Finance
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.
Before seeking a new referendum MPS needs to rebuild trust in the community through completing state audits, putting in place controls to prevent overspending and routine reports to the public.
For MPS Superintendent Brenda Cassellius, who just wrapped up her first year leading Milwaukee’s public school system, her tenure has been punctuated by some very big numbers.
The first is $252 million. That is the amount of new spending voters narrowly approved in an April 2024 referendum to support operations in Wisconsin’s largest school district. Just months later, MPS was rocked by revelations the district was months behind in filing key financial reports to the state, which led to former Superintendent Keith Posley’s resignation.
The second is $1 billion. MPS faces a deferred maintenance backlog exceeding $1 billion. The district’s enrollment has declined 30% over the last 30 years, leaving many schools at less than 50% full. That, in part, is driving a plan to close some schools and to improve others to help lower costs.
The final is $46 million, the deficit MPS was running for the 2024-25 school year, an unexpected shortfall which has led to hundreds of staff layoffs.
Getting the district’s accounting, budgeting and financial reporting back on track has dominated Cassellius’s first year at MPS. In an April 15 interview with the Journal Sentinel’s editorial board, she talked in detail about the challenges putting that into order and progress she sees in restoring transparency into its operations.
State funding and aging buildings create budget nightmares
Cassellius says state needs to keep up its share of school funding
In an interview with the Journal Sentinel editorial board, MPS leader Brenda Cassellius says budgets and buildings are her two top worries.
Cassellius said the on-going budget crisis is her top concern. She said the state’s failure to live up to its share of funding is exacerbating MPS’ budget woes. A group of school districts, teachers and parents filed suit against the state Legislature and its Joint Finance Committee claiming the current state funding system is unconstitutional and prevents schools from meeting students’ educational needs.
Funding for special education is especially critical. About 20% of MPS students have disabilities, almost twice the share of the city’s charter schools, and the average of 14% across Wisconsin.
“What’s keeping me up now, you know, is really just the budget crisis we’re in, with not only this year but multiple years going out without additional state aid, we’ve been not getting funding for what our needs are for our students, and particularly our students with special needs,” she said.
Although the state budget increased special education funding to a 42% reimbursement rate, the actual rate has been about 35%. Another component to the budget headache is the age of MPS buildings. The average age is 85 years-old compared to 45 across the nation.
“We have just kicked this can down the curb or kicked it down the street or whatever you call it for too long. And it’s time that we really take on a serious conversation about the conditions of the learning environments in which we send our children,” she said. “Particularly in Milwaukee Public Schools, we serve the most vulnerable children. Children who have language barriers, children who have disabilities, children in high-concentrated poverty.”
What needs to happen before MPS seeks another referendum
Voters need to be comfortable MPS has made tough budget decisions
In an interview with Journal Sentinel editorial board, Brenda Cassellius said voters will need to see budget improvements before seeking more spending
Cassellius said MPS will definitely need to go back to voters for a new referendum in the future. In addition to the 2024 measure, voters approved an $87 million plan in 2020.
Before doing that, she said the district first needs to rebuild trust in the community through completing required state audits, putting into place controls to prevent overspending and routine reports to the school board and public about finances.
“I don’t think that the voters are going to want us to bring something forward until they feel comfortable that we have done the cleanup that is necessary,” she said. “And we’ve built the trust that we have the sufficient controls in place.”
In the interim, she’s hoping the state will meet its constitutional responsibility to adequately fund public schools.
“What the public expects is you know where the money is, you’re spending it as close as you can to children, you’re getting good on the promise around art, music, and PE, and the things the public said they wanted to fund,” Cassellius said. “And they want their kids to have so that they have a quality education and an excellent education in Milwaukee Public Schools, and that they had the right amount of staff that they actually need. In the school to be safe and to run a good operation.”
Rebuilding finance staff in wake of $46 million in overspending
MPS is rebuilding school finance staff in wake of reporting lapses
In an interview with the Journal Sentinel editorial board April 15, MPS superintendent discusses accountability for district’s financial problems.
The $46 million budget shortfall from the 2024-25 school year started coming into view last fall and was confirmed in mid-January. Cassellius noted that in addition to hiring a new superintendent, MPS also parted ways with its comptroller and CFO.
“We are really rebuilding the personnel and staff of the finance department. That is what’s critical, is having the right people in the right seats doing the work,” she said. “Also critical is making sure that you have the right controls in place. The audit findings found that we did not have proper controls in place and now we have those proper controls in place and when we find things we put new SOPs in place and that is what any business does.”
Identifying that shortfall, though painful, was the result of better accounting.
“Being three years behind in auditing means that you don’t have full sight on your actual revenues and expenditures. And so we have now full sight of our revenues and our expenditures and that’s why we were able to see this new deficit of $46 million,” she said. “And we still continue to work with DPI on those processes to make sure that every month we’re doing monthly to actuals and doing those accounting, reporting that to the board. In a way that is consumable to the public that they can understand.”
Jim Fitzhenry is the Ideas Lab Editor/Director of Community Engagement for the Milwaukee Journal Sentinel. Reach him at jfitzhen@gannett.com or 920-993-7154.
Property markets move in cycles, and with interest rates rising and other pressures like high fuel costs, some markets are clearly slowing down. Many first-home buyers who have only ever seen markets going up are conditioned to think that when purchasing, competition is always intense and decisions need to be made quickly.
In those times, buyers often feel they need to act fast, stretch their budget and secure a property at almost any cost. But things have definitely changed.
In a softer market, the dynamic shifts. Properties take longer to sell, competition thins, and it’s the vendors who begin to feel pressure.
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For buyers who understand how to navigate that change, the balance of power quickly moves in their favour. The opportunity is not simply to buy at a lower price. It is to negotiate from a position of strength.
If that’s you right now, these are the key skills first-home buyers need to take advantage of in softer market conditions.
The most important shift in a soft market is psychological. In a rising market, buyers often feel like they are competing for limited opportunities. In a softer market, the opposite is true. There are more properties available, fewer active buyers and less urgency overall. This gives buyers options.
When buyers understand that they are not competing with multiple parties on every property, their decision-making improves. They are more willing to walk away, compare opportunities and avoid overpaying. Negotiation strength comes from not needing to transact immediately. When that pressure is removed, buyers are able to engage more strategically.
One of the most common mistakes first-home buyers make is continuing to apply strategies that only work in rising markets. Auction urgency is a clear example. In strong markets, auctions often attract multiple bidders and create competitive tension. In softer conditions, properties are more likely to pass in, shifting the process away from a public bidding environment into a private negotiation.
This is where leverage increases.
Private negotiations allow buyers to introduce conditions that protect their position. These may include finance clauses, longer settlement periods or price adjustments based on due diligence. Opportunities that are rarely available in competitive markets become standard in softer ones.
The Board of Visitors Finance Committee met Thursday and approved a 3.6 percent average increase in tuition, a 4.8 percent average increase in meal plan costs and a 5 percent increase in the cost of double-room housing for the 2026-27 school year. The approval was unanimous amongst Board members, though some expressed resistance to the increases before voting in favor of them.
The Committee heard from Jennifer Wagner Davis, executive vice president and chief operating officer, and Donna Price Henry, chancellor of the College at Wise, about reasons for the raise in tuition and rates. According to Davis and Henry, salary increases for professors and legislation passed by the General Assembly contribute to tuition and rates increases.
The Finance Committee, chaired by Vice Rector Victoria Harker, is responsible for the University’s financial affairs and business operations, and the Committee manages the budget, tuition and student fees.
Changes in tuition vary between schools, with the School of Law seeing at most a 5.1 percent increase, the School of Engineering & Applied Science seeing at most a 3.2 percent increase and the College of Arts and Sciences seeing at most a 3.1 percent increase in tuition for the 2026-27 school year.
For the 2026-27 school year at the College at Wise, the Committee also unanimously approved a 2.5 percent average increase in tuition, a 3.8 percent increase in meal plans and a 2 percent increase in the cost of housing.
Last year, the Committee approved a 3 percent average increase in tuition, a 5.5 percent increase in meal plans and a 5.5 percent increase in the cost of housing for the University.
Davis cited increased costs as the primary reason for the approved increase in tuition. She said that the budget that could be passed by the General Assembly for June 30, 2027 through June 30, 2028 could increase professor salaries — University professors receive raises via this process. Davis said that the Senate and House of Delegates have separate proposals dealing with the pay increases that are currently unresolved, with House Bill 30 raising salaries by 2 percent and Senate Bill 30 raising salaries by 3 percent.
Davis said every percent increase in faculty salaries costs the University $15 million annually, and the Commonwealth will increase funding to the University by $1-2 million to help pay for that increase. According to Davis, the most common way to stabilize the budgetary imbalance caused by raised salaries is through tuition raises.
Beyond the increase in salary, Davis cited the minimum wage increase, inflation and Virginia Military Survivors & Dependents Education Program as increased costs to the University. VMSDEP is a program that gives education benefits to spouses and children of disabled veterans or military service members killed, missing in action or taken prisoner. Davis said that the program is “partially unfunded” and could cost the University somewhere between $3.6 to $6 million, depending on how many students qualify for the program.
Davis spoke on other contributing factors to the increase in tuition, specifically collective bargaining — which allows workers to bargain for better wages and working conditions.
“If we look at other institutions or other states that have collective bargaining, [collective bargaining] does put an upward pressure on tuition,” Davis said.
Prior to Thursday’s meeting, the Committee heard the proposal for tuition increases from Davis and Henry April 6 in a Finance Committee tuition workshop with public comment. During the tuition workshop, tuition increases ranged from 3 to 4.5 percent for the University and 2 to 3 percent for the College at Wise. Both increases approved Thursday are within the ranges originally proposed.
Meal plan costs, on average, will be increasing by 4.8 percent in the upcoming academic year. Davis said that the University has been expanding dining options with the opening of the Gaston House and new locations for the Ivy Corridor student housing that is still in progress. She also said that the University has been taking steps to increase the availability of allergen-friendly food options.
Davis shared that the 5 percent cost increase in housing is due to the expansion of student housing in the Ivy Corridor. Davis also said that there will be 3,000 new units added to the Charlottesville housing market by 2027, of which 780 beds will be for University housing. Davis said that she hopes the Ivy Corridor housing would “free up” the city housing supply by having more students live on Grounds.
Board member Amanda Pillion said she was “concerned” about how tuition increases would harm rural families — she said the constant increases in cost could make a University education out of reach for middle-income Virginians.
“This is the second governor I’ve served under. Both times I’ve heard affordability, affordability, affordability,” Pillion said. “We need to really be conscious of the fact that … there is a large group of people that [are middle-income] that these increases [in tuition and fees] are really tough for.”
The Committee also approved a renovation for The Park — an 18-acre recreational hub in North Grounds — which will cost $10 million. As part of the renovation, The Park will include a maintenance facility, storm water systems and a maintenance access route. Davis said the renovation will address safety and security issues for the 200 people that use The Park daily. According to Davis, the University will use $2 million of institutional funds and issue $8 million of debt to fund the renovation.
The Finance Committee will reconvene during the regularly scheduled June Board meetings.
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