The court’s worst blunder, she said, was its 2010 decision in Citizens United "because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”

This is what Justice Ginsburg has said, but is not clear without a bit of guesswork which she means.  But it seems to be about “what has happened to elections", including cost, and not so much how the conduct of elections translates into bad or corrupt government.  One cannot read too much into it: the comment is short, but her few words describe a problem with the electoral process.

Distortion of that process, or the interference with its ideal functioning, is a major worry for those observing money in politics, separate from any consequences for the integrity of government that the politicians, once elected, are responsible for running. This electoral corruption of elections is different from the quid pro quo corruption of government that animates the strictly constitutional and legal debate.

In Friday’s New York Times, Stuart Stevens refers to just the electoral impacts of campaign finance when discussing the effects of Super PACs in altering the character of Presidential primary competition.  A number of the now 17 candidates entering the Republican Presidential primary have jumped in with the confidence that, with a Super PAC at their side, they have the resources to hang in there for a spell. Doing well in the first primaries is no long an invariable condition of viability.  Stevens is not all that worried about it: he likes the free-for-all.  Others are less sure.

These understandings of “corruption” can be, and often are, conflated, but are very different.  The case against Super PACs as agents for electoral corruption is straightforward: a handful of individuals can float a candidacy lacking in more general public support and keep it artificially alive.  The costs increase for other candidates; debate stages are crowded with contenders who are not truly viable over the long-term; and the mechanism by which public preference is measured is skewed.

Perhaps for this reason, it goes unnoticed that arguments directly related to government corruption—and proposals for reform based on them—seem, by contrast, increasingly clouded and tenuous.

It is understandable that the D.C. Circuit's Wagner decision upholding the federal contractor ban would attract a good bit of attention.  The federal courts are suspected of harboring animus toward the campaign finance laws and here is a major decision going the other way and on fairly broad grounds.  So it has been described as having the potential to be highly significant.

The decision was notable for the clarity and thoroughness of its presentation.  The Court also deftly reinforces the available authority by use of case law stressing the particular dangers presented by political pressure on, or from, government employees.  A strength, perhaps also a surprise, was the unanimity of the opinion.

It was also a relief to the decision’s admirers that the Court left open the question of whether federal contractors barred from contributing could make independent expenditures, or contribute to a Super PAC.  So this fight is for another day. Hopes have been raised within the reform community that the Court's emphasis on the special threats posed by federal contractors’ direct giving might justify limits on their independent spending.

This is one impression the case leaves – that without dissent, and for this class of contributors, the Court was prepared to affirm unambiguously affirm the government’s regulatory authority.  But then, after a step back, Wagner also illustrates how much excitement in this day and age of declining expectations about the campaign finance reform laws can develop around a case with limited practical effect that exposes problematic features of the current regulatory regime and its defense.

For all the study expended on public corruption and possible measures to control it, few take seriously or pay much attention to the “ethics” rules that Congress makes for itself.  Something interesting is going on here.  On the one hand, supporters of campaign finance reform are quick to defend Congress’ legislative handiwork over the years.  Defenders of McCain-Feingold deny that it was infected with incumbent self-interest.  Upholding the new law against constitutional challenge, the Court in McConnell v. FEC even situated it within a long history of Congressional steps to combat corruption, characterized as   “careful” and “cautious” and deserving of deference. 540 U.S. 93, 117 (2010)[citations omitted].  Yet when Members prescribe rules to govern their conduct in dealings with supporters or donors, the applause is thin and it is rare that legislators get even the benefit of the doubt.

It is possible that an important part of the story has been missed, or underplayed, and that the Supreme Court may have the opportunity to rectify, if only indirectly, the imbalance.

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.

A few questions and comments have passed back and forth on the election law listserv about a procedural question raised by the Ravel-Weintraub petition to the FEC for a rulemaking: would the two Commissioners apparently filing this petition in a private capacity have to recuse themselves from voting on it?   But there is also a question, not so far discussed, of other consequences that could attach to their decision to raise certain issues in this form.  Potential recusal is part, not all, of the problematic course that this initiative could take.

The Commissioners wish to have the Commission "clarify" two issues they claim to have been thrown into some doubt by Citizens United.  They are concerned that there is some uncertainty about “whether and to what extent” foreign nationals and foreign owned or controlled US subsidiaries can be involved in making corporate independent expenditures.  A second clarification is intended to leave no doubt that employers, now prohibited from coercing their employees into making PAC contributions or facilitating candidate fundraising, may also not direct or pressure them into supporting independent expenditures.

If there was doubt about the law on either issue, the Commissioners have now sanctioned and indeed deepened it.