Senator would arise.

															The Seventeenth Amendment to the Constitution, providing for the
election of United States Senators by popular vote, was promulgated
in May, 1913. In June, 1914, Congress, by legislation carrying out
the amendment, provided that, thereafter, Senators should be
elected by popular vote, and, where state laws to that effect
existed, made them applicable. But, evidently to give time for the
states to enact the necessary legislation substituting for election
by the legislature the method of election established by the
amendment, it was provided that, where no law for primaries by
popular vote as to Senators existed, that subject should be
controlled by the state law regulating primaries for the nomination
of Representative at Large, if provided for, and if not, by the
provisions controlling as to primaries for general state officers,
the operation of these latter provisions being expressly limited to
a term of three years (Act of June 4, 1914, c. 103, 38 Stat. 384).
Within the time thus fixed and before the election which was held
of this case, the State of Michigan, in order to conform its laws
to the amendment, modified them so as to provide for the election
of Senators by popular vote, and made the general nominating state
primary law applicable to that condition (Act No. 156, Mich. Acts
of 1915), and, by virtue of the amendment, the act of Congress, and
the state law just stated, the primary with which we are concerned
in this case was held in August, 1918.

															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 Page 256 U. S. 261 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. It is not at this moment necessary
to describe the nature of these accusations further, since it is
not questioned that the indictment charged a conspiracy to commit
crimes within the intendment of the Corrupt Practices Act, and
hence involved the question of the constitutional power of Congress
which the Court now adversely decides, and the basis for which I
now come to consider.

															As the nominating primary was held after the adoption of the
Seventeenth Amendment, the power must have been sanctioned by that
amendment, but, for the purpose of clarity, I consider the question
of the power, first from the provisions of the Constitution as they
existed before the amendment, and second in contemplation of the
light thrown upon the subject by the force of the amendment.

															The provisions of §§ 2 and 3 of Article I of the Constitution
fixing the composition of the House of Representatives and 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, cl.
1, of the same Article creating the means for vivifying the bodies
previously ordained (Senate and House) -- that is, providing:

															"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 chusing
Senators."

															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 Page 256 U. S. 262 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 limitation imposed by the
latter. And this is illustrated by the legislation of Congress and
the decisions of this Court upholding the same. See "Act
to regulate the times and manner of holding elections for Senators
in Congress," approved July 25, 1866, 14 Stat. 243; Act of May 31,
1870, 16 Stat. 144; Act of July 14, 1870, 16 Stat. 254; Act of June
10, 1872, 17 Stat. 347; Ex parte Siebold, 100 U.
S. 371 , 100 U. S. 25 L.ed. 717; Ex parte Clarke, 100 U. S. 399 ; Ex parte Yarbrough, 110 U. S. 651 ; United States v. Mosely, 238 U. S. 383 .

															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. Page 256 U. S. 263 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.

															(2) Moreover, the proposition, impliedly at least, excludes from
view the fact that the powers conferred upon Congress by the
Constitution carry with them the right "to make all laws which
shall be necessary and proper for carrying into execution the
foregoing powers" (Art. I, § 8, cl. 18), and, in doing so,
virtually disregards the previous legislative history and the
decisions of this Court sanctioning the same to which we have
referred, since that practice and those decisions unmistakably
recognize that the power under the clause in question extends to
all the prerequisite and appropriate incidents necessary to the
discharge of the authority given.

															(3) From a somewhat different point of view, the same result is
even more imperatively required. Thus, as has been seen, the
election was had under the Seventeenth Amendment to the
Constitution, providing for the election of Senators by popular
vote instead of by the state legislatures. In the resolution
providing for the passage of that amendment through Congress, as
first reported by Senator Borah on behalf of the judiciary
committee, after making the changes necessary to substitute a
provision causing Senators to be elected by popular vote, instead
of by the legislatures of the several states, the Page 256 U. S. 264 provision of § 4 of Art. I reserving to Congress the power "to
make or alter," except as to places, the regulations adopted by the
several states as to the "times, places and manner" of electing
Senators, was omitted, thus leaving all power on the subject in the
states, free from any regulating control of Congress. (S.Rep. 961,
61st Cong.3d Sess.)

															There was division, however, concerning the matter, manifested
by a proposition to amend the resolution, as reported, so as to
retain the omitted provision, thus preserving the power of Congress
as originally conferred. (Cong.Rec. vol. 46, Part I, p. 847). The
legislative situation thus created was aptly stated by Senator
Borah, referring to the report of the committee and to the
proposition (submitted by Senator Sutherland of Utah) to amend that
report and the resolution accompanying it. He said:

															"In reference to the amendment which has been suggested by the
Senator from Utah (Mr. Sutherland), it was considered at some
length before the committee. The proposition is a simple one. As
the joint resolution now stands, the times, places, and manner of
electing United States Senators is left entirely to the state. The
state may determine the rules and regulations, and the times,
places, and manner of holding elections for United States
Senators."

															"If the amendment as offered by the Senator from Utah should
prevail, then the matter would be left as it now is, subject to the
supervision and control of Congress. [ Footnote 2/1 ]"

															After much consideration, the amendment offered by Senator
Sutherland was carried. [ Footnote
2/2 ] But the reported resolution, as thus amended, did not pass
during that Congress. In the first session of the following
Congress, however, the Sixty-Second Congress, a resolution
identical in Page 256 U. S. 265 terms with the one which had been reported in the Senate at the
previous session was introduced in the House and passed the same.
[ Footnote 2/3 ] In the Senate, the
House resolution was favorably reported from the committee by
Senator Borah, [ Footnote 2/4 ]
accompanied, however, by a minority report by Senator Sutherland
[ Footnote 2/5 ] offering as a
substitute a resolution preserving the complete power of Congress,
as had been provided for in the Senate in the previous Congress,
and an amendment to the same effect offered by Senator Bristow was
subsequently adopted, [ Footnote
2/6 ] and, as thus amended, the resolution was ultimately
submitted for ratification, and, as we have seen, was ratified and
promulgated. (38 Stat. 2049.)

															When the plain purpose of the amendment is thus seen, and it is
borne in mind that, at the time it was pending, the amendment to
the Corrupt Practices Act dealing with state primaries for
nominating United States Senators which is now before us was in the
process of consideration in Congress, and when it is further
remembered that, after the passage of the amendment, Congress
enacted legislation so that the amendment might be applied to state
senatorial primaries, there would seem to be an end to all doubt as
to the power of Congress.

															It is not disputable that, originally, instructions to
representatives in state legislatures by party conventions or by
other unofficial bodies as to the persons to be elected as United
States Senators were resorted to as a means of indirectly
controlling that subject, and, thus, in a sense, restricting the
constitutional provision as to the mode of electing Senators. The
potentiality of instructions of that character to accomplish that
result is Page 256 U. S. 266 amply shown by the development of our constitutional
institutions as regards the electoral college, where it has come to
pass that the unofficial nomination of party has rendered the
discharge of its duties by the electoral college a mere matter of
form. That, in some measure, at least, a tendency to that result
came about under the constitutional direction that Senators should
be elected by the people would appear not doubtful. The situation
on this subject is illustrated by a statement in a treatise by
Haynes on Election of Senators, 1906, p. 132, as follows:

															"Notwithstanding our rigid Constitution's decree that the
senators from the several states shall be elected by 'the
legislatures thereof,' this act of the legislatures may be deprived
of nearly all of its vitality. 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. It appears that, under certain conditions, the election
of Senators by state legislatures has been and can be made an
equally perfunctory affair."

															The growth of the tendency to make the indirect result thus
stated more effective evidently was the genesis of the statutory
primary to nominate Senators. See statement concerning an
amendment to the Constitution of Nebraska on that subject as early
as 1875, in the same treatise, p. 141.

															The large number of states which at this day have by law
established senatorial primaries shows the development Page 256 U. S. 267 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
to 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, [ Footnote 2/7 ] 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 Page 256 U. S. 268 appropriate to that power, the authority to regulate the primary
held under state authority.

															(4) 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. It
is further true that articles in the Federalist and other papers
published at the time served to dispel the fear by directing
attention to the fact that the regulating power of Congress only
extended to the times, places, and manner of electing Senators, and
did not include an authority, even by implication, to deal with the
election of the state legislatures, which was a power reserved to
the states. But this only served to emphasize the distinction
between the state and federal power, and affords no ground at this
late day for saying that the reserved state power has absorbed and
renders impossible of exercise the authority of Congress to
regulate the federal power concerning the election of United States
Senators, submitted, to the extent provided, to the authority of
the states upon the express condition that such authority should be
subordinate to and controlled by congressional regulation.

															Can any other conclusion be upheld except upon the theory that
the phantoms of attenuated and unfounded doubts concerning the
meaning of the Constitution, which have long perished, may now be
revived for the purpose of depriving Congress of the right to exert
a power essential to its existence, and this in the face of the
fact that the only basis for the doubts which arose in Page 256 U. S. 269 the beginning (the election of Senators by the state
legislatures) has been completely removed by the Seventeenth
Amendment?

															I do not stop to refer to the state cases concerning the
distinction between state legislative power to deal with elections
and its authority to control primaries, as I cannot discover the
slightest ground upon which they could be apposite, since here, an
inherent federal right, and the provision of the Constitution in
dealing with it, are the subjects for consideration.

															Moreover, in passing, I observe that, as this case concerns a
state primary law imposing obligatory results and the act of
Congress dealing with the same, it is obvious that the effect of
individual action is wholly beside the issue.

															The consequence to result from a denial to Congress of the right
to regulate is so aptly illustrated by the case in hand that, in
leaving the question, I refer to it. Thus, it is stated, and not
denied, that, in the state primary in question, one of the
candidates, as permitted by the state law, propounded himself at
the primary election as the candidate for the nomination for
Senator of both the Republican and the Democratic parties. If the
candidacy had been successful as to both, the subsequent election
would have been reduced to the merest form.

															In view, then, of the plain text of the Constitution, of the
power exerted under it from the beginning, of the action of
Congress in its legislation, and of the amendment to the
Constitution, as well as of the legislative action of substantially
the larger portion of the states, I can see no reason for now
denying the power of Congress to regulate a subject which, from its
very nature, inheres in and is concerned with the election of
Senators of the United States as provided by the Constitution.

															The indictment remains to be considered. It contained six
counts. For the moment, it suffices to say that the Page 256 U. S. 270 first four all dealt with a common subject -- that is, a
conspiracy between Newberry and others named to contribute and
expend, for the purposes of the state primary and general election,
more money than allowed by the Corrupt Practices Act. 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. The sixth count charged a
conspiracy to defraud by use of the mails.

															At the trial before the submission of the case to the jury, the
court put the fifth count entirely out of the case by instructing
the jury to disregard it, as there was no evidence whatever to
sustain it. The bribery charge therefore disappeared. The second,
third, and fourth counts, dealing, as I have said, with one general
subject, were found by the court to be all in substance contained
in the first count. They were therefore, by direction of the court,
either eliminated or consolidated with the first count. Thus, as
contained in that count, the matters charged in the first four
counts were submitted to the jury, as was also the sixth count, but
the latter we need not further consider, as upon it there was a
verdict of not guilty.

															The case therefore reduces itself solely to the matters covered
in the first count. That count charged a conspiracy on the part of
the defendants, 135 in number, including Newberry, to commit an
offense against the United States -- that is, the offense on the
part of Newberry of violating the Corrupt Practices Act by giving,
contributing, expending and using and by causing to be given,
contributed, expended, and used in procuring Page 256 U. S. 271 his nomination and election as such Senator at said primary and
general elections, a sum in excess of the amount which he might
lawfully give, contribute, expend, or use, and cause to be given,
contributed, expended, or used for such purpose under the laws of
Michigan, and in excess of $10,000, to-wit, the sum of $100,000,
and on the part of the other defendants of aiding, counseling,
inducing, and procuring Newberry as such candidate to give,
contribute, expend, and use, or cause to be given, contributed,
expended, or used said large and excessive sum, in order to procure
his nomination and election.

															Conspiracy to contribute and expend in excess of the amount
permitted by the statute was, then, the sole issue, wholly
disassociated from and disconnected with any corrupt or wrongful
use of the amount charged to have been illegally contributed and
expended. As, putting out of view the constitutional question
already considered, the errors assigned are based solely upon
asserted misconstructions of the statute by the court in its charge
to the jury, we bring the statute at once into view. It provides,
so far as relevant to the case before us:

															"No candidate for . . . Senator of the United States shall give,
contribute, expend, use, or promise, or cause to be given,
contributed, expended, used, or promised, in procuring his
nomination and election, any sum, in the aggregate, in excess of
the amount which he may lawfully give, contribute, expend, or
promise under the laws of the state in which he resides: Provided, that . . . no candidate for United States
Senator shall give, contribute, expend, use, or promise any sum, in
the aggregate, exceeding ten thousand dollars in any campaign for
his nomination and election. . . ."

															Coming to deal with the statute, the court, after pointing out
in the most explicit terms that the limitation on the amount which
might be lawfully contributed and expended or caused to be
contributed and expended in Page 256 U. S. 272 the case at hand was $3,750 (that being the limitation imposed
by the laws of Michigan adopted by the statute of the United States
just quoted), then proceeded, over objections duly reserved, to
instruct as to the significance of the statute, involved in the
prohibitions (a) against giving, contributing, expending, or using,
and (b) against causing to be given, contributed, expended, or
used, money in excess of that permitted by the statute, saying on
these subjects as follows:

															(a)

															"It is important therefore that you should understand the
meaning of the language employed in this Corrupt Practices Act, and
that you should understand and comprehend the effect and scope of
the act, and the meaning of the language there employed, and the
effect and scope and extent of the prohibition against the
expenditure and use of money therein contained."

															"The words 'give, contribute, expend or use,' as employed in
this statute have their usual and ordinary significance, and mean
furnish, pay out, disburse, employ, or make use of. The term 'to
cause to be expended, or used,' as it is employed in this statute,
means to occasion, to effect, to bring about, to produce the
expenditure and use of the money."

															"The prohibition contained in this statute against the
expenditure and use of money by the candidate is not limited or
confined to the expenditure and use of his own money. The
prohibition is directed against the use and expenditure of
excessive sums of money by the candidate from whatever source or
from whomsoever those moneys may be derived."

															(b)

															"The phrase which constitutes the prohibition against the
candidate 'causing to be given, contributed, expended or used
excessive sums of money' is not limited and not confined to
expenditures and use of money made directly and personally by
himself. This prohibition extends to the expenditure and use of
excessive sums of Page 256 U. S. 273 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; neither is it sufficient to constitute
a violation of this statute that the candidate merely acquiesces in
such expenditures and use. But it is sufficient to constitute a
violation of this statute if the candidate actively participates in
doing the things which occasion such expenditures and use of money,
and so actively participates with knowledge that the money is being
expended and used."

															Having thus fixed the meaning of the prohibitions of the
statute, the court came to apply them as thus defined to the
particular case before it, saying:

															(c)

															"To apply these rules to this case: if you are satisfied from
the evidence that the defendant, Truman H. Newberry at or about the
time that he became a candidate for United States Senator, was
informed and knew that his campaign for the nomination and election
would require the expenditure and use of more money than is
permitted by law, and, with such knowledge, became a candidate, and
thereafter, by advice, by conduct, by his acts, by his direction,
by his counsel, or by his procurement he actively participated and
took part in the expenditure and use of an excessive sum of money,
of an unlawful sum of money, you will be warranted in finding that
he did violate this statute known as the Corrupt Practices
Act."

															Whether the instructions marked (a) and (b), if unexplained,
were, in view of the ambiguity lurking in many of the expressions
used therein, prejudicially Page 256 U. S. 274 erroneous I do not think necessary to consider, since I see no
escape from the conclusion that the instruction marked (c), which
made application of the view of the statute stated in the previous
passages (a) and (b), were in clear conflict with the text of the
statute, and were necessarily of a seriously prejudicial nature,
since, in substance, they announced the doctrine that, under the
statute, although a candidate for the office of Senator might not
have contributed a cent to the campaign or caused others to do so,
he nevertheless was guilty if he became a candidate or continued as
such after acquiring knowledge that more than $3,750 had been
contributed and was being expended in the campaign. The error in
the instruction plainly resulted from a failure to distinguish
between the subject with which the statute dealt -- contributions
and expenditures made or caused to be made by the candidate -- and
campaign contributions and expenditures not so made or caused to be
made, and therefore not within the statute.

															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 treat the candidacy, as did the charge
of the court, as being necessarily the cause, without more, of the
contribution of the citizen to the campaign was therefore to
confound things which were wholly different, to the frustration of
the very object and purpose of the statute. To illustrate: 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 Page 256 U. S. 275 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. 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.

															As it follows from the considerations which I have stated that
the judgment below was, in my opinion, clearly wrong, and therefore
should be reversed, it is not necessary that I should go further
and point out how cogently, under the case presented, the
illustrations just previously made apply to it. For the reasons
stated, although I dissent from the ruling of the court as to the
unconstitutionality of the act of Congress, I nevertheless think
its judgment of reversal should be adopted -- qualified, however,
so as to reserve the right to a new trial.

															[ Footnote 2/1 ]

															Cong.Rec. vol. 46, Part 1, p. 851.

															[ Footnote 2/2 ]

															Cong.Rec. vol. 46, Part 4, p. 3307.

															[ Footnote 2/3 ]

															H.Rep. No. 2, 62d Cong. 1st Sess.

															[ Footnote 2/4 ]

															Cong.Rec. vol. 47, Part 1, p. 787.

															[ Footnote 2/5 ]

															S.Rep. No. 35, 62d Cong. 1st Sess.

															[ Footnote 2/6 ]

															Cong.Rec. vol. 47, Part 2, p. 1205.

															[ Footnote 2/7 ]

															"In many Western and Southern states, the direct primary method
has been applied to the choice of United States Senators as well as
to state officers.{a} In the Southern states, victory in such a
primary, on the Democratic side, is practically the equivalent of
an election, as there is but one effective party in that section of
the country. The direct nomination of senators is generally
accomplished under voluntary party regulations, as in Alabama,
Arkansas, South Carolina, and Virginia. In other cases, however,
this method of choice has been placed under legal protection, as in
Florida (1901), Mississippi (1902), Louisiana (1906), and Texas
(1907). Some Northern states have also adopted this method of
direct nomination. Among Northern states, Wisconsin led the way in
1903, followed by Oregon in 1904, Montana in 1905, Iowa,
Washington, Nebraska, North Dakota in 1907, Illinois, Kansas, New
Jersey, Ohio, and Oklahoma in 1908. . . . In some of the states, as
in Oregon, candidates for the legislature are afforded an
opportunity to pledge themselves to vote for the party candidate
receiving the highest vote in the regular election. In other cases,
a pledge is made to vote for the candidate receiving the highest
number of votes in the primary.{b}"

															Merriam, Primary Elections, 1908, pp. 83-85.

															a. On this general topic, see the excellent treatise on
the Election of Senators, by George H. Haynes (1906), especially c.
XI.

															b. Oregon, 1904, § 13. In Washington, the candidate may pledge
himself to vote for the party choice for United States
Senator (1907, § 31). This latter is the general rule.

															MR. JUSTICE PITNEY, concurring in part.

															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. Page 256 U. S. 276 The federal Corrupt Practices Act (Act of June 25, 1910, c. 392,
36 Stat. 822, amended by Act of August 19, 1911, c. 33, 37 Stat.
25, 28) limits the amount of money that may be given, contributed,
expended, used, or promised, or caused to be given, contributed,
expended, used, or promised by a candidate for Representative in
Congress or for Senator of the United States in procuring his
nomination and election, to a sum not in excess of the amount he
may lawfully give, contribute, expend, or promise under the laws of
the State of his residence, with a proviso that, in the case of a
candidate for Representative, the amount shall not exceed $5,000,
and in the case of a candidate for Senator, shall not exceed
$10,000, in any campaign for nomination and election, and a further
proviso that any assessment, fee, or charge made or levied upon
candidates by the laws of the state, or moneys expended for the
candidate's necessary personal expenses for travel and subsistence,
stationery and postage, writing or printing (other than in
newspapers), and distributing letters, circulars, and posters, and
for telegraph and telephone service, shall not be regarded as an
expenditure or considered as a part of the sum fixed as the limit
of expense. Section 10 of the act (36 Stat. 824), renumbered as §
11 by the amendment (37 Stat. 26), prescribes fine or imprisonment
for a willful violation of any of its provisions. The act and
amendment were passed before the adoption of the Seventeenth
Amendment, providing for the election of Senators by direct vote of
the people (declared adopted May 31, 1913-38 Stat. 2049), but it is
clear -- indeed, undisputed -- that, for present purposes, they are
to receive the same construction and effect as if enacted after
adoption of the amendment.

															The present case arose out of a campaign for nomination and
election of a Senator in the State of Michigan, where a statute
(Act No. 109, § 1, Mich, Pub. Acts 1913) limits the amount of money
that may be paid, and of Page 256 U. S. 277 expenses that may be authorized or incurred by or on behalf of
any candidate to be paid by him in order to secure his nomination
to any public office in the state, to 25 percentum of one year's
salary of the office, and imposes a similar limit upon expenditures
by or on behalf of any candidate who has received the nomination.
By § 19 of the same statute, "public office" is made to apply to
any national office filled by the voters of the state, as well as
to the office of presidential elector and United States Senator.
The acts of Congress, in connection with the statute of the state,
limit the amount that a candidate for Senator of the United States
may give, contribute, expend, use, or promise, or cause to be
given, contributed, expended, used, or promised, in procuring his
nomination and election, to $3,750 in the aggregate, aside from
those expenditures that are specifically permitted without
limit.

															Plaintiffs in error were indicted and convicted in the United
States district court for a conspiracy (§ 37, Criminal Code) to
commit an offense against the United States, to-wit, the offense,
on the part of Truman H. Newberry, of willfully violating the acts
of Congress above referred to by giving, contributing, expending,
and using, and by causing to be given, contributed, expended, and
used, in procuring his nomination and election as Senator of the
United States at the primary and general elections in the year
1918, a sum in excess of the amount thus limited, to-wit, the sum
of $100,000, and on the part of the other defendants of aiding,
counseling, inducing, and procuring (§ 332, Criminal Code) said
Truman H. Newberry so to give, contribute, expend, and use, and
cause to be given, contributed, expended, and used said large sums
of money in excess of the amounts permitted, etc.; no part of which
money was to be expended for any of the purposes specifically
permitted without limit; numerous overt acts being alleged to have
been done by one Page 256 U. S. 278 or more parties defendant to effect the object of the
conspiracy.

															The averments of the indictment and the evidence at the trial
related especially to expenditures contemplated to be made, and in
fact made, to bring about Mr. Newberry's selection at a nominating
or primary election held in August, 1918, with only minor
expenditures made after that date and in contemplation of the
general election which was held in the following November. The case
is brought to this Court by direct writ of error, upon the
fundamental contention that the acts of Congress, insofar as they
assume to regulate primary elections and limit the expenditures of
money that may be made or caused to be made by a candidate therein,
are in excess of the power conferred upon Congress to regulate the
"manner of holding elections for Senators and Representatives" by §
4 of Art. I of the Constitution of the United States. This question
was raised, but not decided, in United States v. Gradwell, 243 U. S. 476 , 243 U. S.
487 -488; Blair v. United States, 250 U.
S. 273 , 250 U. S.
278 -279.

															For reasons to be stated below, I consider is erroneous to treat
the question as dependent upon the words of the cited section
alone. I will, however, first deal with that section, viewing it in
connection with other provisions immediately associated with it and
here quoted:

															"Article I. Section 1. All legislative Powers herein granted
shall be vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives."

															"Section 2. The House of Representatives shall be composed of
Members chosen every second Year by the the several states, and the
Electors in each state shall have the Qualifications requisite for
Electors of the most numerous Branch of the state legislature. . .
. " Page 256 U. S. 279 (Section 3 is superseded by the Seventeenth Amendment, which
provides:)

															"Article XVII. The Senate of the United States shall be composed
of two Senators from each state, elected by the people thereof, . .
. The electors in each state shall have the qualifications
requisite for electors of the most numerous branch of the state
legislatures. . . ."

															"Section 4. 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 chusing
Senators. . . ."

															"Section 5. Each House shall be the Judge of the Elections,
Returns, and Qualifications of its own Members. . . ."

															It is contended that Congress has no power to regulate the
amount of money that may be expended by a candidate to secure his
being named in the primary election; that the power "to regulate
the manner of holding elections," etc., relates solely to the
general elections where Senators or Representatives are finally
chosen. Why should "the manner of holding elections" be so narrowly
construed? An election is the choosing of a person by vote to fill
a public office. 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, and some method of narrowing the choice by
eliminating candidates until one finally secures a majority, or at
least a plurality, of the votes. For the process of elimination,
instead of tentative elections participated in by all the electors,
nominations by parties or groups of citizens have obtained in the
United States from an early period. Latterly, the processes of
nomination Page 256 U. S. 280 have been regulated by law in many of the states through the
establishment of official primary elections. But, in the essential
sense, a sense that fairly comports with the object and purpose of
a Constitution such as ours, which deals in broad outline with
matters of substance and is remarkable for succinct and pithy modes
of expression, all of the various processes above indicated fall
fairly within the definition of "the manner of holding elections."
This is not giving to the word "elections" a significance different
from that which it bore when the Constitution was adopted, but is
simply recognizing a content that of necessity always inhered in
it. The nature of that instrument required, as Chief Justice
Marshall pointed out in McCulloch v.
Maryland , 4 Wheat. 316, 17 U. S.
407 :

															"that only its great outlines should be marked, its important
objects designated, and the minor ingredients which compose those
objects be deduced from the nature of the objects themselves."

															It is said that § 4 of Art. I does not confer a general power to
regulate elections, but only to regulate "the manner of holding"
them. But this can mean nothing less than the entire mode of
procedure -- the essence, not merely the form, of conducting the
elections. The only specific grant of power over the subject
contained in the Constitution is contained in that section, and the
power is conferred primarily upon the legislatures of the several
states, but subject to revision and modification by Congress. If
the preliminary processes of such an election are to be treated as
something so separate from the final choice that they are not
within the power of Congress under this provision, they are for the
same reason not with within the power of the states, and if there
is no other grant of power, they must perforce remain wholly
unregulated. For if this section of the Constitution is to be
strictly construed with respect to the power granted to Congress
thereunder, it must be construed with equal Page 256 U. S. 281 strictness with respect to the power conferred upon the states;
if the authority to regulate the "manner of holding elections" does
not carry with it ex vi termini authority to regulate the
preliminary election held for the purpose of proposing candidates,
then the states can no more exercise authority over this than
Congress can, much less an authority exclusive of that of Congress.
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; hence, if the power was not delegated to the United
States, it must be deemed to have been reserved to the people, and
would require a constitutional amendment to bring it into play -- a
deplorable result of strict construction.

															But if I am wrong in this, and the power to regulate primary
elections could be deemed to have been reserved by the states to
the exclusion of Congress, the result would be to leave the general
government destitute of the means to insure its own preservation
without governmental aid from the states, which they might either
grant or withhold according to their own will. This would render
the government of the United States something less than supreme in
the exercise of its own appropriate powers, a doctrine supposed to
have been laid at rest forever by the decisions of this Court in McCulloch v.
Maryland , 4 Wheat. 316, 17 U. S. 405 et seq., 19 U. S. Virginia, 6 Wheat. 264, 19 U. S. 381 , 19 U. S. 387 , 19 U. S. 414 ,
and many other decisions in the time of Chief Justice Marshall and
since.

															But why should the primary election (or nominating convention)
and the final election be treated as things so separate and apart
as not to be both included in § 4 of Page 256 U. S. 282 Article I? The former has no reason for existence, no function
to perform, except as a preparation for the latter, and the latter
has been found by experience in many states impossible of orderly
and successful accomplishment without the former.

															Why should this provision of the Constitution -- so vital to the
very structure of the government -- be so narrowly construed? It is
said primaries were unknown when the Constitution was adopted. So
were the steam railway and the electric telegraph. But the
authority of Congress to regulate commerce among the several states
was extended over these instrumentalities, because it was
recognized that the manner of conducting the commerce was not
essential. And this Court was prompt to recognize that a
transportation of merchandise, incidentally interrupted for a
temporary purpose, or proceeding under successive bills of lading
or means of transport, some operating wholly intrastate, was
nonetheless interstate commerce if such commerce was the practical
and essential result of all that was done. The Daniel
Ball , 10 Wall. 557, 77 U. S. 565 ; Southern Pacific Terminal Co. v. Interstate Commerce
Commission, 219 U. S. 498 , 219 U. S.
526 -527; Ohio Railroad Commission v.
Worthington, 225 U. S. 101 , 225 U. S.
108 -110; United States v. Union Stock Yard, 226 U. S. 286 , 226 U. S. 304 ; Texas & N. O. R. Co. v. Sabine Tram Co., 227 U.
S. 111 , 227 U. S.
124 .

															Why is it more difficult to recognize the integral relation of
the several steps in the process of election?

															Congress, by the so-called Enforcement Act of May 31, 1870, c.
114, § 20, 16 Stat. 140, 145, and the supplement approved February
28, 1871, c. 99, §§ 1, 2, 3, 4, 16 Stat. 433, 434, prescribed a
variety of regulations relating to elections of members of the
House of Representatives, including provisions for safeguarding the
registration of voters. These were carried into the Revised
Statutes as §§ 2011, 2016, 2021, 2022, 5522. They were attacked Page 256 U. S. 283 as unconstitutional in Ex parte Siebold, 100 U.
S. 371 , and were sustained as an exertion of the
authority of Congress to pass laws for regulating and
superintending such elections and for securing their purity,
without suggestion that the registration of voters was not, for
practical purposes, a part of the election itself and subject to
regulation as such. Yet, in point of causation, identification of
voters is related to the election no more closely than is the
naming of candidates.

															It is said that, if "the manner of holding elections" had been
understood in a sense to include the nominating procedure,
ratification of the Constitution by the state conventions could not
have been secured. I do not see how this can be confidently
asserted, in view of the fact that, by the very hypothesis, the
conventions ratified a specific provision for regulating the only
manner of holding elections with which they were familiar -- dealt
with the entire subject without limitation. Mr. Justice Story, in
rehearsing the objections, and the reasoning by which they were
met, with citations from the debates and from the Federalist,
refers to no objection that would be more cogent, supposing the
regulation were extended to nominating procedure, than it would be
if the regulation were confined to the ultimate election. Story,
Const., §§ 814-827. The sufficient answer to all objections was
found in Hamilton's "plain proposition, that every government
ought to contain, in itself, the means of its own
preservation. " Federalist, No. 89.

															What was said in No. 60 of the Federalist about the authority of
the national government being restricted to the regulation of the
times, the places, and the manner of elections, was in answer to a
criticism that the national power over the subject "might be
employed in such a manner as to promote the election of some
favorite class of men in exclusion of others," as by
discriminating

															"between the different departments of industry, or between Page 256 U. S. 284 the different kinds of property, or between the different
degrees of property,"

															or by a leaning "in favor of the landed interest, or the moneyed
interest, or the mercantile interest, or the manufacturing
interest," and it was to support his contention that there was

															"no method of securing to the rich the preference apprehended,
but by prescribing qualifications of property either for those who
may elect, or be elected,"

															which formed no part of the power to be conferred upon the
national government, that Hamilton proceeded to say that its
authority would be "expressly restricted to the regulation of the times, the places, and the manner of
elections." This authority would be as much restricted, in the
sense there intended, if "the manner of elections" were construed
to include all the processes of election from first to last. The
restriction arose from the express qualifications prescribed for
members of House and Senate, and for those who were to choose them,
subject to which all regulation of preliminary, as well as of
final, steps in the election necessarily would have to proceed.

															In support of a narrow construction of the power of Congress to
regulate "the manner of elections" of its membership, it is said
there is a check against corruption and kindred evils affecting the
nominating procedure, in the authority of each house to judge of
the elections, returns, and qualifications of its own members; the
suggestion being that, if -- to take a clear case -- it appeared
that one chosen to the Senate had secured his election through
bribery and corruption at the nominating primary, he might be
refused admittance. Obviously, this amounts to a concession that
the primary and the definitive election, whose legal separateness
is insisted upon, are essentially but parts of a single process,
else how could the conduct of a candidate with reference to the
primary have legitimate bearing upon the question of his election
as Senator? But the suggestion involves a fundamental Page 256 U. S. 285 error of reasoning. The power to judge of the elections and
qualifications of its members, inhering in each House by virtue of
§ 5 of Art. I, is an important power, essential in our system to
the proper organization of an elective body of representatives. But
it is a power to judge, to determine upon reasonable consideration
of pertinent matters of fact according to established principles
and rules of law, not to pass an arbitrary edict of exclusion. And
I am unable to see how, in right reason, it can be held that one of
the houses of Congress, in the just exercise of its power, may
exclude an elected member for securing by bribery his nomination at
the primary, if the regulation by law of his conduct at the primary
is beyond the constitutional power of Congress itself. Moreover,
the power of each house, even if it might rightfully be applied to
exclude a member in the case suggested, is not an adequate check
upon bribery, corruption, and other irregularities in the primary
elections. It can impose no penal consequences upon the offender;
when affirmatively exercised. it leaves the constituency for the
time without proper representation; it may exclude one improperly
elected, but furnishes no rule for the future by which the
selection of a fit representative may be assured, and it is exerted
at the will of but a single house, not by Congress as a lawmaking
body.

															But if I am wrong thus far -- if the word "elections" in Art. I,
§ 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. It is matter of common knowledge
that the great mass of Page 256 U. S. 286 the American electorate is grouped into political parties, to
one or the other of which voters adhere with tenacity, due to their
divergent views on questions of public policy, their interest,
their environment, and various other influences, sentimental and
historical. So strong with the great majority of voters are party
associations, so potent the party slogan, so effective the party
organization, that the likelihood of a candidate succeeding in an
election without a party nomination is practically negligible. 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. Hence,
the authority of Congress to regulate the primary elections and
nominating conventions arises, of necessity, not from any
indefinite or implied grant of power, but from one clearly
expressed in the Constitution itself (Art. I, § 8, cl. 18):

															"To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the government of the United States,
or in any Department or Officer thereof."

															This is the power preservative of all others, and essential for
adding vitality to the framework of the government. Among the
primary powers to be carried into effect is the power to legislate
through a Congress consisting of a Senate and House of
Representatives chosen by the people -- in short, the power to
maintain a lawmaking body representative in its character. Another
is the specific power to regulate the "manner of holding elections
for Senators and Representatives," conferred by § 4 of the first
article, and if this does not in Page 256 U. S. 287 literal terms extend to nominating proceedings intimately
related to the election itself, it certainly does not, in terms or
by implication, exclude federal control of those proceedings. From
a grant to the states of power to regulate the principal matter,
expressly made subject to revision and alteration by the Congress,
it is impossible to imply a grant to the states of regulatory
authority over accessory matters exclusive of the Congress. And it
is obvious that, if clause 18 adds nothing to the content of the
other express powers, when these are literally interpreted, it has
no efficacy whatever and must be treated as surplusage. It has not,
heretofore, been so regarded. The subject was exhaustively treated
by Chief Justice Marshall, speaking for the Court in the great case
already referred to, McCulloch v.
Maryland , 4 Wheat. 316, 17 U. S.
411 -424, where he pointed out, pp. 17 U. S.
419 -420:

															"1st. The clause is placed among the powers of Congress, not
among the limitations on those powers. 2nd. Its terms purport to
enlarge, not to diminish, the powers vested in the government. It
purports to be an additional power, not a restriction on those
already granted."

															According to the conclusive reasoning adopted in that case,
whatever meaning may be attributed to § 4 of Art. I, there is added
by clause 18 of § 8 everything necessary or proper for carrying it
into execution -- which means, into practical and complete
effect.

															The passage of the act under consideration amounts to a
determination by the lawmaking body that the regulation of primary
elections and nominating conventions is necessary if the Senate and
House of Representatives are to be, in a full and proper sense,
representative of the people. Not only is this true of those cases
referred to in the report of the Senate Committee (Senate Rept. No.
78, 62d Cong. 1st Sess. p. 2), where the parties are so unequally
divided that a nomination by the majority party is equivalent to
election, but it is true in every case Page 256 U. S. 288 to the extent that the nominating processes virtually eliminate
from consideration by the electors all eligible candidates except
the few -- two or three, perhaps -- who succeed in receiving party
nominations. Sinister influences exerted upon the primaries
inevitably have their effect upon the ultimate election -- are
employed for no other reason. 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.

															The question of the authority of Congress to determine that laws
regulating primary elections are "necessary and proper for carrying
into execution" the other powers specified, admits of but one
answer -- the same given by Chief Justice Marshall in the memorable
case last cited (4 Wheat. 17 U. S.
421 ):

															"We think the sound construction of the Constitution must allow
to the national legislature that discretion, with respect to the
means by which the powers it confers are to be carried into
execution, which will enable that body to perform the high duties
assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the Constitution, are
constitutional. "

															This principle has been consistently adhered to and liberally
applied from that day until this. Among a multitude of illustrative
cases that might be cited, some Page 256 U. S. 289 recent notable, but not exceptional, ones may be instanced: Second Employers' Liability Cases, 223 U. S.
1 , 223 U. S. 49 ,
holding that the power of Congress to regulate commerce among the
states brings within its authority the relations between common
carriers by rail and their employees engaged in such commerce; Houston & Texas Ry. v. United States, 234 U.
S. 342 , 234 U. S. 350 , 234 U. S. 355 ,
holding that the same power authorizes Congress to regulate rates
of transportation in the internal commerce of a state, to the
extent of preventing injurious discrimination against the movement
of traffic from state to state; Wilson v. New, 243 U. S. 332 , 243 U. S. 353 ,
holding that the power over interstate commerce extends to
regulating the wages of the employees of common carriers engaged
therein; Selective Draft Law Cases, 245 U.
S. 366 , 245 U. S. 377 , et seq., sustaining an act imposing involuntary military
duty upon the citizen as "necessary and proper for carrying into
execution" the power to declare war, raise and support armies, and
make rules for the government and regulation of the land and naval
forces; United States v. Ferger, 250 U.
S. 199 , 250 U. S. 205 ,
upholding the authority of Congress to prohibit and punish the
fraudulent making of spurious interstate bills of lading even in
the absence of any actual or contemplated movement of commerce from
state to state; Hamilton v. Kentucky Distilleries Co., 251 U. S. 146 , 251 U. S. 155 , 251 U. S. 163 ,
sustaining war-time prohibition of the sale of distilled spirits
for beverage purposes as a measure necessary and proper for
carrying into execution the war power; Jacob Ruppert v.
Caffey, 251 U. S. 264 , 251 U. S. 282 , 251 U. S.
299 -301, sustaining an act prohibiting the manufacture
and sale of nonintoxicating beer as "necessary and proper" to
render effective a prohibition against intoxicants; First
National Bank v. Union Trust Co., 244 U.
S. 416 , 244 U. S. 419 ,
sustaining an act conferring upon national banks powers not
inherently federal, but deemed appropriate to enable such banks to
compete with state banks having Page 256 U. S. 290 like powers, and Smith v. Kansas City Title & Trust
Co., 255 U. S. 180 ,
sustaining an act establishing federal land banks and joint stock
land banks having broad powers, not national in their character,
but deemed by Congress to be reasonably appropriate for performing
certain limited fiscal functions in aid of the national
treasury.

															It would be tragic if that provision of the Constitution which
has proved the sure defense of every outpost of national power
should fail to safeguard the very foundation of the citadel.

															But its function in preserving our representative government has
long been recognized. In Ex parte Yarbrough, 110 U.
S. 651 , 110 U. S. 657 ,
where the question was as to the constitutionality of §§ 5508 and
5520, Rev.Stats. -- the question having arisen upon an indictment
for a conspiracy to intimidate a citizen of African descent in the
exercise of his right to vote for a member of Congress -- the
Court, by Mr. Justice Miller, said:

															"That a government whose essential character is republican,
whose executive head and legislative body are both elective, whose
most numerous and powerful branch of the legislature is elected by
the people directly [now true of both branches], has no power by
appropriate laws to secure this election from the influence of
violence, of corruption, and of fraud, is a proposition so
startling as to arrest attention and demand the gravest
consideration. 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. If it has not this power, it is left
helpless before the two great natural and historical enemies of all
republics, open violence and insidious corruption. The proposition
that it has no such power is supported by the old argument, often
heard, often repeated, and in this Court never assented to,
that, Page 256 U. S. 291 when a question of the power of Congress arises, the advocate of
the power must be able to place his finger on words which expressly
grant it. . . . It destroys at one blow, in construing the
Constitution of the United States, the doctrine universally applied
to all instruments of writing, that what is implied is as much a
part of the instrument as what is expressed. This principle, in its
application to the Constitution of the United States, more than to
almost any other writing, is a necessity, by reason of the inherent
inability to put into words all derivative powers -- a difficulty
which the instrument itself recognizes by conferring on Congress
the authority to pass all laws necessary and proper to carry into
execution the powers expressly granted and all other powers vested
in the government or any branch of it by the Constitution. Article
I, § 8, cl. 18."

															I conclude that it is free from doubt that the Congress has
power under the Constitution to regulate the conduct of primary
elections and nominating conventions held for choosing candidates
to be voted for in general elections for Representatives and
Senators in Congress, and that the provisions of the Act of August
19, 1911, 37 Stat. 26-28, in that behalf are valid.

															Since the majority of the Court hold that the act is invalid, it
would serve no useful purpose to spend time in discussing those
assignments of error that relate to the conduct of the trial. It
may be said, however, that, in my opinion, the trial court did not
err in refusing to direct a verdict for the defendants for want of
evidence of the alleged conspiracy, nor in instructing the jury
that the prohibition of the statute against the expenditure and use
of money by a candidate beyond the specified limit is not confined
to his own money, but extends to the expenditure or use of
excessive sums of money by him, from whatever source and from
whomsoever derived, nor in instructing them that, in order to
warrant a verdict Page 256 U. S. 292 of guilty upon an indictment for conspiracy, it was not
necessary that the government should show that defendants knew that
some statute forbade the acts they were contemplating, but only to
show an agreement to do acts constituting a violation of the
statute, their knowledge of the law being presumed.

															I find prejudicial error, however, in that part of the charge
which assumed to define the extent to which a candidate must
participate in expenditures beyond the amount limited in order that
he may be held to have violated the prohibition -- an instruction
vitally important because it was largely upon overt acts supposed
to have been done in carrying out the alleged conspiracy that the
government relied to prove the making of the conspiracy and its
character, and because, unless the purposes of defendants involved
a violation of the Corrupt Practices Act, they were not guilty of a
conspiracy to commit an "offense against the United States," within
the meaning of § 37, Criminal Code.

															The instruction upon this topic, excepted to and assigned for
error, was as follows:

															"The phrase which constitutes the prohibition against the
candidate's 'causing to be given, contributed, expended or used'
excessive sums of money is not limited and not confined to
expenditures and use of money made directly and personally by
himself. 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; neither is it
sufficient to constitute a violation of this Page 256 U. S. 293 statute that the candidate merely acquiesces in such
expenditures and use. But it is sufficient to constitute a
violation of this statute if the candidate actively participates in
doing the things which occasion such expenditures and use of money,
and so actively participates with knowledge that the money is being
expended and used. To apply these rules to this case: if you are
satisfied from the evidence that the defendant, Truman H. Newberry
at or about the time that he became a candidate for United States
Senator was informed and knew that his campaign for the nomination
and election would require the expenditure and use of more money
than is permitted by law and with such knowledge became a
candidate, and thereafter by advice, by conduct, by his acts, by
his direction, by his counsel, or by his procurement he actively
participated and took part in the expenditure and use of an
excessive sum of money, of an unlawful sum of money, you will be
warranted in finding that he did violate this statute known as the
Corrupt Practices Act."

															However this may be regarded when considered in the abstract,
the difficulty with it, when viewed in connection with the evidence
in the case to which the jury was called upon to apply it, is that
it permitted and perhaps encouraged the jury to find the defendants
guilty of a conspiracy to violate the Corrupt Practices Act if they
merely contemplated a campaign requiring the expenditure of money
beyond the statutory limit, even though Mr. Newberry, the
candidate, had not, and it was not contemplated that he should
have, any part in causing or procuring such expenditure beyond his
mere standing voluntarily as a candidate and participating in the
campaign with knowledge that moneys contributed and expended by
others without his participation were to be expended.

															The language of the Corrupt Practices Act (37 Stat. 28) is: "No
candidate . . . shall give, contribute, expend, Page 256 U. S. 294 use, or promise, or cause to be given, contributed, expended,
used, or promised," etc.

															A reading of the entire act makes it plain that Congress did not
intend to limit spontaneous contributions of money by others than a
candidate, nor expenditures of such money except as he should
participate therein. Of course, it does not mean that he must be
alone in expending or causing to be expended the excessive sums of
money; if he does it through an agent or agents, or through
associates who stand in the position of agents, no doubt he is
guilty; qui facit per alium facit per se; but unless he is
an offender as a principal, there is no offense. Section 332,
Criminal Code, declares:

															"Whoever directly commits any act constituting an offense
defined in any law of the United States, or aids, abets, counsels,
commands, induces, or procures its commission, is a principal."

															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.

															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, and that his remaining in the field and participating
in the ordinary activities of the campaign with knowledge that such
activities furnish in Page 256 U. S. 295 a general sense the "occasion" for the expenditure is not to be
regarded as a "causing" by the candidate of such expenditure within
the meaning of the statute.

															The state of the evidence made it important that, in connection
with that portion of the charge above quoted, the jury should be
cautioned that, unless it was a part of defendants' plan that Mr.
Newberry should actually participate in giving, contributing,
expending, using, or promising, or causing to be given,
contributed, expended, used, or promised moneys in excess of the
limited amount -- either himself or through others as his agents --
his mere participation in the activities of the campaign, even with
knowledge that moneys spontaneously contributed and expended by
others, without his agency, procurement, or assistance, were to be
or were being expended, would not of itself amount to his causing
such excessive expenditure. The effect of the instruction that was
given may well have been to convey to the jury the view that Mr.
Newberry's conduct in becoming and remaining a candidate with
knowledge that spontaneous contributions and expenditures of money
by his supporters would exceed the statutory limit, and his active
participation in the campaign were necessarily equivalent to an
active participation by him in causing the expenditure and use of
an excessive sum of money, and that a combination among defendants
having for its object Mr. Newberry's participation in a campaign
where money in excess of the prescribed limit was to be expended,
even without his participation in the contribution or expenditure
of such money, amounted to a conspiracy on their part to commit an
offense against the act.

															For error in the instructions in this particular the judgment
should be reversed, with directions for a new trial.

															MR. JUSTICE BRANDEIS and MR. JUSTICE CLARKE concur in this
opinion.

Summary: In Newberry v. United States (1921), the Supreme Court ruled that Section 8 of the Federal Corrupt Practices Act, which aimed to limit the amount of money a candidate for Congress or the Senate could spend on their campaign, was unconstitutional. The Court interpreted Article I, Section 4 of the Constitution, which gives Congress the power to regulate the "times, places, and manner" of holding elections, as not granting Congress unlimited power over elections. The Court also clarified that primaries are not considered elections for office, but rather a method for parties to choose their candidates. This decision affirmed the role of state legislatures in regulating elections and maintained the federal character of the US government.