Among the briefs being filed with the Supreme Court in the pending test of aggregate contribution limits, McCutcheon v. FEC, Docket No. 12-536 (U.S. 2013), Professor Lawrence Lessig’s will draw its fair share of attention. Brief for Professor Lawrence Lessig as Amicus Curiae Supporting Appellee, McCutcheon, Docket No. 12-536. In supporting these limits, he has introduced the Court to his “dependence corruption” theory of regulation. His choice to do so, in this case and in this way, may have been unwise, because whatever may be the theory’s utility or power in other contexts, it does not show especially well in this one.

The distinction between contributions and expenditures—the first enjoying less constitutional protection than the latter—keeps its hold on campaign finance jurisprudence, for better or worse. Citizens United shows that the difference carries considerable continuing clout on major issues. It does supply courts with a familiar analytical tool that they can use to dispose, often simplistically, of complicated issues. For example, the Colorado Republican cases raise important questions about party activity, especially the relationship between candidates and their parties. By turning to the storied contribution/expenditure analysis, the Courts could dodge the hard issues and decide the case. What this analysis yielded was odd, however. Suddenly parties could spend money freely if “independently” on behalf of their candidates, while their routine support of the same candidates, in day to day contact with them, were effectively “contributions” and limited in amount.

The McCutcheon case (McCutcheon v. Fed. Election Comm'n, No. 12-536 (S. Ct. docketed Nov. 1, 2012)), testing the aggregate biennial contribution limits, is another example of a perplexing nature of the contribution/expenditure distinction.