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.

When New York Times columnist Tom Edsall wrote recently about the winners and losers in each phase of campaign finance, he reminded readers how things have often turned out differently than predicted.  Not every projection was wrong, of course: some experts were right to imagine that the parties would decline and “outside groups” would prosper after McCain-Feingold.  But in the particulars, and especially after the courts began carving up the new law, the changes have included surprises, like the coming of Super PACs.  Now there is an interest in adjustments to respond to the unexpected and undesirable, and the reinvigoration of political party organizations has received the most attention.

How far to go is an outstanding question among those who favor aid to parties.  The Brennan Center counsels against substantial increases in contribution limits or doing away with the limits completely.  Heather Gerken and Joey Fishkin concur.  They worry that greatly expanded sources of private funding for parties could be a mistake, and as their writing on campaign finance is always fresh and provocative, it is well worth exploring their concerns.

On the same day, two well-informed observers have written that measures, including steps toward deregulation, should be considered to strengthen political parties.  Tom Edsall who has studied campaign finance for years stated his position in a column he authors for The New York Times.  The Brennan Center at NYU put out a report, entitled Stronger Parties, Stronger Democracy, and revealingly, the subtitle is Rethinking Reform.  In both cases, the analysis and associated recommendations are built on the recognition that times have changed and that reform has to be "rethought."

Edsall goes farther than the more cautious Brennan Center.  He would have all limits on contributions to parties lifted, with only the requirement of what he refers to as "maximum transparency."  In his view, the last decades’ effort to limit money in politics has failed.  At the same time the winners and losers created by reform enactments have not sorted out as reformers had anticipated. Corporations and large donors have done quite well.  So have lawyers and television stations.  Overall confidence in the political process has not changed for the better.  Edsall argues that better funded parties will enable the system of government to function better, because party leaders will have more tools at their disposal to manage their extremes and broker constructive compromises.

Larry Lessig is not the first single-issue candidate in American presidential history, but from Tom Mann’s perspective, he picked the wrong issue.  Mann says that to isolate money-in-politics, to treat it as the key to solving all other problems, is to “dumb down” politics.  He takes this to be a disservice to voters, a deception, and a diversion from the discussion of other issues that have to be tackled and the successful resolution of which will not decided by campaign funding.

It is a harsh attack, and a surprising one from Mann, a stalwart supporter of campaign finance reform.  Lessig has responded by suggesting that Mann is in no position to accuse him of gross oversimplification: he notes that Mann has singled out the Republican Party as the culprit in the dysfunctional polarization of national politics, and this, Lessig contends, is an even “simpler story” than campaign finance about what ails the country.

Larry Lessig, articulate and impassioned, keeps at the task he has set himself in arguing the case for political reform. It has led him to experiment: as in setting up a Super PAC, which is not what a campaign finance reformer would be expected to do. Now he is on to something new, considering a run as a Referendum President who would bid for a mandate for political reform and then, if successful, serve only as long as needed to bring the reform about. Then power would pass to the Vice President and he, Lessig, would depart the stage.

This “referendum” candidacy is also a reform proposal, a call to evaluate on exceptional criteria the merits of a Presidential campaign and the performance of a President. It can be considered separately from the soundness of the specific measures that, as President, he would press Congress to adopt on campaign finance, voting rights and redistricting. The question the candidacy raises is how he proposes to campaign for those measures, and what sort of Presidency he is arguing for, and one has to assume that he is promising a candidacy, then a Presidency, that meets fundamental expectations for a better, reformed politics. It would take the voters seriously, engaging them in a substantive exchange on the merits of this way of thinking about the election of a President.