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.

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.

What an odd opinion from the Court of Appeals in Stop This Insanity. The Court decides that the regulatory burden imposed on a political activity satisfies constitutional requirements if there is an alternative, simpler route to roughly the same result. This is questionable enough, but the Court takes additional comfort in the fact that, in its view, the activity—corporate PAC activity—is “functionally obsolete”, a “relic”, an “artifact”. Stop This Insanity, Inc. v. FEC, No. 13-5008, 2014 WL 3824225, at *1-3 (D.C. Cir Aug. 5, 2014).  So, somehow, the constitutional standing of a legal restriction is strengthened by its pointlessness.

The New York Times this morning reports on political spending in this election cycle, but it also wishes to explain to readers the meaning of all these dollars. So the article this morning about the money going into Senate and House races links the cash to “consequences [that] are already becoming apparent”: candidate loss of control over their messaging and a sharply negative tone. The grounds for these conclusions are not drawn from the the numbers.  They are added on.

A sense is building in media quarters that the Wisconsin “issue advocacy” investigation, still in limbo in the courts, might be a pivotal moment in the campaign finance reform debate. It is a spicy story: a criminal investigation with allegations about conspiracies and mention of emails to Karl Rove. And it could turn out that state law was violated. At this point there is no way of knowing. Clearer is the central issue arising out of the case: whether the First Amendment protects “a candidate’s promotion and support of issues advanced by an issue advocacy group” where “the speech may benefit his or her campaign because the position taken on the issues coincides with his or her own.”  O’Keefe v. Schmitz, No. 14–C–139, 2014  WL 1795139 (E.D. Wis. 2014).