The Tokaji-Strause report on independent spending is an enterprising and interesting examination of how a sample of politicians and political operatives experience the expanding universe of “outside money.”  It aspires to and largely achieves fair-mindedness in describing the limits of its project and of the conclusions drawn from this kind of research material.  And in a campaign finance debate in which the opposing sides scour fresh publications for rhetorical advantage, it offers something to both sides.

Both before and after the Senate Judiciary Committee’s hearing on a constitutional amendment on campaign finance, most of the press coverage understandably went to the dueling appearances of Senators Reid and McConnell. Somewhat lost were the statements delivered by Jamin Raskin and Floyd Abrams.  This is a shame. Each ably represented their opposing views, and when compared and contrasted, their statements bring out large issues in the campaign finance debate and the sources of sharp, enduring disagreement. Among those seemingly unbridgeable differences: what is “reasonable” to expect from the government in regulating political spending?

Rick Hasen asks whether, in a recent posting, I defended the Republican National Committee and Libertarian lawsuits challenging the limits on individual contributions for political party independent expenditures. He reads the post as just such a defense, while allowing for the possibility that I may disagree. My purpose was not to defend or support the actions. It was to question how the suit has been characterized by those who are unsympathetic to his goals. So I noted that the suit does not exploit a "loophole"; it is not a "soft money" lawsuit; and the RNC has not previously made this claim.

Following this posting, Norm Ornstein tweeted a vigorous dissent, saying that I had mischaracterized his position on the value of elevating to the Supreme Court former politicians with a real world view of politics.  He does not hold that position, he writes, and I see no reason to press the point in the face of this objection.  If his position is different from the one presented in the posting, then that should be noted and acknowledged, and no more need be said about it here.

Discussion of the role of politicians in the production of  campaign finance laws has produced striking differences of opinion.  George Will warns that elected officials will always serve themselves when writing the rules, and the outcome will more likely than not be unconstitutional.  But Norm Ornstein—dissatisfied with the Court’s polarized performance on campaign finance, among other issues—would prefer to see more politicians among The Nine. Off the campaign trail and on the bench, they can provide a “real world” perspective on law and politics that would make for better judicial review.