If the uses of campaign finance rules to battle undue influence or its appearance will remain perpetually bogged down in disagreement – – particularly over whether the benefits of regulation justify the cost – – it does not follow that money in politics as a question for public policy has run its course. The question may have been overemphasized as one of corruption of the governmental process: corruption of the electoral process is also increasingly a concern, if less clearly and distinctly articulated. Critics of the condition of campaigns cite a range of problems with them, most recently and with rising alarm the candidates’ and parties’ loss of control to “outside groups” —Super PACs and (c) organizations—that operate under a different set of rules.

An astute piece by Mark Schmitt refocuses the argument on that point—the role of money in distorting the operation of the electoral process. He singles out for attention how a select community of donors influence the selection of candidates and the presentation of issues, raising questions of accountability and of the quality of voter engagement. This perspective has major implications for reform programs.

A few key points that emerge from a first reading of the Roberts opinion:

1.  The Standard of Review for Contribution Limitations

The Court decides not to address the question directly and so it leaves undisturbed, at least in formal terms, the different standards of review, one rigorous and one less so,  employed for "contributions" and "expenditures," respectively. At the same time, one might ask whether, in any practical application, the differences between these standards matter much at all. This is because the Court continues to insist on a very rigorous definition of the necessary government interest in regulation – actual quid pro quo corruption of candidates or its appearance – and it also rules out an expansive use of anti-circumvention theories, usually highly conceptual as in this case, as a means of satisfying the requirements that any regulation of speech be "closely drawn" to match the government's interest. There will be ample debate in the coming days about whether the Court has effectively adjusted the burden against the government in contribution cases without actually tampering with the standard of review.

A federal judge once opined that the federal campaign finance laws were hard to follow, and the same perplexity has been expressed by the Supreme Court—directly, in the course of oral argument, and somewhat less directly in an opinion of the court.  See Citizens United v. FEC, 558 U.S. 310, 334-35 (2010) (Kennedy, J.).  Conflicts over the constitutionality of various enactments and rules are common.  And much has been written about the  use and misuse of the heavily regulated legal process to harass, wear down or disgrace political adversaries.

Notwithstanding all of that, the beleaguered participant in the political process looking for legal advice can run into trouble when shopping for free or discounted legal services. Under federal and numerous state laws, these services are a contribution, like any other “in-kind” contribution, with some exceptions.  A fully  individual volunteer effort is typically permissible.  Or a firm can donate but not bill for the time of its lawyers,  provided the services are solely for the purpose of assuring compliance with the law  and the value of the services is disclosed.  As soon as life becomes more complicated, getting the help of a lawyer runs into contribution limits or restrictions on the sources of funds.