The Supreme Court has turned Jim Bopp away, denying his wish to have the parties relieved of core McCain-Feingold restrictions. There could be any number of explanations. The Court may have no appetite at the moment for a major campaign finance case. Or, having chipped away at McCain-Feingold, the Justices may not be inclined to demolish its centerpiece. After all, if the parties are hurting, then Congress, its membership filled with party members and candidates, is perfectly free to take stock of their needs and do away with a legal impediment if necessary.

There is one other possibility. If the Justices are concerned with the condition of parties, and they're relying on general commentary outside the court for their assessment, they would not have too much reason to worry. They would read that parties have found a way to adapt to McCain-Feingold. Various experts are telling them about energetic online fundraising and about more dramatic innovations, like the establishment of super PACs functioning as "shadow parties." On this account, the parties are not in crisis. They are thriving. The furniture is being rearranged and renovations are ever in progress, but the basic party structure remains healthy.

This is a paradox of the reform battles of recent years: how the erosion in the Buckley regulatory framework might persuade the Court to leave alone whatever is still standing. What really is the scale of the problem, they might ask? The prime actors of campaign finance have been busily working around the law. The reform community, partly stymied by the courts, has not been able to do much about it. The FEC has gone into hibernation, and it emerges only occasionally to exhibit paralysis. As a result, the prevailing view is that the parties may be restive under McCain-Feingold's strictures, and they are certainly disadvantaged in their competition with the "outside groups," but they are not on the verge of extinction. In fact, so it is believed, they're doing well enough, or at least better than expected.

The Supreme Court has refused to review a Ninth Circuit ruling denying political parties the right to exclude nonmembers from participation in their primaries. Hawaii law requires an open primary, and under the Ninth Circuit decision, parties would bear the burden of showing that this requirement severely burdens their rights of association. In other words when parties must open their candidate selection processes to non-members, the infringement of that associational right is not, apparently, self-evident.

The Ninth Circuit decided this incorrectly. It misconstrues the controlling Supreme Court authority, and it disregards its own entirely inconsistent decision in Washington State Democratic Party v. Reed. It is revealing that the Court's panel’s denial of that inconsistency is tucked into a disingenuous footnote. Democratic Party of Hawaii v. Nago, 833 F.3d 1119, 1124 n.4 (2016)

So it goes nowadays for the parties. It is a sign of the times. A political party has to prove that it is harmed if forced to give nonmembers a full share of the authority to determine its nominees.

To defend the post-McCain-Feingold version of campaign finance reform, proponents have taken special pains to say that it did not really hurt the political parties. They bounced back, engineered new ways to raise money, became perhaps even stronger. The soft-money the 2002 law took away from them has been replaced by other sources of funding. Online contributions have helped, and so has special new party fundraising authority enacted by Congress in the “Cromnibus.”

But even more important, according to this line of argument, is understanding what a political party is. It is not correct, on this view, to point to the formal institutional party organizations, but parties should be viewed instead as “networks” of allied entities. That would include, for example, interest groups sympathetic to Democrats or Republicans, Super PACs aligned with either major party (sometimes referred to as “shadow parties”), and even Fox or MSNBC.

Now the Campaign Finance Institute has put out new research and commentary in support of this picture of the parties. Having assembled data to show that Super PACs aligned with party interests spent large sums of money in 2016, the CFI declares that there is no cause to “bemoan” the weakness of parties. Parties have “rebounded”: they “have found a way to fight back” after the reforms and Citizens United.

And how did this happen? On this point, CFI words its position delicately. The parties’ recovery can be attributed in part to the “law’s permeability.” The unrestricted funding and spending of Super PACs "looks much like the soft-money the formal parties accepted before the Bipartisan Campaign Reform Act of 2002 (BCRA).”   There are advantages and disadvantages to this development. On the plus side, the "shadow party" PACs don’t have to pretend to be “issue advertising” and can spend on direct advocacy of their candidates. But, more negatively, they have to set up as “independent” of candidates or the institutional parties and cannot coordinate their spending with them.

The de Blasio campaign finance investigation ended with explanations from federal and state authorities of their decision not to pursue charges. The Manhattan District Attorney Cyrus Vance, Jr. chose to give the lengthier account: ten pages of conclusions of law and facts in a letter to the State Board of Elections, which had referred the matter for investigation. Yet again in recent legal history, the prosecutor declines to prosecute but does not stop there, adding his disapproval of the conduct he would not indict.   He also suggests how the law could be improved so that it more directly, clearly prohibited the actions he does not approve of. The letter is something less than a model for productive prosecutorial encounters with the political process.

The District Attorney is passing on a case that involves a coordinated campaign of candidates, party leaders and party organizations to deliver support to targeted State Senate races. The question was whether party county committees became conduits for contributions to candidates that were larger in amount than what the candidates could accept directly. Donors were solicited for contributions to the parties, and the parties promptly provided the money to the campaigns for immediate use in paying their consultants. The coordinated campaign drew up plans for this arrangement with the county committees and submitted them to legal counsel for review. Counsel then approved of what the prosecutors refer to as an “end run” around the candidate contribution limits. The lawyer put his advice in writing and stayed in close contact with the client, providing “consistent advice” from planning to execution. The DA found no evidence of “bad faith” in the way the advice was sought or delivered.

With two elections within sixteen years won by the candidate who lost the popular vote, it is a natural turn that the Electoral College moves higher on the reform agenda. There remain other items for consideration: the state of the political parties, campaign finance, and voting rights. The question is: in what ways will the substance of reform, and its timing or tactics, be affected by the outcome of this election?

1. Attention to the Electoral College is now heightened at a time of mounting impatience with the other ways in which the electoral process deviates from the expectation that the most votes should decide. James Ceaser has correctly said that we've arrived at the point in our political culture that it is, if not unthinkable, difficult in the extreme to stand against the principle that the person with the most votes wins. So Republican leadership balked at any program to stop Trump at least in part because they struggled to explain how the nomination could somehow be denied to the candidate in a field of 17 who won by far the most contests and the most votes. The Democrats have run into similar problems with the role of super-delegates.

The case against the Electoral College is strengthened considerably by this strong trend in popular expectation. Whether we will see sustained momentum for reform is a different question.

2. Meanwhile, what about the parties? Ezra Klein has come to the view that parties may be weak but partisanship runs high, and that this complicated combination explains a good bit of what some see to have gone wrong with the nominating processes. Parties do not mediate voter choice: it is not accepted that they should step in against the candidates the voters favor and compel an alternative choice presented as superior in experience, governing credentials, or electability. So the voters decide, and once they have decided, the parties and their partisan fall into line. As Klein explains it, this is the worst of all worlds: weak parties, high partisanship.

The absence of strong parties on the traditional model has been keenly felt in this way, and perhaps in other less visible ones. For example, candidates now rely upon polling data to shape strategy and to adjust as necessary to changed political conditions. All of this is done at headquarters, shaped by sophisticated analytics. And the analytics are highly advanced. A modern campaign cannot operate without them. But genuinely strong parties are built on something more. They would have good intelligence "on the ground" delivered by seasoned party officials and operatives. The state and local party would speak authoritatively on local conditions. It pick up quickly on changes in those conditions not easily accessible through polling.