The five year anniversary of Citizens United finds critics largely where they stood when the opinion as first issued. Enthusiasts remain cheered and critics have lost none of their gloom. One difference is that time has passed and the inquiry has shifted from predictions about what CU will have wrought to claims about what the data shows about its effects. There is no agreement here, either, and any one analyst’s interpretation of data typically corresponds closely with her heartfelt views of the decision’s rightness or wrongness. Like most campaign finance debates, this one does not change minds.   We are in for endless and inconclusive argument about CU’s contribution to oligarchic rule, or its responsibility for “dark money, or for trends identified in the volume of money spent in politics.

These “big picture” disputes may block a clear view of other, more subtle but still significant changes in campaign finance doctrine and practice brought about or encouraged by CU. These are changes that can’t be precisely pinned to CU alone: the whole course of campaign finance doctrinal development was driven, principally by Buckley, in particular directions, and CU, after all, is an “independent expenditure” case the logic of which rests in the main on the 1976 case. But CU as a case about independent corporate spending, and about campaign finance regulation more generally, occupies a special, prominent place in this history, and it is in this context that it might be best understood.

In a second round, at the second level of the Chevron test, a federal district court has struck down the FEC's attempt to read a "purpose" requirement into the “electioneering disclosure” rule. Van Hollen v. Federal Election Commission, No. 11-0766 (ABJ), 2014 WL 6657240 (D.D.C. November 25, 2014). The general view is that the Court probably got this right and that to the extent that the issue has remained unresolved for this long, the FEC (once again) should take the blame. Those adopting this position point to Judge Jackson's opinion, in which she lays out in some detail the obscure route by which the FEC arrived at its position.

But, as so often, the FEC is paying handsomely for the complexity of the issue and the sins of others. A fair share of the responsibility for this disclosure controversy lies with the Supreme Court's garbled jurisprudence, which has produced confusion about the constitutionality of campaign finance requirements applied to “issues speech”.

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.

Heather Gerken writes clearly and with invigorating common sense about issues that aren't routinely given such treatment. She has set out to correct misreadings of Citizens United and she has an alternative reading of its importance. Rather than getting caught up in dreary doctrinal squabbles, she is calling for attention to the adjustments that campaign finance law and doctrine have induced political actors to make and the consequences for political institutions and the distribution of political power. Heather is progressive in her politics but refreshingly practical. In her Marquette Law lecture, she argues that by re-interpreting (or clarifying) the anti-corruption interest, Citizens United has helped move power to “shadow parties,” weakening the traditional political party and distancing the primary party actors in these shadows from the “party faithful” once relied on to press doorbells and hit the streets.