The Key to Saving Our Atrocious Campaign Finance Laws Might Be … Josh Hawley?
(first published at Slate)
Late last month, Republican Sen. Josh Hawley introduced a bill that signals that a critical break may be coming in the fever of campaign finance jurisprudence. The Ending Corporate Influence on Elections Act of 2023 purports to limit political spending by publicly traded corporations in America. The bill has exactly zero chance of becoming law. Yet the constitutional premise Hawley has embraced could change campaign finance law fundamentally.
Hawley is motivated, he says, by the theory of constitutional interpretation named “originalism.” Originalism says that the Constitution should be interpreted according to the original meaning of the words in that document. In Hawley’s view, nothing in the words of the First Amendment, as originally interpreted, would limit legislatures from directing how corporate money can or cannot be spent. Nothing, therefore, in that amendment should limit legislatures from so directing today.
Hawley is certainly right about the original meaning of the First Amendment. He is also right to recognize that originalism has become, in theory at least, the dominant interpretive practice of the Supreme Court. And he’s right that the case that held to the contrary, Citizens United v. FEC, ignored these principles of originalism.
But the challenge for Hawley is that none of the originalists on the Supreme Court have even considered how their theory applies to First Amendment limits on campaign finance law.
Justice Clarence Thomas is the clearest example. While Thomas has, on grounds of originalism, called for a reconsideration of New York Times v. Sullivan — calling the landmark 1964 free press opinion a “policy-driven decision masquerading as constitutional law” — he has been the most aggressive justice pressing limits on the regulation of campaign contributions and campaign spending. Yet if he applied that same skepticism to the foundation of modern campaign finance law — Buckley v . Valeo — he would certainly find in that 144-page-long opinion plenty of “policy-driven decision[making] masquerading as constitutional law” which originalism would undo. For as lawyers and scholars have increasingly recognized, the original meaning of the First Amendment gave legislatures broad authority to regulate the rules governing political campaigns, at least so long as such regulation was in pursuit of the general welfare. (Jud Campbell’s work is the most instructive here.) And as Justice Thomas has insisted (citing Campbell), “no evidence [from the founding] indicates that the First Amendment empowered judges to determine whether particular restrictions of speech promoted the general welfare.” Thus, on that reading, not only would corporate expenditures be regulable, but existing law, now unenforced, regulating contributions to independent political expenditures committees — now called “super PACs” — would also be constitutional.
Indeed, the argument for allowing limits on contributions to super PACs is even clearer than this. On the dominant theory of the Supreme Court, political contributions can only be regulated if they present a risk of “quid pro quo” corruption. Three months after Citizens United decided that independent expenditures created no risk of quid pro quo corruption (if they were quid pro quo, they would not be “independent”), in SpeechNow v. FEC, the U.S. Court of Appeals for the District of Columbia Circuit held that as a matter of law, contributions to independent expenditure committees also could create no risk of quid pro quo corruption. Yet five years after that decision, the Department of Justice proved that logic was flawed: Democratic Sen. Robert Menendez was charged (but acquitted by the jury) with offering favors to a contributor in exchange for that contributor giving money to Menendez’s super PAC. Thus, here was an “independent” expenditure enabled by a contribution that allegedly involved a quid pro quo. What the D.C. Circuit said was impossible, Menendez was alleged to have done.
The Supreme Court has never considered whether super PACs are constitutionally required. But as Hawley’s bill shows, both originalism consistently applied as well as the dominant “quid pro quo” theory governing the regulation of campaign contributions should yield the same conclusion: That nothing in James Madison’s First Amendment blocks states or the federal government from limiting contributions to independent political action committees. Or, put more simply, that super PACs are not compelled by the First Amendment.
The challenge is that there is currently no way to challenge the law governing super PACs. So firmly has the view that the First Amendment protects them been settled in American law that there is no jurisdiction that continues to enforce limits on contributions to super PACs.
All this may change if an initiative in Maine qualifies for the ballot and gets enacted next fall. That initiative purports to limit contributions to independent expenditure committees in Maine. If it passes (and 78 percent of Maine voters support the initiative), the law would be challenged immediately. The U.S. Court of Appeals for the 1st Circuit has not yet ruled on whether super PACs are constitutionally compelled. If that court follows either the quid pro quo analysis of the Supreme Court or the originalism of Sen. Hawley, it would uphold the legislation, forcing the Supreme Court to take the matter up. By July 2026, the 250th anniversary of the Declaration of Independence, the United States Supreme Court could well declare us independent of super PACs. And with that decision, the most polarizing and concentrated political spending in America — 70 percent of itemized contributions to super PACs come from contributors giving $1 million or more; 90 percent come from contributions of $100,000 or more — would come to an end.
The only real question then would be whether the originalists would apply their principles consistently. When in litigation before the highest court of Massachusetts, I suggested that they would, the justices broke out in laughter — literally.
If Maine enacts its initiative, we’ll soon see.