The New York Times Editorial Board has returned, as it reliably does, to the subject of money in politics.  It is taking stock of campaign finance in this year of the unexpected, and it argues that “big money” has adjusted its strategy, especially in the Republican ranks, where donors spooked by Trump and fearful of loss are supposedly moving money “down ballot.”  This may prove to the case, or it may not, but the editorial underscores the point that the more times change, the more certain arguments remain the same and yet, for that very reason, may raise unintended questions.

The standard reform case has long disputed that it is concerned with the amount of money in politics.  It is argued that none of the regulatory measures advocated have as their purpose a limitation on how much is spent.  But the Times goes back to just this anxiety—“the “vast amount of money sluicing through the political system,” the breaking of all spending records, the “frenzied pace” to raise and spend more of it.

The same reform argument that disputes that it is focused on volume also usually denies that its goal is to channel money into more productive and healthier uses-- cleansing the system of dirty politics or negative campaigning or manipulative advertising. Here again, the Times shows that old habits die hard.  It is troubled that so much of the spending underwrites “toxic advertising.”  It notes the descent of non-profit activity into “bare-knuckle” politics.  And it adds the complaint that there is excessive waste in the system, “enriching the new breed of fat-cat campaign operatives.”

What the Times does not account for—and what may pose the largest problem for reform driven by anxieties about volume and its salutary use—are the stakes that parties, political groups, activists, and others may perceive in the contests on which so much is spent.

To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. 

Buckley v. Valeo, 424 U.S 1, 27.  

This was the magnitude of the conclusion that the Supreme Court drew about the prevalence or appearance of corruption when it upheld the contribution limitations of the Federal Election Campaign Act. The corruption problem was “not… illusory” but its scope could ‘never’ be pinned down.  The Court then cited to the decision of the court below that had offered a few example of pernicious behavior with campaign funds in the 1972 presidential election. That was enough.

In the years following, enough has not proven to be as good as a feast.  And in search of the feast, anyone with a point to make about the campaign finance laws has been pursuing conclusive data to support it.  Corruption, or the absence of corruption, or the different definitions and measures of corruption, have all occasioned argument about the evidence, as has the related but different project of proving the “appearance” of corruption.  Argument about the evidence has yet to be settled and there's every reason to believe that they never will be.

The related but still distinguishable argument about political inequality has meant the same search for clinching proof that policy follows money and makes for a “rigged” system.  This week, the Center for Competitive Politics took after a widely reported paper about the correlation between the aspirations of the wealthy and the manufacture of public policy.  Noting that Rick Hasen and Larry Lessig had made use of the paper in arguing for a political equality theory of regulation, the CCP cited to critics of the scholarship and its conclusions.  In this critical view, which CCP evidently favors, there is substantial agreement across income groups about policy.  So the study that purportedly shows that we have a democracy of the rich cannot survive close scrutiny. CCP suggests that this should bring sharply into question the “lofty solutions” of reformers.

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 FEC tries to make up its mind, case by case, whether an organization distributing political material is a “press entity” engaged in a “legitimate” press function.  It concluded some time ago that Citizens United was a press organization when producing and distributing documentaries.  Advisory Opinion 2010-08 (June 11, 2010). This year it could not decide whether to bestow similar grace on another documentary producer, one who evidently does not care for President Obama.

Commissioner Weintraub tersely noted that the producer sent free samples of his product to millions of households in 2012 “swing states.”  This was enough for her to conclude that the producer may have been a "press entity" but it was not acting like one: it was not engaged in a “legitimate” press function.

The General Counsel reached a different conclusion and recommended that the FEC let things go—that it exercise its broad discretion in the producer’s favor.  It seemed to agency counsel that this particular press entity was acting legitimately enough. The General Counsel credited the claim that the free distribution was a commercial promotion and not only, if predominantly, in “swing states.”  The producer appeared to have demonstrated sufficient commercial or business purpose by arranging for sales through websites and via Amazon, and by contracting for streaming services through both Amazon and Netflix.

Commissioner Goodman, joining his Republicans in voting with the General Counsel, added a charge that the Democratic objections were a threat to press freedom.

Democrats and Republicans are disputing once again the agency’s record in dealing with contributions made to candidates through LLCs without disclosure of the original source.

The Republican Commissioners say that the law is unclear and, absent a clear purpose to evade reporting requirements, there is no justification for enforcement.  From the outside, Brad Smith agrees, and he questions why the Democrats won’t give up on enforcement actions on which there is no agreement and simply work on a rulemaking to establish clear, concrete rules.

Commissioners Weintraub and Ravel have replied with a Statement calling into question the Commissioners' good faith on the issue.  They were prepared, they note, to dispense with penalties in recent enforcement cases if the Republicans would join with them in a sensible and unequivocal statement of the law, and they don’t accept as sensible an intent or purpose-based test.

Taking the claims on each side at face value—crediting the Commissioners with meaning only what they say—one can ask: what is this argument about?  The very skilled Smith has shown that someone so inclined could defend the proposition that that there was really some doubt about the law and a donor might imagine that she could set up an LLC or use an existing one to make a contribution that would be reported only in its name and not in hers .  Elsewhere, here included, there has been doubt that there could be any doubt. Lawyers disagree.

But among the Commissioners the legal disagreements are at bottom the product of fundamental divisions over how this law--this kind of law--should be enforced. The Republicans believe, as they long have, that campaign finance laws enacted within constitutional limits should be limited in ambition and very clear.  The one goal is related to the other.  The narrower in scope, the less ambiguity in the law.  Behind this is the fear that laws of this nature are dangerous in potential effect on speech and association.  The extent of the danger varies with the extent of the ambition and of the ambiguity.  This puts the Republicans on guard, to the point of either paralysis or obstruction, depending on the point of view.