The background: You may well have heard the word “originalism” used to describe the method of interpreting the Constitution by at least some conservatives. I clerked (as a token liberal) for one of the most consequential originalists in the history of the Supreme Court, Justice Scalia. Watching him struggle to practice his originalism consistently was perhaps the most important part of my early legal education. (I describe that struggle here, apologies for the ads.) There are many others on the Court, both before, and since, who have tried that practice as well, some more consistently than others, but most practicing that approach on the right. Not all — one of the most famous Supreme Court originalists was also among its most liberal: Justice Black. And though certainly no conservative, when Justice Kagan was appointed, she told the Senate “We are all originalists now.” Yet it’s fair to say that originalism is understood to be a canon of the right. And the most consequential engine for spreading that ideology on the right has been Federalist Society, itself brimming with originalists of all kinds.
The Federalist Society was born in 1982, launched by law students at Yale, Chicago and Harvard, and keen to develop a distinctive and conservative legal jurisprudence. In 1989, Leonard Leo, then a student at Cornell Law School, launched Cornell’s local chapter. Two years later, he went to work for the Society in Washington, DC, and has served the Society in various capacities for more than 25 years.
But during the same 25 years, Leo has guided various political nonprofits that have all pressed conservative ideals. His most consequential work has driven the appointment of conservative judges and justices. He has raised an enormous amount of money to advance that work. In 2022, it was reported that one of his funds, The Marble Freedom Trust, had received a $1.6 billion contribution to advance his conservative ends.
Leo has supported many conservative and libertarian non-profits. One of them is the Institute for Free Speech. Former FEC Chairman, Brad Smith, is the founder and chairman of IFS. IFS has been instrumental in pressing a strongly libertarian vision of the First Amendment — and quite successfully.
The battle: If you’re a reader of this Medium page, you know I’ve been in a long fight to get the Supreme Court to take up the question whether Madison’s First Amendment really does require SuperPACs. That fight is now happening in Maine. The people of that (beautifully purple) state voted overwhelmingly (74.9%) to pass Question 1 last November, an initiative that would end SuperPACs in Maine. One month after the initiative passed, IFS helped launch a lawsuit to challenge it. Dinner Table Action v. Schneider seeks to declare that initiative unconstitutional.
We (EqualCitizens.US, the initiatives sponsor, Cara and Peter McCormick, and an extraordinary Republican state-senator (who I’d support for President), Rick Bennett) are seeking to intervene in the case, because the wonderful Maine AG is not eager to advance a full originalist argument to defend in initiative. He’s convinced a simple application of the standard “quid pro quo” argument will be enough. We agree that should be enough. But we’re also convinced that success will depend upon demonstrating to the Scalia-wanna-be originalists on the Court (those keen to show that their originalism is principle, not just politics) that the original meaning of the First Amendment certainly doesn’t give judges the power to strike down laws that advance core and valid anti-corruption (or anti-aristocratic) ideals. (Here’s a forthcoming essay of mine laying out that argument.)
Where strategy battles principle: So here’s the punchline: Our effort to intervene is being opposed, not by the State of Maine, but by the IFS-backed plaintiffs challenging the initiative. They’ve told us directly that they believe we should be amicus only, unable to introduce evidence or testimony. We have extraordinary declarations by some of the most prominent constitutional historians, as well as empirical work cashing out the idea of an “appearance of quid pro quo corruption.” All that, the IFS-backed plaintiffs would exclude.
Scalia introduced the concept of faint-hearted originalism. Welcome to the world of fair weather originalists, afraid of the implication of their own theory.
We’ll see how the district court rules, likely later this week. Stay tuned.
