President Trump’s Executive Order to relieve religious organizations of regulatory limits on their political activities came and went with little stir. It was widely seem to be lacking in content. David French, writing in The National Review, was harsher, pronouncing it "worse than useless."

Aimed at the Johnson Amendment, the Order directs the Secretary of the Treasury not to take "any adverse action" against a 501(c) organization speaking on political issues "from a religious perspective." But commentators correctly observed that an Executive Order cannot undo a statute, and that the Order confines its directives to actions by the Secretary "to the extent permitted by law" or "consistent with law." Translated into its simplest terms, the Order requires the Secretary to do what he can if the law allows it, and because the law in question is the Johnson Amendment, then the President has, in effect, demanded that the Secretary ease restrictions “to the extent permitted” by the Johnson Amendment. This is an unusual way of taking on the Amendment.

But if we look beyond the murky conception behind the Order and its somewhat tortuous wording, and consider what it might mean in practice, then it seems more consequential--at least in the next four years.

Is there an exception to free speech if its purpose is to exclude from the conversation certain views or groups? Ulrich Baer and Ted Gup have written dueling commentaries on this question. Baer argues that campuses are right to deny a forum to speakers whose racist or misogynist message defines other voices as unworthy of participation in the debate. Gup answers that once the principle of free speech is abridged for any reason, the inevitable result is more power for those who have already have it, more danger for those who do not. The protection Baer believes he is extending to the marginalized and underprivileged will turn out to be the road to their further victimization. Gupta sees Baer as mistaken that an exception carved out for the most just or compassionate of reasons can be kept under control and not abused for baser purposes.

There is a strong echo of this argument in the conflicts over campaign finance regulation. Those who would like to see the imposition of tighter limits on campaign spending are often making a Baer-like argument, with a twist. They do not peg their point to the content of the paid message: It could be on any subject. But they believe that the capacity to spend heavily to promote one’s views is an act of domination over those who don’t have the resources to answer. The wealthy are establishing an exclusive forum for speech funded at that level: Only a few can participate. This is an affront to democratic self-governance. It is, to borrow Baer’s words, threatening to “equal access to pubic speech,” and limits serve to “ensure the conditions” of such speech.

So, seen through this perspective much like Baer’s, limits are justified. And, just as Baer argues, staunch campaign finance advocates have long maintained that speakers restricted in the use of one outlet for their views can always can turn to others. Those whose speech confronts limits are still free to hold their beliefs and express them, just not at liberty to spread them on whatever terms and in whatever ways they choose.

The Supreme Court in Buckley v. Valeo famously rejected the notion that the speech of some may be limited in order to lift up the speech of others. Gup goes farther, insisting that, even if speech limits are intended to have this leveling effect, they usually don’t. The historical record to which Gup appeals tends to show that well-intended speech restrictions end up working against the interests of the marginalized and underprivileged. Once limits on access to a forum may be set, choices of who may spend, and how much, must be made. Gup writes that“ the advocacy of a dynamic line between protected and unprotected speech grants a license to those in power to smother dissent of all sorts….”

Few would have guessed that the First Amendment and its application to campaigns would somehow become an issue in the judicial review of President Trump’s beleaguered travel ban. And yet that is what happened, as Judge Kozinski has put this question into play in a dissent from the Ninth Circuit’s denial of en banc rehearing.

Judge Kozinski argues that the courts are opening up a potentially disastrous conflict with the First Amendment, by allowing for judicial inquiry into discriminatory purpose in an officeholder’s (and associates’) comments on the campaign trail. In the defense of the travel ban, the Administration has insisted on its facial neutrality, arguing that religious animus played no role. But a District Court in Hawaii found that repeated references to a Muslim ban during the campaign belied this suggestion of a secular purpose and doomed the order on an Establishment Clause analysis.

Rick Hasen has published a piece in this issue in Slate, arguing that this dissent is "bad on the merits," and would immunize obviously discriminatory purpose revealed in flat-out appeals to racial bias on the campaign trail.   He gives the example of a candidate for county prosecutor who declares that African-Americans should be kept off juries. Would we believe that, as a matter of formal doctrine, courts should ignore this? Kozinski imagines that they should, Hasen argues that they shouldn’t. Perhaps the answer is that they just wouldn’t.

Former FEC Commissioner Ann Ravel left a lengthy note as she left town to explain how bad things had gotten at the FEC. Her agency would not help drain the swamp; a bloc of Commissioners had scuttled the agency’s mission to enforce campaign finance disclosure and limits. Republicans promptly disagreed. So the Democrats and Republicans, at odds over enforcement policy, also disagree about the extent and seriousness of their disagreements.

With the agency down to 5, and most of the Commissioners' terms having expired, the question is what happens post-Ravel. There has been talk that the Trump Administration may make a full round of nominations and look to reshape the agency. Speculations have included the possibility that the Administration would end the long-standing deference to the other party in the nomination of half of the Commission and perhaps stack the deck, maybe by putting Independents in place of the Democrats. The law limits parties to half the seats; it does not guarantee a party any of the seats.

This heavy-handed maneuver seems unlikely, especially if Senator McConnell has anything to say about it, which he does. He has seemed committed to the practice of giving each party a check on the other. And it is hardly clear why, if the FEC poses little threat to Republicans and their constituencies on the issues they most care about, McConnell and his colleagues would want to open up a fight on this distant front when other battles raging around them have a greater call on their time and attention.

The more interesting question is what role the FEC--campaign finance--plays in the swamp-draining Trump platform. The Ravel farewell report declares the “unlikelihood” that the FEC will help with the draining activity. The Administration might be inclined to agree.

Professor Erwin Chemerinsky, Dean of the UC Irvine School of Law,  has maintained a lively defense of Justice Ginsburg's comments critical of Donald Trump, writing first in the New York Times and then elaborating on his position in a Los Angeles Times op-ed and a podcast discussion with one of his faculty members, Rick Hasen. It's an interesting and instructive case about how the intensity of feelings about particular issues and candidates tends to drive views of the First Amendment and in particular of the wisdom of campaign finance restrictions. For Chemerinsky, in defending Justice Ginsburg, insists that more political speech is better than less, and he is clearly moved in saying so by what he views as the exceptional importance of the question – – the potential election of Donald Trump – – that Justice Ginsburg was addressing.

This is another application of the test of conviction on political spending issues. To what extent, when the stakes are high, will citizens and activists tolerate being told that they can’t spend however much they want, or operate as freely as they choose, in advancing public policy positions or promoting candidates?