Bradley A. Smith (Capital University Law School) has posted Originalism and Campaign Finance: A Response to Professor Lessig (13 pages) on SSRN. Here is the abstract:
This paper is a pre-response to Professor Larry Lessig’s forthcoming article, If Roe, Then Buckley https://ssrn.com/abstract=6803779 [noted here], and forthcoming in the Harvard Journal of Law & Public Policy. It is based on Professor Lessig’s remarks as presented at the American Enterprise Institute on January 26, 2026 (not necessarily the version published at SSRN or HJLPP. Professor Lessig argues that an “originalist” approach to the Constitution would require overruling Buckley v. Valeo. This paper examines evidentiary, methodological, and logical errors in Professor Lessig’s approach. Beyond the precedential value of Buckley, Professor Lessig’s approach is unsupported by originalism, as illustrated by the fact that virtually all originalist scholars and judges have taken a distinctly skeptical approach to limits on campaign contributions and expenditures. Justice Antonin Scalia, almost certainly the most important voice in the revival of originalism as a method of constitutional interpretation, took a dim view of regulation, and would even have held that the contribution limits tolerated by the Buckley court were unconstitutional, and that is also the position of the overwhelming majority of originalist judges and scholars. Regulation of campaign contributions and spending is not consistent with either the plain meaning of the First Amendment, or the understanding of the Amendment at the time of ratification, or at the time of ratification of the 14th Amendment.
Posted at 6:05 AM