Tom Edsall’s piece on Congressional public financing proposals imparts a good sense of both their appeal and their vulnerabilities—the reasons why they have strong supporters and equally committed detractors.  Of all the points of disagreement, perhaps the simplest is the use of public money: either you believe that political reform, like any other, requires funding, or you will protest that the use of taxpayer dollars is nothing more than “welfare for politicians.”  Should the argument move from there, the competing claims about costs and benefits are notoriously hard to test, and what passes for an acceptable case depends on profound differences in political perspective.

These are the principal claims:

--less corruption: that dependence on private funding can lead to quid pro quo corruption;

--better public policy: that candidates who spent too much time fundraising develop a skewed view of public and policy    priorities--and there can be a related objective, highlighted by Edsall, that public financing schemes will result in better progressive policy, such as a higher minimum wage, stronger gun controls and the abolition of the death penalty;

--better electoral process: that ordinary citizens without wealth or high-level connections would have more of a chance to run      for office, offering more choice in candidate backgrounds, worldviews and platforms;

--better government: that candidates would spend less time on fundraising and more at their jobs;

--more political equality: that the political system would benefit overall from a more “level playing field.”

As soon as the New York Times reported again this week on the concentrated wealth flowing through Super PACs, leading election law experts on the listserv began disputing what to make of the story.  Was the spending independent “speech” that the Constitution protects? Or was it no different than massive contributions not to be confused with direct speech and as such properly regulated?

The exchange over doctrine replayed familiar themes.  A key one: could the donors who have given to a Super PACs be fairly said to be engaged in their “own” speech?

Fred Wertheimer remains indignant about Citizens United and he certainly comes by this view honestly.  He has been strongly for campaign finance regulation since the 1970s and had a hand in lobbying its successful passage in the first place.  It is not surprising that he is very distressed by the watered-down definition of corruption articulated by the Court first in Citizens United and then with more clarity and emphasis in the “we-mean-what-we-said” restatement in McCutcheon.

Wertheimer says in this new piece what he has said before about “legalized bribery” being the product of the Court’s fecklessness and naiveté.  This charge is familiar, and some object that it is tired and unproductive, but Wertheimer adds to this complaint another: that the decision unleashed “political chaos”.

The Fourth Circuit Court of Appeals had its chance to clarify the distinction between criminal and lawful politics, and it seems to have missed it.  Among other issues, it was called on to consider the question of what constitutes an "official act.” In extensive briefing, the Court was warned that whatever one thinks of former Governor McDonnell's behavior, the jury was not properly instructed about where, in the world of politics, mutual backscratching ends, and bribery or honest services fraud begins.  The cases cited included Citizens United (along with McCutcheon v. Federal Election Commission) and their declaration that ingratiation and access are elements of ordinary political interaction, not corruption.

But the Court in McDonnell rejected the relevance of these cases.  It insisted that an official act included “customary” or “settled” practices of the widest variety that cannot be known except upon the consideration of the facts in particular cases. The Court conceded that it might not be enough for such an act to simply relate to official duties. But it did not explain the nature of the required connection. So long as the officeholder might act in a fashion that could connect in any way and at any point to official duties--to any “question, matter, cause, suit, proceeding or controversy” to come before the government--it would be sufficient to qualify as an official act on which a criminal prosecution would be based.  The connection would not have to be direct: the alleged official action could be one of a series of steps over time toward the accomplishment of the desired end.

It is understandable that the D.C. Circuit's Wagner decision upholding the federal contractor ban would attract a good bit of attention.  The federal courts are suspected of harboring animus toward the campaign finance laws and here is a major decision going the other way and on fairly broad grounds.  So it has been described as having the potential to be highly significant.

The decision was notable for the clarity and thoroughness of its presentation.  The Court also deftly reinforces the available authority by use of case law stressing the particular dangers presented by political pressure on, or from, government employees.  A strength, perhaps also a surprise, was the unanimity of the opinion.

It was also a relief to the decision’s admirers that the Court left open the question of whether federal contractors barred from contributing could make independent expenditures, or contribute to a Super PAC.  So this fight is for another day. Hopes have been raised within the reform community that the Court's emphasis on the special threats posed by federal contractors’ direct giving might justify limits on their independent spending.

This is one impression the case leaves – that without dissent, and for this class of contributors, the Court was prepared to affirm unambiguously affirm the government’s regulatory authority.  But then, after a step back, Wagner also illustrates how much excitement in this day and age of declining expectations about the campaign finance reform laws can develop around a case with limited practical effect that exposes problematic features of the current regulatory regime and its defense.