Fearful of the cost to the Senate’s institutional standing or just to “sane” strategic decision-making, commentators concerned about partisan filibusters and the invocation of the nuclear option are convinced that there is a better way for Senate Democrats. Let the Republicans have their vote, the argument goes, and the filibuster may survive for use in a later fight over a more controversial or unqualified nominee. Filibuster now but fail, when failure is assured, and when the nuclear option is invoked and the filibuster is gone, all defenses against future, extreme nominees will have collapsed. When it is over, the Senate will be the worse for it, a raw site of political conflict and power politics--more like the House, rather than the honorably deliberative body it is meant to be.

These objectives--the protection of the “unique” character of the Senate, and the construction of a smart Supreme Court nomination strategy--may in theory be consistent some of the time. But that is not necessarily case, and it is not clear why it is thought to be true here.

The FEC will be defending the “structure” of the contribution limits this week in the US Court of Appeals for the District of Columbia. The case, Holmes v. Federal Election Commission, tests the constitutionality of the "per election" limits as applied to a donor’s choice to participate only in the one--the general--election. If a donor skips a primary, and wishes only to contribute in the general, she now cannot give the full amount allowed for the election cycle cycle, $5400, but only half of that: $2700, the "per election" limit for the general.  The Holmes plaintiffs’ point is that this bifurcation of the limits serves no legitimate anti-corruption purpose. Donors do not potentially corrupt candidates in the primary, or the general, or a run-off: the corruption, if it occurs, is the result of the amounts given through the date that the candidate is elected to office, after which the new officeholder is in a position to return the favor. And the limit Congress settled on to serve this anticorruption interest is the combined allowance for the cycle, $5400, a point that the Supreme Court stressed in McCutcheon.

The problem presented by the bifurcation of the limits is worsened by the messiness of its application. Incumbents and other largely unopposed candidates do well under this system, collecting money for primaries they don’t have to compete in and transferring the money to their general election accounts. Both the candidates in this position and their donors are aware that the money being given to the “primary” is really for the “general.” And a candidate can collect a contribution designated for the general election before the primary election is decided, provided that the candidate escrows the money and does not spend it until after the date of the primary. In this case, the candidate has, in fact, accepted a full cycle contribution of $5400 prior to the general election. It may be subject to a restriction on when it is spent, but the donor looking to make an impression, with a full cycle’s worth of contributions before the primary, will have done so.  Or, knowing that a primary candidate is closing in on victory, a donor can give the full primary election amount the day before the primary, and the full general election amount the day after, with confidence that he or she has given $5400 for the general election.

And add to all this that by FEC rule, an opposed candidate who, by operation of state law is not even on the ballot may still raise a "primary" or "general" election contribution in the full amount. The regulation reads:

A primary or general election which is not held because a candidate is unopposed or received a majority of votes in a previous election is a separate election for the purposes of the limitations on contributions of this section. The date on which the election would have been held shall be considered to be the date of the election.

11 C.F.R. 110.1(j)(3).

Here is a striking sentence in the Washington Post editorial calling for Senate Democrats to refrain from filibustering the Gorsuch nomination:

We are likely to disagree with Mr. Gorsuch on a variety of major legal questions. This is different from saying he is unfit to serve. He deserves the deference due any presidential nominee.

The thought here is that “elections have consequences,” and presidents winning an election have a claim on some measure of deference to their nominees--all of them, including presidential nominees.

The problem is this: Judge Gorsuch is not just “any presidential nominee.” He is a nominee for the United State Supreme Court who could serve for four decades, or more, in this position of extraordinary power. It is possible to have the utmost regard for Judge Gorsuch or any Court nominee and question why, in the name of "deference," members of one party would readily yield on any such appointment to the president affiliated with the other.

Few would have guessed that the First Amendment and its application to campaigns would somehow become an issue in the judicial review of President Trump’s beleaguered travel ban. And yet that is what happened, as Judge Kozinski has put this question into play in a dissent from the Ninth Circuit’s denial of en banc rehearing.

Judge Kozinski argues that the courts are opening up a potentially disastrous conflict with the First Amendment, by allowing for judicial inquiry into discriminatory purpose in an officeholder’s (and associates’) comments on the campaign trail. In the defense of the travel ban, the Administration has insisted on its facial neutrality, arguing that religious animus played no role. But a District Court in Hawaii found that repeated references to a Muslim ban during the campaign belied this suggestion of a secular purpose and doomed the order on an Establishment Clause analysis.

Rick Hasen has published a piece in this issue in Slate, arguing that this dissent is "bad on the merits," and would immunize obviously discriminatory purpose revealed in flat-out appeals to racial bias on the campaign trail.   He gives the example of a candidate for county prosecutor who declares that African-Americans should be kept off juries. Would we believe that, as a matter of formal doctrine, courts should ignore this? Kozinski imagines that they should, Hasen argues that they shouldn’t. Perhaps the answer is that they just wouldn’t.

Supreme Court nominee Neil Gorsuch has scattered few clues about his campaign finance jurisprudence. Commentators have had to make do with his concurrence in Riddle v. Hickenlooper, 742 F. 3d 922 (2014), a case involving a concededly defective Colorado law that discriminated against minor or independent candidates in the structure of contribution limits. Gorsuch’s concurrence could be read to question the more permissive standard of review that the Supreme Court in Buckley established for the defense of contribution limits. The Court allowed for scrutiny of contribution restrictions a step or more down from the strictest review: not attention to whether the government had a “compelling” interest and had “narrowly tailored” the means to achieve it, but a question of the state’s “sufficiently important interest” and the use of means that are “closely drawn.”

Gorsuch wrote in Hickenlooper that the two standards were “pretty close but not quite the same thing.” Id. at 931. To some observers, they seem not that close at all. They fear that any shift to a more rigorous standard would be the next and perhaps decisive blow to meaningful campaign finance regulation. The stakes, they believe, are high. But how high? And are there other questions to be raised about the political assumptions, perhaps also effects, of the leeway provided for the imposition of tight limits on contributions?