The Super PAC is the leading issue in campaign finance, and this is only superficially because it is new, exotic and, to many who write about it, alarming.  It has without question brought to head the fault line running through the contribution-expenditure distinction and expedited the obsolescence of the Buckley framework.  And it is forcing the question of whether we should be concerned in campaign finance about corruption or its appearance, or perhaps about something else.  And the answer is “something else.”

Lawrence Tribe and Floyd Abrams have each spoken or written recently about Citizens United, and their views, while not the same, suggest a continuing movement toward appraisals that are balanced between full embrace and outright condemnation. And, as Professor Tribe suggests, a measured judgment of the Court’ performance in that case helps with the re-orientation of the campaign finance debate that is long overdue.

“What is corruption, how should we define it, and why is it bad?”

This is the question put to the panel organized by Fordham Law and featuring key theorists about corruption and equality, all of them on the reform side.  It is available on video and well worth watching.  Rick Hasen has already reported that he and Larry Lessig came to a sort of detente – – coming closer, he said, “than we ever have before” on the role of money. This is an understatement.  By the time they were done, Lessig, champion of a theory of “dependence corruption”, and Hasen, vigorous exponent of a theory of political equality, agreed that they might be talking about roughly the same thing.  Somewhat more on her own was Zephyr Teachout, who argued eloquently for a morality-based view of corruption centrally concerned with shoring up civic culture.

This conference may have signaled the beginning of the end of the emphasis in leading reform scholarship on “corruption”, at least in the sense in which it has dominated the debate for decades.  The difference between Lessig’s position and Hasen’s is “semantic”, as Hasen now sees it, and Professor Lessig does not appear to disagree.  Quid pro quo corruption is not Professor Lessig’s primary concern.  In fact, he told the conference that when he meets with Members of Congress, he finds them generally to be well-motivated—good men and women, as the saying goes, caught up in a bad system.

It is no secret that the campaign finance debate has become fruitless and repetitious – – in short, exhausted. Mark Schmitt of the New America Foundation, a powerful progressive voice on reform, is one among a number of who believes that the entire question should be rethought from scratch. He has published a paper through a collaborative effort of the Brennan Center for Justice and the New America Foundation, arguing for a new framework built around a conception of political opportunity. He should win a large audience for what he says about the staleness and inaccuracies in the policy debate, and for the suggestions he makes for a change in direction.

Restrictions on the timing of campaign finance activity have met with mixed results in the courts. The injunction just issued in Houston blocks a ban on candidate fundraising in municipal elections to have taken effect except for the period beginning February of each election year through early the following year. Gordon v. City of Houston, No. 14-CV-3146 (S.D. Tex. Jan. 9, 2015). Other, but not all, cases have turned out badly for bans on contributions during legislative sessions.