The Louisiana Republican Party has enlisted Jim Bopp to mount a challenge to campaign finance restrictions on state political parties and so it is widely assumed that this is a Trojan Horse lawsuit with much wider significance for the survival of McCain-Feingold.  And of course if the three-judge court, then eventually the Supreme Court, decide the case a certain way, it could well help doom the 1970’s reforms--if not immediately, then eventually.  Rick Hasen, among others, has embraced the doomsday scenario, and the reform community has communicated to the three-judge court just this view of the stakes.

All of this may be true but this case and likely others to follow point to the costs of the bitter, stalemated discussion of campaign finance policy.  Louisiana and its lawyers have a reasonable case against the regulatory burdens on state parties: they stress that the dissatisfaction with aspects of these rules is bipartisan.  Thoughtful observers have concluded, as Brookings scholars recently did, that reforms are required.

But on this, as on other campaign finance issues, there is little likelihood of progress: no serious legislative engagement and, outside the Congress, a sharply divided political debate that mainly sorts out into hardline “reform” and “anti-reform” camps. The fight has largely moved to the courts, and from the reformers’ perspective, and with some uncertainty after Justice Scalia’s passing, this serves to put at risk the entire Buckley framework.  But if the outcome there is muddled or inconclusive, what will continue is the slow, steady rot of a regulatory regime characterized by ambiguity, complexity and evasion.  Neither of the alternatives is desirable.

The Director of New America’s political reform program, Mark Schmitt, continues to ask for a fresh and realistic debate about campaign finance, and this is notable because his reform credentials cannot be questioned and because he states his case well and thoughtfully.  In an op-ed appearing today in The New York Times, he argues, correctly, that the reversal of Citizens United would not be as consequential as some assume. The questions about the role of money in politics would not be settled: in the cause of limiting the role of money and opening up the political process to the widest range of speech (and candidacies), the demise of CU would be a “minor step.”  He argues for the more central importance of other means of accomplishing core reform goals, such as public financing on the model of enactments in New York City and Seattle.

Schmitt does not discount effects, both direct and indirect, of CU, but he points out that it is just one of a long line of decisions limiting Congressional authority to regulate campaign finance, all the way back to Buckley.  In one way or another, the First Amendment unavoidably narrows the path reform can travel.

But this does not mean that that path is so narrow that it is for all practical purposes impassable. One of the lines of attack on CU is that it puts in doubt the constitutional support for any effective campaign finance regulation.  This critique holds that contributions limits—ordinary, regular contribution limits—may be next on the chopping block.  The McCutcheon case is then cited as evidence—at least as a signal—that the end may be near.

Of course, the more dramatic reading of CU, a turn away from Buckley, could turn out be to the case.  A Supreme Court willing to go as far as it did—and farther than it needed to –could well look for other opportunities to bring down the Buckley framework.

On this question, it has been useful to consider Judge Merrick Garland’s record on campaign finance.  He wrote for an en banc Court of Appeals in Wagner v, Federal Election Commission, 793 F.3d 1 (2015), upholding a complete ban on contributions to candidates by individual federal contractors. It is a thorough, scholarly piece of work, and the Court was united behind it.

The 10th Circuit decided another disclosure case, Coalition for Secular Government v. Williams, on the mandatory reporting of “issue speech”.  It held that an individual collecting small sums to wage a campaign on ballot questions did not have to comply with registration and disclosure requirements applicable under state law to “issue committees.”  The "committee" that was really just a one-person enterprise was too "small scale,” the government's interests too limited: the cost in the particular case exceeded the benefits.

Did this result turn in any way on the nature of the advocacy – – that it was on issues, not for or against candidates?  The courts have long distinguished electoral from issue speech in determining the scope of constitutional protections.  Buckley v. Valeo, 424 U.S. 1(1976); Citizens against Rent Control v. Berkeley, 454 U.S. 290 (1981); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).  The government's interests in the case of campaign speech are more varied and include both the prevention of corruption and its appearance, and the assistance that disclosure provides to enforcement of contribution and other regulatory limits.  The 10th Circuit found those rationales “irrelevant or inapplicable to issue committees,” and while it has upheld Colorado's issue committee disclosure in principle on the strength of another interest, the voters’ informational interest, it concluded that this interest was insufficient to sustain the law as applied to the Coalition for Secular Government.

In campaign finance law, this distinction between issues and campaign speech has led reform advocates and their allies in legislatures to insist that while the difference may matter to constitutional analysis some of the time, this cannot be not the case all of the time.  They maintain that some issue speech is often campaign speech in disguise, and the Supreme Court in McConnell upheld "electioneering communication" disclosure on the basis of its finding that some issue speech was a “sham.”  Now the courts must entertain claims in as applied to cases that the plaintiffs’ issue speech is not a sham, that it is the real thing, and that it cannot be regulated as campaign finance spending.

The case brought by the Independence Institute against the “electioneering communication” disclosure requirement enacted by McCain-Feingold could prove to be highly significant.  This is an as-applied challenge; it contests the mandatory reporting of a "pure" issue ad if, within specified days prior to an election, it refers to a public official who is also a candidate for federal office. Some believe that this claim was foreclosed by McConnell v. FEC and Citizens United.  Independence Institute disagrees, arguing that the Court has never held that issue speech loses constitutional protection against disclosure, including donor disclosure, just because it airs during an election season.

What may stand in the way are summary comments the Court has made, most notably in Citizens United, where the Justices suggested that it did not matter to the application of the electioneering communication requirement whether a communication contained the “functional equivalent of express advocacy.”  558 U.S. 310, 369.  One reading is that the Court had no patience with disclosure objections, end of story. Even a "pure" issue ad—even such an ad run with no apparent electioneering interest or motive –is subject to disclosure if it includes a reference to a public official who was a candidate.

Perhaps this is what the Court intended to say, but this interpretation puts considerable weight on general statements and very little or none at all on the line of authority established by Buckley that campaign finance law could not override the distinction in the constitutional law between campaign and issues speech.

David Frum’s thoughts about Super PACs are a useful reminder that not all the objections to these PACs are the same, not all fall within the usual range of complaints about bought-and-sold government or deepening political inequality.  Frum suggests that PACs may be victimizing donors and suffering abuse at the hands of their consultants, and that candidates, behind claims of independence, can and do disclaim all responsibility for these organizations’ behavior.  This is a set of concerns a few steps removed from the once dominant worry that these PACs would swing elections.

This perspective opens up a discussion of whether Super PACs can be brought within reasonable regulation, to deal with specific problems, without limiting the goal to the difficult and contested one of limiting independent spending.  The choice is between a hunt for anti-coordination strategies, which is essentially the hope to undo the Buckley guarantees for independent expenditures, and developing more conventional rules to account for the emergence of these PACs and the gaps in the regulatory system within which they are operating.