Citation
Nicholas Stephanopoulos, The Sweep of the Electoral Power, 36 Const. Comment. 1 (2021).
Abstract
Congress possesses sweeping authority to regulate federal and state elections — an authority that scholars have largely neglected despite its being conferred by more than ten constitutional provisions. This Article provides a multilayered foundation for that authority. From a theoretical perspective, it argues that Congress poses less of a threat to democratic values than do the states or the courts, as it is more difficult for a self-interested faction to seize control of federal lawmaking than to capture a state government or a judicial body. Surveying the history of congressional electoral regulation, it contends that the federal record is remarkably benign, with most interventions having advanced democratic values. It then shows that current law grants Congress the expansive electoral authority that, normatively, it ought to possess — arguing that the Elections Clause, the Guarantee Clause, and the Fourteenth Amendment’s Enforcement Clause combine to empower Congress over most electoral levels and topics. The Article concludes that aggressive federal electoral action may be the only way to save the American political system.