The District Court in New Mexico that struck down a municipal ban on corporate contributions broke away from other courts that, confronting the question, resolved it the other way under the Supreme Court’s decision in Beaumont. Giant Cab Company v. Bailey, No. 13-cv-00426 (D.N.M filed May 6, 2013); Federal Election Commission v. Beaumont, 539 U.S. 146 (2003). Rick Hasen is confident that Beaumont assures reversal if the case proceeds on appeal (which it may not). Maybe so; but the New Mexico case and perhaps others to follow put in question Beaumont as controlling authority for absolute prohibitions on corporate contributions. In the wake of Citizens United, the outcome remains unclear.

The SCOTUSblog symposium on the McCutcheon case continued with postings on various aspects of the speech and government interests involved in the contribution/expenditure distinction. Justin Levitt argues that overall, in granting more protection to expenditures, the distinction correctly ranks the speech values. The independent expenditure is pure self-expression, the spender’s “unique” view; the contribution helps the candidate’s speech, and as he may speak as he pleases, the message he communicates and the “unique” view of the contributor may well diverge. Tamara Piety affirms the Court’s view that “the expressive interests of contributions are minimal” and that restrictions on them may be necessary to protect against loss of public confidence in government, to enhance the competitiveness of elections, and to focus governmental energies on voters and not contributors.

What this analysis misses in following Buckley is the difference between an interest in speaking about politics, and an interest in effective political speech. The contribution and expenditure distinction is rooted in the first of these interests, and it is for this reason that the expenditure is the constitutionally privileged form of speech. In the Buckley view, the spender speaking just for herself may well treasure volume; the more said, the better, in order to drive the points home. By contrast, because the contributor supposedly speaks through another, “by proxy,” a strictly limited amount given still completes the expressive act of association and fully vindicates this more limited First Amendment interest. The contributor, however, in funding candidate speech is motivated by a deeper interest than Buckley accounts for—an interest in effective political speech.

Among the briefs being filed with the Supreme Court in the pending test of aggregate contribution limits, McCutcheon v. FEC, Docket No. 12-536 (U.S. 2013), Professor Lawrence Lessig’s will draw its fair share of attention. Brief for Professor Lawrence Lessig as Amicus Curiae Supporting Appellee, McCutcheon, Docket No. 12-536. In supporting these limits, he has introduced the Court to his “dependence corruption” theory of regulation. His choice to do so, in this case and in this way, may have been unwise, because whatever may be the theory’s utility or power in other contexts, it does not show especially well in this one.

Rick Hasen recently published an interesting article on the legal remedies for malicious lying in politics. Richard L. Hasen, A Constitutional Right to Lie in Campaigns and Elections, 74 Mont. L. Rev. 53 (Winter 2013) . He fears that “false and misleading speech may be increasing” in a “highly charged partisan atmosphere, in which each side cannot agree upon the basic facts,” and that the media, including the burgeoning fact-checking corps, “are not able to meaningfully curb candidates' lies and distortions.” Id. at 54. 55. Legal responses seem largely beyond reach, particularly after the Supreme Court’s decision in Alvarez v. United States, 132 S. Ct. 2537 (2012), which Hasen reads to indicate that “broad laws targeting false speech stand little chance of being upheld, regardless of topic.” Id. at 69.

A champion of campaign finance de-regulation, Senator Mitch McConnell has set his sights on discrediting one facet of the reform program—disclosure—that the Republican Party long proclaimed it could live with. He suggests a change of heart brought about by the misdeeds of political adversaries, but others have noted how the Republican turn-about on disclosure coincided with the Supreme Court’s decision in Citizens United. So it is worth considering again whether the case the Senator is making is an example of anti-reform politics, significant more as a tactical exercise than a serious statement of constitutional principle or public policy.