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.

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