Originalism’s campaign finance conundrum

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In a recent interview, Justice Amy Coney Barrett shared her view that “originalism became prominent as a theory” as a counterweight to the theory of “living constitutionalism” that “had become dominant” during the courts led by Chief Justices Earl Warren and Warren Burger. According to Barrett, whereas the living constitutionalism of the Warren-Burger eras put the court in the position of functionally amending the Constitution by updating its meaning, originalism instead aims to understand “how those who ratified the Constitution understood the words.”

There is no doubt that decisions from the Warren and Burger courts are now open to question by a solid majority of originalist justices; the court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, holding that there is no constitutional right to an abortion, is only the most noteworthy example of this. But many other precedents from that same era have not yet received comparable scrutiny, prominent among these being the court’s seminal campaign finance decision in the 1976 case of Buckley v. Valeo.

When the Supreme Court hears oral argument in National Republican Senatorial Committee v. Federal Election Commission this morning, Tuesday, Dec. 9, it will confront fundamental questions about the First Amendment and money in politics. But the case also presents an underappreciated puzzle: How should originalists think about Buckley, which created much of our constitutional framework around campaign finance?

What Buckley did

In the early 1970s, Congress crafted legislation aimed at addressing the soaring cost of political campaigns and reducing the perceived influence of wealthy interests. The Federal Election Campaign Act of 1971 passed with bipartisan supermajorities in both chambers. President Richard Nixon signed it into law, noting that “the goal of controlling campaign expenditures was a highly laudable one.” When Congress amended FECA in 1974, which, among other things, further limited the amounts that could be contributed to federal candidates, President Gerald Ford proclaimed: “The unpleasant truth is that big money influence has come to play an unseem[ly] role in our electoral process. This bill will he[l]p to right that wrong.”

Nevertheless, in Buckley – which turns 50 next month – the Supreme Court struck down most of FECA’s core provisions. The court functionally equated spending money in politics with “the freedom of speech” itself, concluding that limits on campaign spending “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” While the court upheld limits on direct contributions to federal candidates as a guard against quid pro quo corruption, it invalidated all limits on expenditures by campaigns or independent groups.

Buckley runs to a remarkable 144 pages in the U.S. Reports — the longest majority opinion the court has ever produced. Yet nowhere in those 144 pages does the court engage in any sort of originalist analysis of the core questions in the case. There’s no sustained examination of what “the freedom of speech” originally entailed, no investigation of how the founding generation would have understood campaign finance regulation, and no inquiry into which institution they expected to resolve such questions.

A methodological resemblance

Indeed, Buckley emerged during a period when originalism was not the court’s dominant mode of constitutional interpretation, and the decision bears striking similarities to other cases that originalists have criticized for lacking grounding in the Constitution’s original meaning. Three examples are especially pertinent.

First, in the 1965 case of Griswold v. Connecticut, Justice William O. Douglas famously identified a constitutional right to privacy prohibiting states from banning contraception for married couples. He derived this from “penumbras, formed by emanations” of various Bill of Rights provisions, a move which originalists have condemned for creating rights without any clear textual foundation. Buckley took similar leaps, deriving the concept of unlimited campaign spending from the First Amendment’s “freedom of speech” without any consideration of this amendment’s original meaning.

Second is Miranda v. Arizona, decided in 1966, which prescribed specific warnings that police officers must give to individuals in custody. In that case, the court provided no textualist or originalist grounding in the Fifth Amendment’s self-incrimination clause. For that reason, originalists have long derided the decision as “inconsistent with the original understanding of the right against self-incrimination” and “a usurpation of legislative and administrative powers, thinly disguised as an exercise in constitutional exegesis[.]” Buckley likewise creates detailed rules constraining democratic choices about campaign finance without any obvious textual commands.

Last is 1973’s Roe v. Wade, which created an elaborate trimester framework that, according to originalists, resembled legislation far more than constitutional interpretation. Like Roe, Buckley constructed a detailed architecture — distinguishing contributions from expenditures, applying different levels of scrutiny to each, and creating categorical rules about corruption — that looks far more legislative than interpretive.

None of this necessarily means that Buckley – or any of the cases cited above – reached the wrong result as a matter of policy. But it does raise questions about methodology. If these forms of reasoning were problematic to originalists in Griswold, Roe, and Miranda, what makes them acceptable in Buckley?

The “who decides” question

Recent originalist scholarship reveals an even deeper problem with Buckley, however. Stanford law professor Jud Campbell’s path-breaking research on the founding era has shown that recovering original meaning requires an understanding of not just what rights the Founders recognized, but which institution they expected to resolve disputes about those rights.

Based on this understanding, and as relevant to Buckley, a key question isn’t merely whether political speech was valued at the founding (it certainly was) – but whether courts were expected to micromanage legislative efforts to address corruption or preserve electoral integrity. And Campbell’s research demonstrates that there was no such view. Instead, the Founders believed that representative institutions could regulate liberty in the public interest – speech included – provided that the people consented through their elected representatives. As Campbell has explained, there is “no evidence that the Founders denied legislative authority to regulate expressive conduct in promotion of the public good — a principle that runs contrary to countless modern decisions.”

Of course, the Founders did expect courts to enforce some constitutional limits. But they expected judges to defer to legislative judgments unless a constitutional violation was clear beyond dispute. Aggressive judicial review using heightened scrutiny is a 20th-century innovation, not a founding-era practice.

But Buckley considered none of this.

Citizens United and beyond

In 2010, Citizens United v. Federal Election Commission extended Buckley’s framework, holding that corporations and other entities have a First Amendment right to make unlimited independent expenditures in elections. In doing so, the court struck down longstanding federal restrictions on corporate campaign spending and overruled precedents upholding such limits. The reasoning was pure Buckley: vigorous judicial review, equation of spending with speech, and dismissal of legislative concerns about corruption unless narrowly defined as quid pro quo arrangements. For this reason, Citizens United has also been critiqued as a non-originalist decision.

The court has only continued this pattern. When Montana sought to apply its century-old ban on corporate expenditures – a law rooted in the state’s particular history with corporate domination of politics – the court summarily reversed in a one-paragraph, unsigned opinion. In McCutcheon v. Federal Election Commission, the majority struck down aggregate limits on individual contributions. In Arizona Free Enterprise Club v. Bennett, the court invalidated Arizona’s public financing scheme. Each decision further entrenched the court as the nation’s primary campaign finance regulator, with democratic bodies relegated to implementing the court’s commands.

The contrast with other constitutional areas is striking. In economic regulation, national security, and countless other domains, the court defers to legislative fact-finding and policy judgments. But campaign finance is apparently different. Here the court insists on its own assessment of empirical questions: What constitutes corruption? When does money create the appearance of improper influence? Will such appearance “cause the electorate to lose faith in our democracy”?

Implications for NRSC v. FEC

As the court considers NRSC v. FEC, it once again faces a choice about how seriously to take originalism when it comes to campaign finance. The case involves federal contribution limits and party coordination rules – specifically, whether limits on how much political parties can spend on campaign advertising that is coordinated with the party’s candidate for office are consistent with the First Amendment. These are technical questions, but they are rooted in the same framework as Buckley.

An originalist approach would ask not only what the understanding of free speech was at the time of the founding (as Buckley failed to do), but whether campaign finance was understood to be an area of vigorous judicial oversight or legislative primacy. As for the latter concern, the founding generation’s answer seems clear. They valued political speech but expected elected representatives to make judgments about how to structure democratic processes.

Defenders of Buckley might respond that political speech occupies a unique constitutional position, or that judicial protection is essential regardless of original understanding. These are serious arguments. But they represent a departure from originalist methodology rather than an application of it. They prioritize judicial assertiveness over the founding generation’s institutional assumptions.

The question, then, is whether originalism’s principles apply consistently across subject areas, or whether campaign finance represents a special case in which other considerations override originalist constraints. If the latter, the court should say so explicitly rather than leaving the tension implicit.

This doesn’t prejudge how NRSC should come out. The court might conclude (unlike in Dobbs) that stare decisis counsels retaining Buckley despite originalist doubts concerning it. Or it might begin the process of unwinding Buckley’s framework, returning campaign finance to democratic processes while maintaining a limited judicial role. Or it might articulate why campaign finance truly is exceptional in ways the Founders would have recognized. But it is high time that the court confronts this tension directly rather than allow Buckley to further distort its approach to such a vital area of the democratic process.

Disclosure: American Promise filed an amicus brief in support of neither party in National Republican Senatorial Committee v. Federal Election Commission.