George Will looks at Super PACs and sees the consequences of “reform”: it’s a mess, he writes, the result of pressures for a “thoroughly regulated politics” that drives political actors to evade foolish rules.  The Constitution requires “unregulated politics”: recent reform experience shows that any other course is sure to end in a bad place.  The choice he sees is between thoroughly regulated campaign finance, which is untenable, or none at all.

An alternative account of unsatisfactory reform experience would focus on the type of regulatory program that has dominated the policy debate.  The FEC is somehow expected to regulate campaign finance as other agencies regulate food or drugs, or fair commercial practice, and the FEC best equipped for the job would be re-structured to take the politics out of its composition and operation.  Underlying all of this is a belief that the right rules enforced by the right people, and repeatedly revised in the light of experience, will bring errant political behavior under control and end cheating.  By this definition the “right” rule is one that attacks a questionable practice at its source, however complicated the rule and however challenging it will be to enforce it.

This regulatory model–associated with the “thorough” regulation of campaign finance–can be faulted for lacking modesty and proportion, and for being certain to frustrate expectations.   In the case of Super PACs, it has led to a quest to directly regulate political relationships, by providing that no friends or allies of the candidate can run a political committee that spends independently on her behalf, and then also to directly regulate speech, by attaching legal consequences to whether a candidate publicly approves of an expenditure by a PAC supportive of her candidacy.  Proponents argue that this thorough brand of regulation is required for the rules to have the necessary bite.

These initiatives seem destined to run into the trouble that has plagued their predecessors.   A campaign finance program that rests on rules structured along these lines may gain a temporary majority on the Court, as the McConnell case demonstrated, but the victory is likely to remain temporary.

Things might have to be kept simple.  On this point reform advocates might follow through to its logical end the implications of their embrace of the Supreme Court’s recent decision in Williams-Yulee.   There Court endorsed what is at best a half, if not a quarter, measure to limit the fundraising  practices of judicial candidates.  A candidate could raise money, just not in certain ways—not by personal appeal, signed or delivered orally.  A handpicked committee could do it, and it could do it under the candidate’s guidance and close supervision.  The candidate could then personally thank everyone who gave.

The reform community had feared much worse from this case and so took what they could get.  That’s part of it. But in taking what was offered, it seemed convinced that the half or quarter measure counted for something–that the ban on personal solicitations was a meaningful restriction on solicitation practices that could help mitigate the ill effects of judicial campaigning.

The foundation for this conclusion is hardly rock-solid.  Chief Justice Roberts had to resort to analogy in suggesting that the identity of the solicitor matters.  He suggested that the response to an appeal for the purchase of Girl Scout cookies may depend on whether the Girl Scout is asking and not, say, a friend or family member.  Maybe.  There is no hard data or evidence on which he relies—just this analogy.  There is also reason to doubt that it can be taken too far.  After all, the response to an “agent” asking for a principal may also vary according to whether the appeal is for the purchase of Girl Cookies, or for a campaign contribution.  The identity of the solicitor may make less of a difference in the latter case.

But the outcome blessed by the Court seemed to many good enough.  “Good enough” may be a productive perspective to adopt in considering rules for campaign finance in elections to other offices.  It is the perspective that has been from time to time urged in support of some of the existing rules.  “Stand by your ad”, for example, is a clear requirement, easily complied with.  But does it discourage negative campaign speech?  There is no evidence for this view, and yet still those supporting the reform believe that it does what it can and is better to have than not to have.  The same for the “earmarking” rules: they are not airtight, but not useless either.

The test of a rule on this alternative theory of regulation is whether it can do what, and only what, it is reasonably expected to do.  If more is demanded, compliance and enforcement can’t catch up with the demand, and you have the George Wills of this world concluding that the standards for effective regulation are such that we are better off with no rules at all.