The FEC tries to make up its mind, case by case, whether an organization distributing political material is a “press entity” engaged in a “legitimate” press function.  It concluded some time ago that Citizens United was a press organization when producing and distributing documentaries.  Advisory Opinion 2010-08 (June 11, 2010). This year it could not decide whether to bestow similar grace on another documentary producer, one who evidently does not care for President Obama.

Commissioner Weintraub tersely noted that the producer sent free samples of his product to millions of households in 2012 “swing states.”  This was enough for her to conclude that the producer may have been a "press entity" but it was not acting like one: it was not engaged in a “legitimate” press function.

The General Counsel reached a different conclusion and recommended that the FEC let things go—that it exercise its broad discretion in the producer’s favor.  It seemed to agency counsel that this particular press entity was acting legitimately enough. The General Counsel credited the claim that the free distribution was a commercial promotion and not only, if predominantly, in “swing states.”  The producer appeared to have demonstrated sufficient commercial or business purpose by arranging for sales through websites and via Amazon, and by contracting for streaming services through both Amazon and Netflix.

Commissioner Goodman, joining his Republicans in voting with the General Counsel, added a charge that the Democratic objections were a threat to press freedom.

How did Justice Scalia come to write a dissent as he did in McIntrye, insisting on the role of disclosure and relying for the power of his point on the need to follow the judgment of legislators in protecting or enhancing the electoral process?  The question this raises is not whether Scalia was or was not a conservative on this issue, but what kind of conservative he was. As it happens, the explanation also sheds light on the recent history of campaign finance reform and the Court’s response.  The emphasis here is on “response”, for the Court—and Justice Scalia—responded to developments in the law, and in political practice, from Buckley onward, and his position may be fully understandable only within this context.

One day there may be personal papers and other accounts not available today that will fill out our understanding of Justice’s Scalia’s thinking, but in the meantime, the best sources are what he wrote and said, and most of all, what he chose to write, as Justice, in opinions, concurrences and dissents.  It has to be granted at the outset that he addressed the issue outside these opinions, and perhaps inevitably on these occasions, in interview or casual comment, he himself oversimplified.  He would say “the more speech, the better,” provided that the audience could know who was paying for it.  This would give observers reason to imagine that he was a “free speech” absolutist.

As Robert Mutch reminds us in his comprehensive history of campaign finance reform, there were such absolutists on the attack against the Watergate reforms from the very beginning. Buying the Vote: A History of Campaign Finance Reform 140-143 (2014). They gave disclosure some room, but they were otherwise firmly against the other elements of the law in place today, which means contribution as well as expenditure limits.  Mutch argues that they needed a fresh hand to play in this game, and it was constructed out of what he takes to be novel claims of “free speech”—to restrict the use of money in politics was tantamount to restricting speech.  They disdained any rationale for these restrictions, the corruption rationale as well as (and perhaps especially) another grounded in considerations of “equality.” They brought the case known as Buckley on this ground, and, the Court having split the difference—money was speech in some but not in all ways-- they were not happy with the outcome.

Early in his tenure on the Court, however, Justice Scalia declared that “Buckley should not be overruled, because it was entirely correct.” Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 683 (1990) (Scalia, J., dissenting).  He was primarily concerned to defend the “express advocacy” line that Buckley had drawn around independent expenditures, but he was satisfied that the Court had properly upheld contribution limits as measures targeted at the “plain” risk of corruption:

Certain uses of "massive wealth" in the electoral process – – whether or not the wealth is the result of "special advantages" conferred by the State – – pose a substantial risk of corruption which constitutes a compelling need for the regulation of speech. Such a risk plainly exists when the wealth is given directly to the political candidate, to be used under his direction and control.

Id. at 682.  The Justice also did not then question, nor at any time later, the value of disclosure, which the Buckley also sustained on the strength of the anti-corruption interest.  So overall, Scalia thought Buckley had gotten it right, establishing the express advocacy line which it had “set in concrete on a calm day”, Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449, 499 (2007)(Scalia, J., concurring), while allowing for limits-- but only to address the risks of corruption, not on the basis of an “equality” rationale.

When Margaret McIntyre's case came before the Supreme Court in 1995, she had passed away.  Her executor was determined to prevail over the state of Ohio, which had concluded that she was properly held liable, on complaint by school officials, for distributing anonymous handbills opposing a proposed school tax levy.  The Court heard the case and held for the late Mrs. McIntyre.  In a somewhat unfocused opinion, Justice Stevens found that Ohio's campaign finance disclosure requirements could not be applied to a case like hers: he noted in part that Mrs. McIntyre spent only a modest sum, out of her own pocket, and only for personal, independent speech. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).  The opinion in part relies on the long and distinguished history of anonymous pamphleteering in the United States.

So now comes along Mrs. Tammy Holland, in a remarkably similar case. In this instance, once again in conflict with a school board, Ms. Holland placed ads in a local paper calling for close examination of the qualifications of candidates standing for election or reelection to the school board.  Her interest stems from her strong opposition to Common Core, which she has expressed in part by withdrawing her son from the school system.  A school official, on his own behalf and that of the entire board, filed the complaint, alleging that her advertisements triggered campaign finance regulatory requirements she did not satisfy. The complaint alleged that she had to register as a political committee and that her ads should have carried disclaimers.

Under Colorado's campaign finance laws, the case was referred to an administrative law judge and in defending herself, Mrs. Holland wound up spending $3500 on lawyers. She was successful and sought to recover those fees.  Another school official, also a candidate for reelection, threatened her with another complaint if she did not give up her claim for the money.  She didn't and was sued again, and the regulatory wheels turned once more.

As soon as the New York Times reported again this week on the concentrated wealth flowing through Super PACs, leading election law experts on the listserv began disputing what to make of the story.  Was the spending independent “speech” that the Constitution protects? Or was it no different than massive contributions not to be confused with direct speech and as such properly regulated?

The exchange over doctrine replayed familiar themes.  A key one: could the donors who have given to a Super PACs be fairly said to be engaged in their “own” speech?

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.