A strength of any reform discussion is careful attention to the role of campaign finance in lobbying activity. Critics of standard reform proposals complain that “insiders” are attempting to regulate the political activity of “outsiders”, but this objection has less force when campaign finance restrictions fall more heavily on the insiders – – on legislators and the lobbyists who may build relationships with them by raising and giving campaign money.

So Senator Michael Bennet, supported by the reform community, has developed a bill entitled the Lobbying and Campaign Finance Reform Act of 2015, which pursues reform objectives from the "inside." It would expand the number of those who are required to register as lobbyists, and it would limit the influence they amass through the fundraising known as bundling. And the Members of Congress that they lobby could not solicit them for contributions when Congress is in legislative session. The focus here is on campaign finance as a lubricant of successful lobbying, and on any temptation in official circles to link the performance of the public’s business to campaign support.

The next question is-- how would this reform, if enacted, work, and how effective would it be in meeting the goals set for it?

The Supreme Court has effectively decided to consider the question of who qualifies as the constituent of a legislator, and, as Joey Fishkin has pointed out, it got into this question from a different perspective in its most recent campaign finance decision, McCutcheon.  There the Court included in that category donors, including out-of-jurisdiction donors.  Is it possible that this Court would conclude that a donor is a constituent but that for purposes of the constitutional question presented in Evenwel , a resident under the age of 18 or a noncitizen is not?    Fishkin writes: “[W]ho counts as a constituent?  That’s the question, long latent, that the Court has decided to decide in Evenwel.”

This question can be attacked by the Court’s application of High Theory, or the resolution can be left with…. the politicians, entrusted with the judgment of how to define their representative relationships.  This is one way to reconcile the McCutcheon decision with the right decision in Evenwell: the Court should not jump in and shape that choice by insisting on the one definition of constituency—eligible voters.  To the extent that the Constitution does not dictate the answer, the Justices would be unwise to do so.

A dispute over whether the FEC is tilting its investigations against conservatives or Republicans is mostly a waste of energy.  Commissioner Goodman got this started at a Commission hearing and has been rebuked by Commissioner Ravel.  The Republicans profess to be outraged; the Democrats announce that this outrage has rendered them speechless.  Once again there is here, in the midst of this clamor, an important question-- the uses and misuses of the agency's enforcement process—that is being misdirected into another round of finger-pointing about bad faith and improper motive.

Public Citizen has concluded that the Federal Election Commission is failing.  Its shortcomings are "dramatic and uncharacteristic", because they range across the entire field of their responsibilities in conducting audits; enforcing the law through investigations, settlements and lawsuits; and issuing regulations and advisory opinions.  The Public Citizen analysis is statistical and focuses on vote deadlocks.   The FEC is indeed disagreeing a great deal—about that, there is no doubt.  But is the agency failing or is the old regulatory model collapsing under the pressure of changing law and political practice?

Public Citizen cannot answer this question because it is looking at agency performance in the aggregate.  It is unable, for example, to explain what might be happening in particular cases, or why deadlocks are occurring across various agency functions.  There are certainly instances where the vote for enforcement is as suspect as a vote against it.  The result is still deadlock but the reasons for it are not quite what Public Citizen implies.  Nonetheless, it being assumed that matters could not have gotten this bad without dereliction of duty somewhere, the FEC takes the blame.  It is expected to take up the big issues, such as those involving "coordination" or "dark money", which are precisely the issues over which disagreement is certain to arise.  And so around and around it goes.

One alternative available to the FEC in this period of uncertainty is to commit itself to less controversial but highly productive functions.  Bipartisan suggestions have been made, for example, that it could do better in discharging its disclosure function, and in reforming, as Congress has directed, the operation of its Administrative Fines program. There is value in starting with these basic responsibilities.  To the Commission’s credit, it has initiated a rulemaking to move in this direction.

And on this question of disclosure, there is much to be done, more than suspected by many who hold the view that, for all the discord and disappointment, campaign finance law administration has performed well on public reporting.  Now we have some fresh scholarship by Jennifer Heerwig and Katherine Shaw that subjects this assumption to careful, critical examination.  Jennifer A. Heerwig and Katherine Shaw, Through a Glass Darkly: The Rhetoric and Reality of Campaign Finance Disclosure, Geo. L. J. 1443 (2014).

The Supreme Court has been asked to consider whether the Attorney General of California may require tax-exempt organizations to produce donor information normally provided only to the Internal Revenue Service. The petitioner, the Center for Competitive Politics, argues that the Ninth Circuit has improperly upheld this requirement by giving the State ready access to this information on a slim-to-none showing of need.  The Attorney General has asserted that the information will be useful to the State's attempts to enforce the law, such as the protections against self-dealing or improper loans.  Others apparently suspect that there is more going on, namely, a move to discourage the sort of politically shaped tax-exempt activities associated with the Koch brothers.

This is an important case, now before Justice Kennedy.  It is the latest turn in a troubled reform debate.   First there is the fight over disclosure, which is relatively new. For years this was supposed to be the common ground that camps badly divided over other forms of regulation could occupy: but no more.  And just as reform communities have suspected political actors of cheating on the law, engaging in "circumvention,” now skeptics of regulation fear that, in the absence of consensus on legislative reform, state actors are resorting to extralegal administrative remedies.

Over the weekend, on the election law listserv, a snippy exchange quickly developed about the California case and what it represented.  In some part, the views fired back and forth reflected the widespread assumption that positions on reform can be explained primarily by reference to their proponents’ political objectives.  It is believed that reformers want regulation to advance progressive policies, or that their antagonists oppose regulation because they wish to surrender political power to the marketplace.