Supreme Court nominee Neil Gorsuch has scattered few clues about his campaign finance jurisprudence. Commentators have had to make do with his concurrence in Riddle v. Hickenlooper, 742 F. 3d 922 (2014), a case involving a concededly defective Colorado law that discriminated against minor or independent candidates in the structure of contribution limits. Gorsuch’s concurrence could be read to question the more permissive standard of review that the Supreme Court in Buckley established for the defense of contribution limits. The Court allowed for scrutiny of contribution restrictions a step or more down from the strictest review: not attention to whether the government had a “compelling” interest and had “narrowly tailored” the means to achieve it, but a question of the state’s “sufficiently important interest” and the use of means that are “closely drawn.”

Gorsuch wrote in Hickenlooper that the two standards were “pretty close but not quite the same thing.” Id. at 931. To some observers, they seem not that close at all. They fear that any shift to a more rigorous standard would be the next and perhaps decisive blow to meaningful campaign finance regulation. The stakes, they believe, are high. But how high? And are there other questions to be raised about the political assumptions, perhaps also effects, of the leeway provided for the imposition of tight limits on contributions?

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.

The Federal Election Commission’s job is hard, harder than many will admit, but the agency somehow manages to make it even harder. So now, five years after the fact, the FEC has decided not to investigate a donor's alleged use of an LLC to mask a $1 million contribution to a Super PAC.  The word of the non-decision got out before any member of the FEC could explain it or any of the case materials were released.

So naturally the agency looks somewhat silly.  Some might and do ask: how could it be that the alleged establishment of an LLC to mask the true source of a large contribution isn't even subject to an investigation?  And why would it take almost five years for that inconclusive result to be reached?  Maybe the case files once released, along with the explanations of the different Commissioners, will provide some answer to those questions.

The case did take an unusual turn in 2011 when the individual donor came forward, claimed that a lawyer had advised him that he could do this, and asked that the Super PAC amend its reports to disclose him as the true donor.  In other words: on the date that the complaint was filed and before the FEC began its review, the harm of the particular case was being redressed.  And presumably complicating matters was the donor’s contention that he acted on legal advice.

Professor Michael Morley looks to campaign finance jurisprudence as a guide to what the Supreme Court might do in the Evenwel person-one vote case. He argues that the Court has spoken decisively to the question of whether of certain ineligible voters--foreign nationals—have a right to participate in democratic self-government.  In Bluman v. Federal Election Commission, a three-judge court decision that the Justices summarily affirmed, the court held that foreign nationals may be barred from spending money, through contributions or independent expenditures, to influence elections.  800 F. Supp. 2d 281 (2011).  It follows from that, Professor Morley concludes, that foreign nationals need not be included in the population count on which state legislative apportionment is based.

Morley's use of campaign finance law is intriguing, and he finds this perspective missing from all the briefs filed with the Court in Evenwel.  But he did miss one, the Democratic National Committee's, which explicitly questions how US citizens in eligible to vote could be excluded from apportionment arithmetic – – that is, read out of the formally represented political community – – while enjoying a constitutional right to contribute to the same candidates who are free to reject them as constituents. (Note: I am on the brief, with other Perkins colleagues).  This is the case of minor children, 17 years and younger.  In McCain-Feingold, Congress moved to prohibit minors from making contributions at all, only to be blocked by the Court in McConnell.  Now minors remain free to contribute as a constitutional right, provided that the contribution is made knowingly and with their own money. Should the Court conclude that states may disregard minor children for apportionment purposes, it will have drawn the unappetizing picture of a representative democracy in which these young citizens receive representation only for purchase.

Morley agrees that this is an untenable result, and he would locate the line there, at US citizenship, and let Bluman do the work of keeping out foreign nationals (other than lawful permanent residents).  The next question is whether campaign finance jurisprudence translates all that neatly, and as Morley presents it, into the apportionment context.

In a thoughtful article, Michael Kang of Emory has taken on the question of whether de-regulated political parties, taking in larger sums of money, can truly act as a bulwark against polarization—or only as yet another agent of the wealthy and their policy preferences.  He doubts donors would expect from parties any less responsiveness or gratitude. If the committed class of large donors is ideologically polarized, it is hard for him to see how party officials could resist its demands and retain the freedom to move party politics toward the center, closer to the ground for compromise.

This is one aspect of the normative case against party de-regulation he would put up against views presented by Rick Pildes, among others. (He has other concerns: for example, that "even if de-regulation of party campaign finance assigns the right balance of power among party actors, it neglects distributional equality concerns that were once a main focus of campaign finance policymaking."  Kang, Michael S., The Brave New World of Party Campaign Finance Law (2015). Cornell Law Review, Vol. 101, 2016; Emory Legal Studies Research Paper No. 15-365, at 57. Available at SSRN: http://ssrn.com/abstract=2674406.)

On this question of the direction into which parties would be pushed by the larger donors, Professor Kang gives a fairly straightforward picture of the donor and her motivation, and of the relationship of donor to party official.  The donors on this account will give only on conditions; the party officials, to get the money, will meet them.  The well-to-do donors do not have multiple motives: their demands, at least as the party official would interpret them, are of the “all or nothing” kind.  Is this a fully satisfactory account?