The Supreme Court has turned Jim Bopp away, denying his wish to have the parties relieved of core McCain-Feingold restrictions. There could be any number of explanations. The Court may have no appetite at the moment for a major campaign finance case. Or, having chipped away at McCain-Feingold, the Justices may not be inclined to demolish its centerpiece. After all, if the parties are hurting, then Congress, its membership filled with party members and candidates, is perfectly free to take stock of their needs and do away with a legal impediment if necessary.

There is one other possibility. If the Justices are concerned with the condition of parties, and they're relying on general commentary outside the court for their assessment, they would not have too much reason to worry. They would read that parties have found a way to adapt to McCain-Feingold. Various experts are telling them about energetic online fundraising and about more dramatic innovations, like the establishment of super PACs functioning as "shadow parties." On this account, the parties are not in crisis. They are thriving. The furniture is being rearranged and renovations are ever in progress, but the basic party structure remains healthy.

This is a paradox of the reform battles of recent years: how the erosion in the Buckley regulatory framework might persuade the Court to leave alone whatever is still standing. What really is the scale of the problem, they might ask? The prime actors of campaign finance have been busily working around the law. The reform community, partly stymied by the courts, has not been able to do much about it. The FEC has gone into hibernation, and it emerges only occasionally to exhibit paralysis. As a result, the prevailing view is that the parties may be restive under McCain-Feingold's strictures, and they are certainly disadvantaged in their competition with the "outside groups," but they are not on the verge of extinction. In fact, so it is believed, they're doing well enough, or at least better than expected.

Is there an exception to free speech if its purpose is to exclude from the conversation certain views or groups? Ulrich Baer and Ted Gup have written dueling commentaries on this question. Baer argues that campuses are right to deny a forum to speakers whose racist or misogynist message defines other voices as unworthy of participation in the debate. Gup answers that once the principle of free speech is abridged for any reason, the inevitable result is more power for those who have already have it, more danger for those who do not. The protection Baer believes he is extending to the marginalized and underprivileged will turn out to be the road to their further victimization. Gupta sees Baer as mistaken that an exception carved out for the most just or compassionate of reasons can be kept under control and not abused for baser purposes.

There is a strong echo of this argument in the conflicts over campaign finance regulation. Those who would like to see the imposition of tighter limits on campaign spending are often making a Baer-like argument, with a twist. They do not peg their point to the content of the paid message: It could be on any subject. But they believe that the capacity to spend heavily to promote one’s views is an act of domination over those who don’t have the resources to answer. The wealthy are establishing an exclusive forum for speech funded at that level: Only a few can participate. This is an affront to democratic self-governance. It is, to borrow Baer’s words, threatening to “equal access to pubic speech,” and limits serve to “ensure the conditions” of such speech.

So, seen through this perspective much like Baer’s, limits are justified. And, just as Baer argues, staunch campaign finance advocates have long maintained that speakers restricted in the use of one outlet for their views can always can turn to others. Those whose speech confronts limits are still free to hold their beliefs and express them, just not at liberty to spread them on whatever terms and in whatever ways they choose.

The Supreme Court in Buckley v. Valeo famously rejected the notion that the speech of some may be limited in order to lift up the speech of others. Gup goes farther, insisting that, even if speech limits are intended to have this leveling effect, they usually don’t. The historical record to which Gup appeals tends to show that well-intended speech restrictions end up working against the interests of the marginalized and underprivileged. Once limits on access to a forum may be set, choices of who may spend, and how much, must be made. Gup writes that“ the advocacy of a dynamic line between protected and unprotected speech grants a license to those in power to smother dissent of all sorts….”

To defend the post-McCain-Feingold version of campaign finance reform, proponents have taken special pains to say that it did not really hurt the political parties. They bounced back, engineered new ways to raise money, became perhaps even stronger. The soft-money the 2002 law took away from them has been replaced by other sources of funding. Online contributions have helped, and so has special new party fundraising authority enacted by Congress in the “Cromnibus.”

But even more important, according to this line of argument, is understanding what a political party is. It is not correct, on this view, to point to the formal institutional party organizations, but parties should be viewed instead as “networks” of allied entities. That would include, for example, interest groups sympathetic to Democrats or Republicans, Super PACs aligned with either major party (sometimes referred to as “shadow parties”), and even Fox or MSNBC.

Now the Campaign Finance Institute has put out new research and commentary in support of this picture of the parties. Having assembled data to show that Super PACs aligned with party interests spent large sums of money in 2016, the CFI declares that there is no cause to “bemoan” the weakness of parties. Parties have “rebounded”: they “have found a way to fight back” after the reforms and Citizens United.

And how did this happen? On this point, CFI words its position delicately. The parties’ recovery can be attributed in part to the “law’s permeability.” The unrestricted funding and spending of Super PACs "looks much like the soft-money the formal parties accepted before the Bipartisan Campaign Reform Act of 2002 (BCRA).”   There are advantages and disadvantages to this development. On the plus side, the "shadow party" PACs don’t have to pretend to be “issue advertising” and can spend on direct advocacy of their candidates. But, more negatively, they have to set up as “independent” of candidates or the institutional parties and cannot coordinate their spending with them.

It is difficult to follow Linda Greenhouse’s reasoning that the Court has been “broken” because it has been made into an electoral “prize.” Presidential candidates campaign on promises to support the nomination and confirmation of Justices who will move the Court’s jurisprudence in a desired direction. Why should they not? The Court does not decide only abstruse legal issues of interest primarily to learned commentators. If electoral competition necessarily features arguments about--to name a few-- reproductive rights, or voting rights, or the role of money in politics, then it will require candidates to take a stand on the Court. And in some elections, the issue will be right in the thick of the fight.

Donald Trump made as much as he could of the critical importance to Republicans of a Court molded in the image of the late Justice Scalia. Secretary Clinton told the Democratic Convention that: “We need to appoint Supreme Court justices who will get money out of politics and expand voting rights, not restrict them. And we’ll pass a constitutional amendment to overturn Citizens United.” No one doubted that the election would be consequential for the Court. Voters were entitled to know how much of a priority each party attached to the issue and what the candidates would look for in their nominees. The parties and their candidates obliged--as they should have.

None of this excuses the Republican refusal to provide a hearing for and allow a vote on the Garland nomination. But it is mistake to confuse this escalation in the struggle over the Court with the larger point about the central importance in national political conflicts of the Court’s composition. The Senate has an obligation to attend to the procedures and norms consistent with institutional interests and its governing responsibility in the long run. One aspect of this obligation is managing and translating political pressures, not giving entirely into them, in order to preserve the capacity of the body to function as a creditable legislature. If Senator McConnell were to announce that the Senate majority will closely coordinate legislative priorities with the RNC and that the RNC Chair will attend, to this end, the weekly Senate Republican Caucus lunches, there would be an outcry.

The Garland maneuver is an abuse close to this in kind. The Republican Senate majority decided to shape a process---in effect, to invent one--to enable the party’s Presidential candidate to campaign on a pledge to nominate the appropriate successor to Scalia, and to turn the nomination into electoral prize. The Senate subordinated its “advice and consent” function to Republican electoral objectives. Never before had the Senate taken the position that a duly elected President in an election year had no call on the Senate to advise and consent on a Court nomination. As Robin Bradley Kar and Jason Mazzone have shown, the Senate has “transferred” to the next administration the power to nominate to fill a vacancy only when the president had assumed office on the death of a predecessor, or a nomination was made by one president after another had been elected but not yet taken the oath.

There is bidding underway for the right to declare what is “precedent-shattering” in the votes ahead on the Gorsuch nomination. Democrats, The Wall Street Journal opines, may disregard institutional tradition by launching a full partisan filibuster. But the Republicans may answer with the nuclear option. In the one way or the other, there is the fear--or pretense--that ruin will have been brought to Senate practice.

But the process question is secondary, and only as important as what preceded it: the confirmation process. And that process is understood to have become a torpid affair. Whether it is characterized as “hollow” or, worse, “dishonest,” it now consists of a series of rituals with little substance. The process opens with the one-on-one "courtesy calls," proceeds to public testimony supplemented by written questions and answers for the record, and then comes the predictable finale on the floor of the Senate. No one expects anything useful to come of any of it.

It is not realistic to hope that a nominee will embrace candor and risk a 40 or more year position on the most Supreme of all courts. And the party whose president made the nomination will not urge the prospective Justice to take that risk. It has gotten to the point that, with other few measures available, nominees are judged on personality characteristics on display during the testimony: “seems nice,” v. “too smug.”