A recent posting here reviewed possible paths for campaign finance regulation: a determined attack on loopholes, a biding for time until scandal possibly arrives and allows for legislative reform and expanded opportunity for regulation, or an openness to rethinking the issue?

Which of these is chosen will be influenced by which aspect of campaign finance is thought to be really pressing: how much money is spent (volume); how it is spent (influence), and how much is publicly known about it (transparency). Of course, in any critique of campaign finance, from the left or right, there is a little bit of everything thrown in, but one of these three considerations is usually emphasized over the others.

Arguments about the prospects for campaign finance regulation now fall broadly into three categories: (1) close up loopholes; patch up the rulebook; (2) wait for scandal to break the logjam; and  (3) rethink the issues.  In recent weeks, we've had clear restatements of these alternatives.

This is the position I submitted to the New York Times’ “Room for Debate” Forum, on the question of the state of campaign finance regulation and possible directions for its future:

 

Forty years after the passage of the federal campaign finance laws, we have considerable experience with how they work, but the debate about them has become tired and repetitive. No one is happy with the situation as it now stands: not those who worry about corruption, not those troubled by the First Amendment cost of extensive regulation, and not those who yearn to bolster public confidence in the integrity of their government. There is everywhere evidence that reconsideration and rebuilding are in order.

At this time, we have going several distinctive programs for addressing contemporary campaign finance questions: (1) Reliance on strengthened “command and control” measures—that is, more reform to counter “circumvention” of the 1970s-era regulatory framework and rebuild it on a more secure footing; (2) Public financing proposals; (3) Deregulation; (4) Constitutional change, either through

(a) an amendment; or

(b) a change in the Court and its jurisprudence (pressing for the Court to adopt doctrinal changes, whether by expanding the corruption rationale or adding in another like political equality).

And then there is a fifth category, “soft regulation,” the leading example of which is Heather Gerken’s proposal that organizations that do not disclose their donors be required to affix a notice to that effect in their advertising.

Jim Rubens has lost, but the discussion of Mayday politics will continue. The issues it raises for progressives were raised to a new level of visibility by the news that the PAC was working  with Stark360 , a New Hampshire organization that opposes campaign finance reform and is generally hostile to progressive objectives.  Professor Lessig replied to critics with a clear and thoughtful defense, denying that he was  “compromising” on fundamental commitments.  He was not, he stressed, collaborating with Stark360 on anything on other than the election of Jim Rubens, and it was a strength, not a weakness, to join with adversaries in the search for “common ground.”

But it seems that this reply confuses the issue.  That Professor Lessig means  to advance the cause of reform, and that his joint venture with Stark 360 was launched (on his part) for that purpose alone, is not to be doubted. As in all matters political, however, the means chosen have consequences, and Professor Lessig underestimates the burden he carries to establish for progressives that the means are well fitted to his ends. In this case, in New Hampshire, he has yet to make the case.