This is an opinion piece co-authored with Sam Issacharoff,  appearing yesterday in Politico:

The money hunt for the 2016 election cycle is in full swing, and there is no surer sign of it than the first complaints recently filed by reform organizations. While, as in the past, there is intense interest in the likelihood of record-breaking sums and innovative spending strategies, this year, perhaps more than in the past, attention has turned to transparency. “Dark money” is dominating the campaign finance lexicon.

Current conversations on this topic have a Groundhog Day quality, and it seems that they are stuck between the dreary and the dreadful. Part of the problem is that nearly 40 years ago, the Supreme Court limited the objective of campaign finance regulation to the prevention of corruption or its appearance, and decades of debate ensued about what is and what is not corruption. And all this in the service of identifying when candidates and political parties come under the “undue influence” of money.

It’s time to retire the tired discourse of corruption and return to the core objective of giving voters access to relevant information. Disclosure today is best understood as a service to voters. Voters care about the “big money,” large contributions and expenditures in support of candidates. Those are the funds that most shape the issues raised and emphasized in campaigns and compel our attention.

A wing of the progressive reform movement, frustrated with other strategies, is turning to the carrot and the stick.  It program is to use rewards or punishments to exact pledges or other commitments from candidates and officeholders.  It will dangle the prospect of financial support, wield the threat of denied campaign funding, and maybe mete out punishment for resistance by giving money to the opposition.  All of this is described by Derek Willis in a recent New York Times Upshot piece that notes what is long been known – – that voters do not rank campaign finance regulation high among their priorities.  Unable to rely on public opinion or pressure, these reform advocates look to cut a deal with current or prospective legislators, to make them an offer they cannot refuse.

The FEC last week approved a Proposed Petition for Rulemaking that seeks agency action in various ways to clarify and strengthen public disclosure requirements and expand, as authorized by Congress, the Administrative Fines Program.

The attorneys filing the Petition represent varied and bi-partisan professional backgrounds and experiences. Their point overall is that, while there are obviously major differences separating the Commissioners on a number of issues, the FEC can take effective action on administrative matters of importance over which there should be little disagreement. One point of departure is bringing order, clarity and consistency to its reporting form and guidance. This is a disclosure program around which the entire “regulated community” can rally, with clear benefits to the public.

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.

Just before the turn of the year, the Tenth Circuit decided that Citizens United, the organization, was entitled to the Colorado campaign finance law’s press exemption and so was not required to file public financial reports when producing and distributing a political documentary. Citizens United v. Gessler, 773 F.3d 200 (10th Cir. 2014). Colorado has construed the exemption broadly to apply to online publications and bloggers as well as to print and traditional media outlets.  But the State urged that the Court distinguish between entities about which the voters know or could easily learn something, and those hiding behind empty names lacking cue or content and having no extended operating history that listeners or views could consult for useful information.  The latter organizations—the “Citizens for a Better America” or “People for Justice” —are engaged in what it termed called “drop-in advocacy” during election seasons.

The Court, impressed with the distinction, still rejected its application to Citizens United. CU was well known; there was ample information available to anyone caring to seek it out, and the informational interest of voters was adequately protected. On its reading of Citizens United, the Court emphasized the interest supporting disclosure as the voters’ informational interest, not the deterrence of “corruption” or its appearance.

This raises the question: for purposes of the disclosure requirements based on the voter’s informational interest, is it possible to distinguish between an ongoing enterprise of known purpose and the shadowy “drop-in” advocacy group which is often here today and gone tomorrow?  And if it is, is that interest served primarily by disclosure of donors, or by other information about its organization and purposes?