In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse.  He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful. Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902. But he also assigns the Court heavy responsibility for the state of reform.  Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.

To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart.  But an account focused on the Court skips to the middle of the story; it leaves too much out.

When Governor Scott Walker ended his Presidential candidacy, which happened after Rick Perry suspended his, commentators marveled that they could be done for and have well funded Super PAC still idling nearby.  It has been assumed that a conclusion was ready to be drawn—the more conclusive, the better.  The proposition that Super PACs rule the world has met with the objection that, no, they really don’t, not as we once thought.

Case in point: a piece in Salon, whose author, Sean Illing, wishes to show that, as the title states, Plutocrats still Reign, and that Walker’s withdrawal is no “defeat” for their Super PACs.  Very few commentators actually argued that Walker’s downfall signaled the end of plutocratic control.  If not that, then, what does the Walker’s withdrawal have to teach about the power and limits of Super PACs?

In the wake of the Wisconsin case, and in the arguments more generally about “’coordination,” it has been suggested that not too much should be made of the dangers of criminal investigation in campaign finance cases.  Hard-charging investigative techniques employed in the service of creative theories of liability are staples of white-collar criminal enforcement.  Why, critics such as Rick Hasen ask, should campaign finance law enforcement be different?

The question of whether criminal campaign finance investigations are just like any other is worth careful consideration, detached from a lively, high-stakes conflict like Wisconsin’s.  The federal experience is instructive.

The Wisconsin Supreme Court was badly divided on the “coordination” question that it resolved in favor ending an ongoing criminal investigation.  The majority and dissents expressed their disagreement in harsh terms, and there was a similar outbreak of ill-will or impatience among experts and seasoned observers trading views on the election law list serv.  Dividing the camps for the sake of convenience into progressives and conservatives: the former were appalled by the case and the latter overjoyed, and neither could believe how the other was reacting.  The case was either a nightmare for desperately needed reform, or a vindication of the rule of law in a struggle with political persecution and police state tactics.

But are the issues being fairly brought out amid all this vitriol, and is it necessarily true that the opinions on the coordination issues in Wisconsin must always and inevitably fall out along ideological and party lines?

Professor Bradley Smith has written an exceptionally succinct and well-argued case for super PACs.  This author of Unfree Speech: The Folly of Campaign Finance Reform does not neglect to cite “personal freedom” in defense of these organizations, but he challenges their critics on one other level: their effects on the electoral process.  He argues that super PAC spending improves turnout and competition, lessens the fundraising burden on candidates, and addresses other issues in the political system, such as the early primary states’ grip on the nominating process.   Whatever else one may think about all this money, he writes, we should see Super PACs as beneficial – – doing good things for the political process.

There are points of major interest in Smith’s presentation, which are found in both what he says and what he does not.