California has approved rules to better keep Super PACs in line.  The Fair Political Practices Commission has its eyes on the federal and other states’ election law controversies, noting in a press release that it is acting “on the heels of a national trend toward increased coordination between candidates and Independent Expenditure (IR) committees—a trend the FPPC seeks to stop.”  It wishes to enforce the “highest degree of separation that is constitutionally permissible “ to counter “new strategies being used by outside groups.”  Memorandum from Jack Woodside and Hyla Wagner, to Chair Remke and Commissioners, “Independent Expenditures: Adoption of Amendments to Regulation 18225.7” (October 5, 2015), at 3, 4.

The FPPC regulations already use “rebuttable presumptions” to identify the factual circumstances in which coordination is present or where there is good reason to suspect it. It has also provided for some exceptions—“safe harbors”-- for certain contacts between candidates and the IE committee.  In the revised rules approved last week, the FPPC adds to the presumptions and to the safe harbors.

The court’s worst blunder, she said, was its 2010 decision in Citizens United "because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”

This is what Justice Ginsburg has said, but is not clear without a bit of guesswork which she means.  But it seems to be about “what has happened to elections", including cost, and not so much how the conduct of elections translates into bad or corrupt government.  One cannot read too much into it: the comment is short, but her few words describe a problem with the electoral process.

Distortion of that process, or the interference with its ideal functioning, is a major worry for those observing money in politics, separate from any consequences for the integrity of government that the politicians, once elected, are responsible for running. This electoral corruption of elections is different from the quid pro quo corruption of government that animates the strictly constitutional and legal debate.

In Friday’s New York Times, Stuart Stevens refers to just the electoral impacts of campaign finance when discussing the effects of Super PACs in altering the character of Presidential primary competition.  A number of the now 17 candidates entering the Republican Presidential primary have jumped in with the confidence that, with a Super PAC at their side, they have the resources to hang in there for a spell. Doing well in the first primaries is no long an invariable condition of viability.  Stevens is not all that worried about it: he likes the free-for-all.  Others are less sure.

These understandings of “corruption” can be, and often are, conflated, but are very different.  The case against Super PACs as agents for electoral corruption is straightforward: a handful of individuals can float a candidacy lacking in more general public support and keep it artificially alive.  The costs increase for other candidates; debate stages are crowded with contenders who are not truly viable over the long-term; and the mechanism by which public preference is measured is skewed.

Perhaps for this reason, it goes unnoticed that arguments directly related to government corruption—and proposals for reform based on them—seem, by contrast, increasingly clouded and tenuous.

In the wake of the Wisconsin case, and in the arguments more generally about “’coordination,” it has been suggested that not too much should be made of the dangers of criminal investigation in campaign finance cases.  Hard-charging investigative techniques employed in the service of creative theories of liability are staples of white-collar criminal enforcement.  Why, critics such as Rick Hasen ask, should campaign finance law enforcement be different?

The question of whether criminal campaign finance investigations are just like any other is worth careful consideration, detached from a lively, high-stakes conflict like Wisconsin’s.  The federal experience is instructive.

The Wisconsin Supreme Court was badly divided on the “coordination” question that it resolved in favor ending an ongoing criminal investigation.  The majority and dissents expressed their disagreement in harsh terms, and there was a similar outbreak of ill-will or impatience among experts and seasoned observers trading views on the election law list serv.  Dividing the camps for the sake of convenience into progressives and conservatives: the former were appalled by the case and the latter overjoyed, and neither could believe how the other was reacting.  The case was either a nightmare for desperately needed reform, or a vindication of the rule of law in a struggle with political persecution and police state tactics.

But are the issues being fairly brought out amid all this vitriol, and is it necessarily true that the opinions on the coordination issues in Wisconsin must always and inevitably fall out along ideological and party lines?

By petitioning their own agency for a rulemaking, Commissioners Weintraub and Ravel have found a novel way to charge their colleagues with fecklessness. Call it a populist gesture: they are stepping out of their roles as administrators and issuing their appeal from the outside, as members of the general public. They may have done all they could or intended to do with this Petition, which was to publicize their grievances. Or they may have sought to add to public understanding of the grounds of this grievance-to enlighten and inform, and not only turn up the volume of their complaint.

A first point—minor but worth considering-- is whether this agency needs another quirky procedural controversy. What does it mean for two Commissioners, one of whom is agency Chair, to dispense with their formal roles and petition as citizens, filing a petition on plain paper without their titles and just the Commission’s street address? Will they recuse themselves from voting on the petition as Commissioners? Will they testify before themselves?

One explanation provided to USA Today is that it will allow for a hearing at which the general public will be heard. But such a hearing has been held, and the Chair could have unilaterally arranged for another, as she did recently in convening a forum on the role of women in politics.

The answer to this may be no more than: it does not matter, because the Petition serves only to make a point. A sympathetic observer would call it a cri de coeur; one less sympathetic might see it as a PR maneuver. What might unite the two sides is merely their agreement, for entirely different reasons, that the Commission is not in good working order. The risk of the petition initiative is that rather than move the discussion to a better place (hard as that is), it sends a dreary message about the state of the agency.