In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse.  He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful. Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902. But he also assigns the Court heavy responsibility for the state of reform.  Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.

To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart.  But an account focused on the Court skips to the middle of the story; it leaves too much out.

The reforms were from Day One a source of contention; the question of their efficacy was raised from the beginning.  The law came into its own in 1976, with the amendments to the 1971 Act, and less than five years later, the outcry over ”soft money” had begun.  Fingers were pointed at the FEC, but when parties, candidates and “outside groups” were moved to test or work around the various restrictions and limits, and as the regulatory response became increasingly complicated and labored, there was reason to doubt that the law was working.

In Wisconsin Right to Life II, Justice Roberts dismissed the endless chase after loophole-closing that added to the rulebook without much effect.  He called it the “prophylaxis-upon-prophylaxis approach”—a new restriction necessitated by the failure of an old one, and likely to be followed by additional rules as each successive attempt to patch up the holes falls short. “Enough is enough”, he proclaimed.   Other Justices have lamented the law’s growing complexity.  In Citizens United, Justice Kennedy noted skeptically the hundreds of pages of rules. Justice Scalia at oral argument in McCutcheon pondered out loud the law’s incomprehensibility.

By the time the Roberts majority got to it, the law was shaky and the defense, in McCain-Feingold and before the Court, was a decidedly mixed blessing.  One has only to remember the government’s oral arguments in Citizens United.  The Deputy SG first suggested that the ban on corporate speech could sustain enforcement action against a corporation’s publication of a book containing “express advocacy”, and then, on re-argument, the SG advised the Court that its office’s answer had changed.  It was not fair to place the blame on flawed advocacy, when the original, controversial answer, if imprudent, was a reasonable reading of the statute and perhaps more faithful to its design and logic than the later disavowal.

The Court could and should have disregarded the entire episode: it was a sideshow, and the Court would have done better to resist the temptation to rule as broadly on corporate free speech rights as it did in a case that could have been decided on narrower grounds.  But this was one of a series of examples or experiences brought before the Roberts Court that exposed the limits of the 1970’s framework.  Did the Court gladly seize on these weaknesses to advance an “ideological agenda”?  It may well have.  But the “death spiral” Rick described was in progress long before.

To acquit the Court of full culpability for this “death spiral” is not to defend all of the decisions of which Rick is critical.   Some, like Citizens United, went too far; some, like the Arizona public financing case, came out the wrong way.  The errors don’t all run in one direction, away from regulation.  The judicial campaign finance cases, Caperton and Williams-Yulee, suggested distaste for fundraising and heavy spending, pleasing progressives enormously, but the distaste was for judicial campaign spending, and the reasoning in both cases was dubious.

The next round of reform will meet with the same failures as the last without a full accounting of what has gone wrong.  It can be stipulated that the Court has made things harder, especially for those committed to a resuscitation of the Watergate model, and the FEC is not free of blame for missing the opportunity for creative administration and constructive compromise.   But there have been major problems with the 1970’s law and these will also have to be faced squarely.