The Washington Post sensibly suggests that campaign finance reform policy must be recast and that this a job for Congress. The paper’s perspective on the current state of affairs is bleak. Post editors are unhappy with the permissive rulings of the Supreme Court and about the expanded realm of what is often, usually imprecisely, referred to as "dark money." But their emphasis is on "new ways" to improve the law and its enforcement. They suggest a focus on transparency and they call on Republicans who will soon control the Congress to reconsider their reversal on disclosure policies.

The Commission seems to be back at it again: quarreling publicly over disclosure rules and policy applied to the Internet advertising. The Republican Commissioners are calling for a public uprising of sorts against Commissioner Ravel’s call for reconsidering those rules and policy as part of an Advanced Notice of Proposed Rulemaking. They are urging public comments—they have in mind protests—attacking tighter reporting requirements. The Internet has been provided with lenient regulatory treatment, a choice for which the Commission has been generally applauded, and the Republican Commissioners want to keep things that way. Commissioner Ravel has both moved to reopen the question and indicated her view that more regulation may be in order—that significant sums spent for political advertising on the Internet should be viewed, for disclosure purposes, as no different than broadcast, cable or satellite communications.

Those who are rooting for a Commission that works better and more collaboratively across the partisan divide have reason for concern. Only a few weeks ago, the Commissioner managed to approve rulemakings to take account of recent Supreme Court decisions. The vote was not unanimous, but a 4-2 decision was progress, and at the Commission table, there was hope expressed that the agreement reached that day marked a fresh commitment among Commissioners to explore additional areas for agreement. It would be a shame if now, in the flap over Internet regulation, the Commission quickly regressed to caustic exchange and administrative stalemate.

A recent posting here reviewed possible paths for campaign finance regulation: a determined attack on loopholes, a biding for time until scandal possibly arrives and allows for legislative reform and expanded opportunity for regulation, or an openness to rethinking the issue?

Which of these is chosen will be influenced by which aspect of campaign finance is thought to be really pressing: how much money is spent (volume); how it is spent (influence), and how much is publicly known about it (transparency). Of course, in any critique of campaign finance, from the left or right, there is a little bit of everything thrown in, but one of these three considerations is usually emphasized over the others.

The Federal Election Commission approved rulemakings to conform its regulations to the Supreme Court’s decisions in Citizens United and McCutcheon.  This was not accomplished in a hurry, more than four years having passed since CU was decided. That it happened at all was generally received well, but with dissents, which are worth noting as the sources of agency functioning or dysfunction are analyzed.

The Campaign Legal Center and Democracy 21 have filed and published with a press release comments on a matter, scheduled tomorrow for FEC consideration, involving political party financing of national conventions.  These organizations have strong views on the alternatives before the Commission, as would be expected. But their choice of arguments says much about contemporary campaign finance debates.  (Note: I am counsel to one of the parties that filed the request for an Advisory Opinion).