Finance

Originalism’s campaign finance conundrum

Published

2 months ago

December 9, 2025

Originalism’s campaign finance conundrum

Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not necessarily reflect the opinions of SCOTUSblog or its staff.

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.

Finance

Women in tech and finance at higher risk from AI job losses, report says

Published

45 minutes ago

February 3, 2026

Press Room

Women in tech and finance at higher risk from AI job losses, report says

Women working in tech and financial services are at greater risk of losing their jobs to increased use of AI and automation than their male peers, according to a report that found experienced females were also being sidelined as a result of “rigid hiring processes”.

“Mid-career” women – with at least five years’ experience – are being overlooked for digital roles in the tech and financial and professional services sectors, where they are traditionally underrepresented, according to the report by the City of London Corporation.

The governing body that runs the capital’s Square Mile found female applicants were discriminated against by rigid, and sometimes automated, screening of their CVs, which did not take into account career gaps related to caring for children or relatives, or only narrowly considered their professional experience.

To reverse the trend, the corporation is calling on employers to focus on re-skilling female workers not currently in technical roles, particularly those in clerical positions most at risk of being displaced by automation.

It is estimated that about 119,000 clerical roles in tech and the financial and professional service sectors, predominantly carried out by women, will be displaced by automation over the next decade. Reskilling those affected by these job losses could save companies from making redundancy payments totalling as much as £757m, the report found.

Upskilling staff would allow employers to focus on candidates’ potential rather than their past technical experience, the report found. It is estimated that up to 60,000 women in tech leave their roles each year for reasons including lack of advancement, lack of recognition and inadequate pay.

Dame Susan Langley, the mayor of City of London, said: “By investing in people and supporting the development of digital skills within the workforce, employers can unlock enormous potential and build stronger, more resilient teams. Focusing on talent, adaptability and opportunity will ensure the UK continues to lead on innovation and remains a global hub for digital excellence.”

Recent surveys have shown that as many as a quarter of UK workers are worried that their jobs could disappear in the next five years because of AI, according to a poll by the international recruitment company Randstad. Union leaders have called on companies to commit to investing in workforce skills and training.

The City of London Corporation found that women were being overlooked for roles even as difficulties in hiring talent meant more than 12,000 digital vacancies in these sectors went unfilled in 2024.

Companies have tried to deal with worker shortages by increasing wages above the national average, but the report found that higher pay rates would not solve the problem. It warned that the widening digital talent gap was forecast to last until at least 2035 and that under this scenario the UK could miss out on more than £10bn of economic growth.

Finance

5 takeaways from 2025’s end-of-year campaign finance reports

Published

13 hours ago

February 3, 2026

Press Room

5 takeaways from 2025’s end-of-year campaign finance reports

President Trump stockpiled millions into his super PAC, while a handful of GOP groups outraised their Democratic counterparts in the last stretch of 2025 as Republicans brace for a midterm cycle shaping up to be much like the anti-Trump 2018 midterms.

Trump’s super PAC, MAGA Inc., has more than $300 million in the bank to start off 2026, according to recent campaign filings, while the Republican National Committee (RNC) outraised the Democrats, who are working to pay off debt from the 2024 cycle.

Yet there are some bright spots for Democrats, too: Many of the party’s Senate candidates have outperformed their Republican contenders as the party looks to make inroads in the upper chamber.

Here are five takeaways from the last campaign filing reports of 2025:

Trump stockpiles millions

The president’s super PAC is starting off the year with $304 million — an impressive sum of money that demonstrates Republicans will not be without resources as they look to keep their narrow House majority and retain control of the Senate.

The super PAC’s latest filing, which covers Dec. 23 through Dec. 31, showed the president received $7.5 million from the pro-Trump dark money group Securing American Greatness Inc. and $1 million from businessman and Los Angeles Dodgers part-owner Todd Boehly, among others.

Other prominent figures who have donated to Trump’s super PAC over the past year include $12.5 million each from OpenAI president and co-founder Greg Bockman and his wife, $11 million from entrepreneur and investor Konstantin Sokolov, and $4 million from defense contractor chief executive Michelle D’Souza.

A number of prominent businesspeople and donors have given to Trump or his aligned entities, particularly for his construction of the East Wing ballroom, as different industries have looked to curry favor with the president.

RNC holds large cash-on-hand advantage over DNC

The RNC outraised the Democratic National Committee in 2025, $172 million compared to $146 million. In December, the RNC edged out its Democratic counterparts at $16 million to roughly $13 million.

The Republican Party also starts off 2026 with a nearly $100 million cash-on-hand advantage over Democrats: The GOP has $95 million in the bank to start off the year, while Democrats have $14 million cash on hand, in addition to close to $18 million in debt.

Democrats have steadily been trying to pay off debt that was accrued during former Vice President Kamala Harris’s presidential campaign in 2024. Donors in the aftermath of the 2024 election also curbed their spending to different groups amid frustration over how the presidential cycle played out and as the party looked to reset itself heading into 2026.

Across the board, however, GOP groups like the House Republican and Senate Republican campaign arms posted larger 2025 hauls than their Democratic counterparts. However, the cash on hand for the House and Senate Democratic campaign arms are nearly equal to or have narrowly surpassed their GOP counterparts.

Democratic Senate candidates largely outraise GOP challengers

If there’s one financial silver lining for Democrats right now, it’s that the party’s Senate challengers in competitive races have largely outraised their Republican contenders.

In Georgia, Sen. Jon Ossoff (D-Ga.) — seen as the most vulnerable Senate Democrat up for reelection this cycle — raised close to $10 million between October and December from his campaign. He starts off 2026 with close to $26 million in the bank.

His GOP opponents trail far behind. Former University of Tennessee football coach Derek Dooley’s campaign raised $1.1 million and has $2.1 million cash on hand. Rep. Buddy Carter’s campaign (R-Ga.) raised $1.7 million, which includes a $1 million loan to himself, and starts off this year with nearly $4.2 million. Rep. Mike Collins’s campaign (R-Ga.) raised about $825,000 and has $2.3 million cash on hand.

In Ohio, former Sen. Sherrod Brown’s (D-Ohio) campaign raised $7.3 million in the last quarter of 2025 and has nearly $10 million in the bank. Meanwhile, Sen. Jon Husted’s (R-Ohio) campaign raised $1.5 million between October and December and starts off the year with close to $6 million in the bank.

Musk starts spending ahead of midterms

Elon Musk has resumed pumping money toward GOP groups heading into the midterms, less than a year after he signaled he would pull back from political spending. The Tesla CEO gave $5 million each to two super PACs helmed by House Republican and Senate Republican leadership.

All told, Musk has given $20 million to the two political groups in 2025, highlighting how the former Trump adviser is poised to play an important role again in the upcoming election cycle for Republicans.

Musk spent millions in last year’s Wisconsin Supreme Court races, yet the liberal candidate handily won the vacant seat on the state’s high court. However, his spending helped level the playing field for Republicans.

While his spending will help the GOP, Democrats are sure to seize on his involvement, too. In the past, they have featured Musk in their advertising, such as showcasing his chainsaw-wielding appearance during last year’s Conservative Political Action Conference (CPAC), in an effort to boost turnout among their voters.

Filings offer insight into contested Senate primaries

The campaign finance filings also offer some clues about the fundraising strength of candidates in contested Senate primaries.

Progressive oyster farmer Graham Platner, who was mired in controversy last year over past social media posts, raised $4.6 million in the last quarter of 2025 from his campaign and has $3.7 million in the bank. Meanwhile, centrist Maine Gov. Janet Mills’s (D) campaign raised $2.7 million in the last quarter and starts off this year with $1.3 million.

In Texas, Rep. Jasmine Crockett (D) and state Rep. James Talarico (D) posted similar fundraising hauls — $6.5 million and nearly $6.9 million, respectively. Most of Crockett’s haul came from transfers from her House campaign. Talarico’s campaign also posted a cash on hand advantage — $7.1 million to Crockett’s $5.6 million.

Finance

Inheritance warning as Aussie kids face $320,000 tax hit: ‘Completely gone’

Published

1 day ago

February 2, 2026

Press Room

Inheritance warning as Aussie kids face 0,000 tax hit: ‘Completely gone’

If you inherit your mum or dad’s super fund, you can pay tax of up to 32 per cent. (Source: Getty)

Australians risk losing a huge amount in superannuation inheritance due to little-known tax rules. Older generations will transfer trillions of dollars in wealth to younger generations in the coming decades, with much of this money to come via superannuation and property assets.

Most families don’t realise that their kids could lose a third of their inheritance to superannuation tax. But Pivot Wealth financial adviser and Yahoo Finance contributor Ben Nash said this tax could be “completely avoidable” with a bit of strategy.

When someone passes away, their superannuation is split into two main parts: the tax-free component and the taxable component.

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If the money goes to adult kids or anyone who is not financially dependent on the person passing down the super, the taxable portion gets hit with a “death tax” of up to 32 per cent.

“On a $1 million balance, that means $320,000 that can be completely gone,” Nash explained.

The biggest component of most people’s super funds is the taxable component because it’s made up of any compulsory employment super contributions, salary sacrifice or tax-deductible contributions, and the growth and earnings on these funds.

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The good news is it is possible to reduce or avoid the tax altogether.

“The fix here is what’s called a withdrawal and recontribution strategy. It’s a pretty simple concept, although the rules are a little bit complicated,” Nash explained.

“Basically, while your parents are still alive and eligible, they can withdraw some or all of their super, pay no tax on the withdrawal, and then put it back into their super as a non-concessional or after-tax contribution.

“That shifts their super balance from taxable to completely tax-free. When you do that gradually over time, you can save literally hundreds of thousands of dollars in future tax.”

Your parents would need to be over the age of 60 and meet a condition of release (like retirement) so they can withdraw part of their super tax-free.

The rules around withdrawing and contributing to your super fund, along with how much you put in, are complicated, so it is important to get financial advice from a professional.

The Productivity Commission previously estimated that $3.5 trillion would be passed on from Aussies aged 60 and over by 2050. More recent JBWere figures put the figure at $5.4 trillion over the next 20 years.