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.

When the Supreme Court took up the McCutcheon case, and again when it was decided, commentators suggested that the Court might be poised to reconsider the constitutional foundations of contribution regulation. The Justices had done what they needed to do to expand and solidify the right to independent spending; now they would turn their attention, in the same deregulatory spirit, to contribution limits, perhaps laying the foundation for invalidating them. McCutcheon does not by its terms really justify this fear. It did direct attention to the question of how—and not whether—contributions are regulated. And other cases percolating in the court system have begun to confront those questions.

It may have been legal, or perhaps not, depending on the facts, which are so far not fully known.  But the use of  Twitter to feed polling information to outside groups lends itself to various conclusions about the state of campaign finance law.  The content of the FEC rule against coordination can be brought into question, or its enforcement criticized, or the problem can be passed off as another instance of shenanigans by a regulated community always exploring paths around the law.  Or the issue could be, more profoundly, the very conception behind the current anti-coordination rules.

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.

Spectators of campaign finance are waiting for the next big case, and many bets have been placed on the RNC's suit to lift the limits on contributions to party independent expenditure programs.  Now another entry into the sweepstakes: the question of whether an independent committee (or “hybrid”) can retain its independence if it also makes contributions, or functions within a family of related organizations that includes one making contributions.  See Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011).  At issue is the capacity of the self-proclaimed independent committee to collect unlimited contributions.