"Free use of money" could mean, I suppose, free spending of money on leaflets, advertisements, and so on.  Or it could mean the practice, which I understand was not uncommon in the 19th century, of paying voters to vote a particular way.  See, e.g., Report of the Standing Committee on Privileges and Elections in the Hamilton County [Ohio] Contest Cases 443 (1886) (speaking of the "free use of money" "in the way of treating, giving suppers, etc."); 21 The Century 261 (1881) (quoting N.Y. Evening Post, Aug. 19, 1880) (apparently using the phrase "free use of money" to refer to paying "electors [who] offer their votes to the highest bidder").  Is there some evidence that the Court meant the use of money to express views to voters rather than the use of money to pay or otherwise "treat" voters?

	Eugene

-----Original Message-----
From: election-law-bounces@mailman.lls.edu [mailto:election-law-
bounces@mailman.lls.edu] On Behalf Of Paul Lehto
Sent: Thursday, February 17, 2011 8:04 AM
To: Bill Maurer
Cc: Smith, Brad; election-law@mailman.lls.edu
Subject: Re: [EL] Caperton, Citizens United, & Clarence Thomas

On 2/16/11, Bill Maurer <wmaurer@ij.org> wrote:

Craig and Joe make interesting points regarding the interpretation by
some of the Tillman Act.  But Citizens United did not overturn the
Tillman Act.  So, it did not overturn "a century of law," if we assume
that what is being referred to as the "law" in that statement is the
Tillman Act.  Whether one calls Citizens United a reversal or revolution in

"law" or "dicta" or "principle" or "philosophy", it is nevertheless clear that
even more than a century of it was overturned by Citizens United (see case
quotes below).  We all know that not just the holding but also the principles
of CU are already cited in follow-up cases arguing for the reversal of
additional law beyond that expressly discussed and reversed by CU.

To illustrate in part how far back the reversal or revolution goes,
see for example, the unanimous 1884 Supreme Court Ex Parte Yarborough,
which equated Ku Klux Klan violence with the unregulated or "free use
of money" as being two prime examples of election corruption so
shocking that it would be gravely dangerous to think the Constitution
contemplates no power to regulate these corruptions of "free"
elections - i.e. elections free from force, fraud, and undue
influence. You can check my characterization of the case against the
short quote and the extended quote below from Yarborough, as well as
the final quote from US v. Classic (1941) citing Yarborough with
favor, and pointing out that the election powers, unlike most
Constitutional powers, reach individual private action and not just
state action:

Whether the case quotes below are deemed dicta, philosophy, holding or
principle, it's unlikely such strongly worded concepts as those below
would pass the editing pens of all the justices in the final paragraph
of the case without it representing their actual belief.
Personally, I conclude that framing this discussion or debate here in
terms of whether or not a "century" of "law" was "reversed" is a red
herring that disguises the importance of Citizens United.

Here is Ex Parte Yarborough, discussing Klan violence in elections and
the power to regulate threats to the integrity of elections:

"If the recurrence of such acts as these prisoners stand convicted of
are too common in one quarter of the country, and give omen of danger
from lawless violence, the free use of money in elections, arising
from the vast growth of recent wealth in other quarters, presents
equal cause for anxiety.

"If the government of the United States has within its constitutional
domain no authority to provide against these evils -- if the very
sources of power may be poisoned by corruption or controlled by
violence and outrage, without legal restraint -- then indeed is the
country in danger, and its best powers, its highest purposes, the
hopes which it inspires, and the love which enshrines it are at the
mercy of the combinations of those who respect no right but brute
force on the one hand, and unprincipled corruptionists on the other.
The rule to show cause in this case is discharged, and the writ of
habeas corpus denied."
Ex Parte Yarbrough, 110 U.S. 651 (1884)."
http://supreme.justia.com/us/110/651/case.html
...

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