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 solid case can be made that judges should not be picked in elections because forcing them to become candidates, and to campaign, taxes confidence in the courts. But many judges are picked by election and then the question becomes how much to bemoan, as do Rick Hasen and Dahlia Lithwick, the predictably aggressive campaigning that these candidates, their allies and their opponents may adopt to win. Campaigns are campaigns, and it is not easy to sort out which particular set of rules or standards should apply only to judicial contests. Expectations may well be different for judges, encapsulated in a sense that they should be above the political fray, but once they become candidates and are thrust into the middle of political contention, are those expectations realistic?

Another question is how many of the same critics troubled by the raw political behavior on display in judicial campaigns can maintain that position while calling attention to the “political” bias in judging. A “cataract of studies” have shown that judges’ partisan backgrounds and ideologies, among other factors, influence how they will decide issues which are standard subjects of political differences—issues like reproductive rights, or the role of markets or government, or policing methods. Eric Posner, “Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform,” 75 U. Chi. L. Rev. 853 (2008). In other words: issues that voters might care most about. And yet Hasen and Lithwick quote, critically, this passage from a judicial candidate’s appeal for votes:

I am a Republican and you should vote for me. You’re going to hear from your elected officials, and I see a lot of them in the crowd. Let me tell you something: The Ohio Supreme Court is the backstop for all those other votes you are going to cast. Whatever the governor does, whatever your state representative, your state senator does, whatever they do, we are the ones that will decide whether it is constitutional; we decide whether it’s lawful. We decide what it means, and we decide how to implement it in a given case. So, forget all those other votes if you don’t keep the Ohio Supreme Court conservative.

Arguments about the prospects for campaign finance regulation now fall broadly into three categories: (1) close up loopholes; patch up the rulebook; (2) wait for scandal to break the logjam; and  (3) rethink the issues.  In recent weeks, we've had clear restatements of these alternatives.

This is the position I submitted to the New York Times’ “Room for Debate” Forum, on the question of the state of campaign finance regulation and possible directions for its future:

 

Forty years after the passage of the federal campaign finance laws, we have considerable experience with how they work, but the debate about them has become tired and repetitive. No one is happy with the situation as it now stands: not those who worry about corruption, not those troubled by the First Amendment cost of extensive regulation, and not those who yearn to bolster public confidence in the integrity of their government. There is everywhere evidence that reconsideration and rebuilding are in order.

The District Court that struck down Ohio's false campaign speech statute won few points for craftsmanship.  See Susan B. Anthony List v. Ohio Elections Comm'n, No. 1:10-CV-720, 2014 WL 4472634 (S.D. Ohio Sept. 11, 2014).  In straightforward terms, the court concluded that the government may not police the truth or falsity of political campaign speech. It is an opinion seemingly prepared for a general audience, its sentences plastered in bold type or energetically underlined.  At one point, the court consciously pitches its presentation to a wider lay readership, patiently explaining that "lawyers and courts call [laws like Ohio's] ‘overbroad’ and hence ‘unconstitutional.’”  Id at *1.  For all this earnestness, Rick Hasen critiqued the Ohio decision as lacking subtlety, and he was joined by Eugene Volokh in this skeptical view of the court’s work.