The Federal Election Commission is about to hear from a varied community of observers and participants who have views of what it should do—or not—after McCutcheon.   All the witnesses are aware that there are major, lines-drawn-in-the-sand disagreements within the agency over policy and authority. They know, from the start, that proposals to toughen rules on, say, earmarking, have a slim chance of success. But still the ones who favor new, more muscular regulation make their case. But they don’t make it in all the same ways, and in the differences lies the chance to make the best use of the advocacy they know will only get them so far. 

Writing off the Koch announcement of massive 2016 spending, Ron Fournier urges that we be realistic about campaign finance reform in the 21st century: no limits, just instant disclosure. He seems to be salvaging what he can from the current mishmash of changes in political practices, outdated campaign finance requirements and increasingly unsparing limits on Congress's constitutional authority. Without a sharp focus on disclosure, he argues, the 2016 election will go largely dark.

Fournier’s analysis has two considerable virtues: a call for the debate to adjust to constitutional and political realities and an emphasis on single-minded priority in the reform of the law. The debate is stuck, and one reason is that a fair number of interested observers are dedicated to fighting the same arguments heard since the 1970s. A whole host of objectives are being kept artificially alive for discussion. Political spending is to be reduced and the prohibition on corporate spending restored. Independent spending is to be curtailed because some of it is suspect, gutted by disreputable, if not invariably illegal, forms of coordination. Political discourse is being poisoned by attack advertising.

And, of course, there is too much "dark money" and disclosure law should be strengthened against it. Here is where Fournier recommends that reform energy be expended.

Rick Hasen has written a crisp reply to the posting here and defends his position that it is false—simply false—to say that Citizens United allows for unlimited foreign corporate spending in federal elections.   It is illegal, he argues, for foreign nationals to influence elections, and CU did not change that. In fact, in a later decision, the Court expressly upheld the ban on foreign national contributions and expenditures.

Just as Rick insists that the position taken here won’t “fly,” it is hard to see how his response really gets very far down the runway—particularly considering what he has astutely said before on much the same question of how to judge the Court’s performance in campaign finance cases.

Some weeks ago, a number of individuals with different professional backgrounds and perspectives on campaign finance came together to urge the Federal Election Commission to take certain initiatives to improve the enforcement of the law.  (I was one of them.)  In a period of difficult, highly contested constitutional and legal questions, the FEC is in a difficult position, often charged with the perceived “sins” of others and itself divided  over regulatory direction.

But in this turbulent period, a key step for the agency is to define the available paths toward clear law, accessible and regularly updated guidance to those subject to the Act, and strengthened compliance and bipartisan enforcement. The signatories to the letter urged that the Commission consider revisions to “advance core regulatory purposes and policies in the public interest, such as the more effective implementation of well-established disclosure requirements.”

Today, in a further step, the same group has filed a Petition for Rulemaking, calling on the Commission to implement the statutory mandate to expand the Administrative Fines Program, address ambiguities, omissions and uncertainties in its guidance and reporting forms, and generally improve the enforcement of the disclosure provisions.  Once again, the signatories are unified in their view that this is a critically important function for the FEC to play, and that respect for the law and the prospects for successful compliance depend on sound administration of core statutory requirements.

The five year anniversary of Citizens United finds critics largely where they stood when the opinion as first issued. Enthusiasts remain cheered and critics have lost none of their gloom. One difference is that time has passed and the inquiry has shifted from predictions about what CU will have wrought to claims about what the data shows about its effects. There is no agreement here, either, and any one analyst’s interpretation of data typically corresponds closely with her heartfelt views of the decision’s rightness or wrongness. Like most campaign finance debates, this one does not change minds.   We are in for endless and inconclusive argument about CU’s contribution to oligarchic rule, or its responsibility for “dark money, or for trends identified in the volume of money spent in politics.

These “big picture” disputes may block a clear view of other, more subtle but still significant changes in campaign finance doctrine and practice brought about or encouraged by CU. These are changes that can’t be precisely pinned to CU alone: the whole course of campaign finance doctrinal development was driven, principally by Buckley, in particular directions, and CU, after all, is an “independent expenditure” case the logic of which rests in the main on the 1976 case. But CU as a case about independent corporate spending, and about campaign finance regulation more generally, occupies a special, prominent place in this history, and it is in this context that it might be best understood.