How to establish priorities for the enforcement of the federal (or any) campaign finance laws is a difficult question. Congress has not specified them by statute and as the years go by, the Federal Election Commission has shown less rather than more agreement on what those priorities might be. As a result, sensible prioritization has sometimes gotten lost in partisan and policy conflicts. Adding to the problem is uncertainty about the enforceability of a law that is under pressure from changes in political practice and expanded constitutional limitations on regulatory action. Now the Commission is changing with the arrival of two new Commissioners, and a fresh opportunity is presented for discussion about the elements of a sensible, effective enforcement program. Ann Ravel, one of two new Commissioners, comes to the job with certain priorities in mind: disclosure and, more generally, “enforcement of significant matters.”

George Will has written about the problems that state campaign finance laws present for little people—“small groups and individuals” going about their business and discovering when they dip their toes into political waters that those waters can be treacherous. See Justice v. Hosemann, No. 3:11-CV-138-SA-SAA (N.D. Miss. filed Sept. 30, 2013); see also Galassini v. Town of Fountain Hills, No. CV-11-02097 (D. Ariz. Sept. 30, 2013) at 1 (involving the “rights of an ordinary citizen [to] organize a protest”). The few hundred dollars these individuals and groups raise to express an opinion about a ballot initiative can subject them to a registration and reporting statute. They may find that they must put off their political project until they have complied with a law about which, only a short time before, they knew nothing. Some imagine, rightly or wrongly, that a lawyer has to be called, and eventually the call goes out—for a lawsuit. Will blames the errant course of the law on the insatiable appetite of “liberals” for “the regulatory state.”

But it is not certain that “liberals” or “progressives” who support reasonable campaign finance regulation would all applaud the results in these cases. They might well agree that there is a problem, one that arises from certain theories of enforcement and their application, not from core progressive commitments.

After critically examining Lawrence Lessig’s “dependence corruption” theory, Bruce Cain concludes with a few of his own suggestions. Bruce Cain, Is Dependence Corruption the Solution to America's Campaign Finance Problems? (May 19, 2013). Available at SSRN: http://ssrn.com/abstract=2267187. One of these is meant to address the disclosure issues he sees presented by 501(c)(4) advertising to influence elections. As he has done before, Cain explores the grounds for compromise between those committed to disclosure and those who are afraid, and spirited in expressing their fear, that it invites political harassment and reprisal. His proposal is for full reporting but “semi-disclosure”: regulators would collect the information, reserving its use for enforcement purposes, and would provide the public only with data in the aggregate that is useful in identifying in broad terms the sources of candidate support and, perhaps, future officeholder indebtedness. Bruce Cain, Shade from the Glare: The Case for Semi-Disclosure, Cato Unbound (Nov. 8, 2010), http://www.cato-unbound.org/2010/11/08/bruce-cain/shade-glare-case-semi-disclosure.

Arguments about transparency have become hard to follow. Government can demand an accounting of money spent to influence politics or public policy; it can certainly compel disclosure of the paid, direct lobbying of legislators. But this is among the easier cases, after which there is disagreement—and confusion—about what the government has the power to do or members of the public have the right to resist.

David Keating and Senator Durbin had just such a difference of opinion. Durbin had asked the Center for Competitive Politics and other organizations (including the Cato Institute) to state for the record whether they had funded ALEC in 2013, and whether they had supported the organization’s “stand your ground” legislation. See, e.g., Letter from Senator Richard J. Durbin to John Allison, President and CEO of the Cato Institute (August 6, 2012). Keating disputed the request’s propriety. Letter from David Keating to Senator Richard J. Durbin (September 16, 2013). To his mind, the request was an act of intimidation and an abuse of office. Any association with ALEC was for political purposes, and Durbin, no friend of ALEC, was using official letterhead and a call for information to accomplish government intimidation of a political adversary.

The Campaign Legal Center has alerted its readers to a “flood” of challenges to campaign finance laws, and its message is that the reform advocates must remain at their battle stations. It is certainly true that interests hostile to any campaign finance regulation are hard at work; they might well believe that in this time, with this Supreme Court, their moment has come and no time should be wasted. But not all of these challenges are fairly lumped together and described as one indiscriminate assault against any and all reasonable regulation. A few raise questions that even those favoring reasonable limits on campaign finance should take—and address—seriously.