The doctrinal architecture of campaign finance is straining under the pressure of adapting to new realities. Most of the hard questioning has been expended on the faded distinction between contributions and expenditures and its relationship to free speech values.  It is all thoroughly familiar by now: the contribution which is “speech by proxy”, entitled to less protection, and the independent expenditure which is more pure speech and, while subject to disclosure requirements, cannot be put under dollar limits.  How the money is spent is the controlling inquiry: who spends it is less important, and Citizens United pushed this point harder in holding that free speech rights don't depend on the identity of the speaker.

The hole in this analysis is the absence of attention to the activity of politics—the "doing of politics.”   People who come together are doing more than speaking: they are doing politics, acting in concert to effect political goals.   This is a dimension of First Amendment jurisprudence that is normally covered in discussion of the freedom of association.  But attention to association has been fleeting, largely disappearing from Supreme Court jurisprudence, and when it reappears, it often collapses back into the free speech-centered jurisprudence that has reigned for decades now. The associational right is treated as expressive association, just the association that enables participants in group efforts to amplify their individual "views."

An account of doing politics may seem in the first instance to serve only a broadened perspective of First Amendment protections.  On this view, it is another weight placed on the scales against regulation. But it is also a way to think about what is really happening in the conduct of politics, and to relate it to the goals and limits—both the goals and limits—of regulation. And it seems especially useful now when a new Super PAC donor, one refusing to play “second fiddle,” lays claim to a commanding position in electoral politics.

There has been news of an original structure for Super PAC activities, and it has scrambled assumptions about how these entities might be organized and function. The coordination debate to this point has been all about candidate control or influence.  In the different arrangement coming to light, the donors behind the PACs are striving for control.  A source tells Bloomberg Politics: “Donors used to be in the category of ‘write a check and go away’ while the operatives called all the shots. Donors don’t want to play second fiddle anymore.”

It appears that the notion now is for the donors to play multiple fiddles.  Funders would put together several PACs committed to the same candidacy, each such committee to be operated for discrete purposes.  One PAC would fund TV ads, another would handle social media, and additional committees would attend to any number of other tasks, including data mining, voter turnout, or volunteer recruitment.  David Keating has suggested that this network would also enable each funder to have the consultants of her choice, or spotlight within her PAC’s communications the issues she most cares about.

Has the Supreme Court created an environment “pregnant with possibility of corruption?”  The Washington Post Editorial Board makes this case, building it around the rise of super PACs, and it locates the problem in the Supreme Court’s reasoning in Citizens United.  The argument does not clarify especially well the choices ahead in campaign finances, or the role of Citizens United in shaping them, or the means of grappling with bona fide corruption.  The Post’s miscue is the insistence on keeping campaign finance reform tied tightly to the corruption debate—or, more accurately, tied up with it, with nowhere to go.

The Brennan Center regularly devotes space to a review of the literature on the money-in-politics debate, and this week, Benjamin Brickner discusses an insightful paper on “coordination” by Professor Michael Gilbert of the University of Virginia and Brian Barnes, a J.D. candidate there.  The authors present the case that anti-coordination rules don’t operate to prevent corruption achieved through independent spending--and that they can’t, even if strengthened.  There are too many ways around coordination restrictions: a spender can comply with the law, spending “independently” for a candidate, but still offer the politician value that can be “cashed in” later.  If coordination rules do not deter corruption but do limit speech, then their constitutionality is thrown into question.

It is not difficult for an independent group to figure out what the politician may need and appreciate. Public sources of useful information are plentiful and these can be supplemented by private polling and other expert advice; and if there is a risk of missing the mark and timing or targeting an ad imperfectly, there remains value to be conveyed.  As Gilbert and Barnes point out, this is a question only of the efficiency of the expenditure, and some ground can be made up by just spending more money.  A politician can still be grateful for $75,000 of discounted benefit from an ad that cost $100,000.  As Gilbert and Barnes frame the point, “[U]nless the law prohibits candidates from publicizing their platforms and strategies, and outsiders from paying attention, then outsiders will always have enough information to make expenditures that convey at least some value.”

The Super PAC is the leading issue in campaign finance, and this is only superficially because it is new, exotic and, to many who write about it, alarming.  It has without question brought to head the fault line running through the contribution-expenditure distinction and expedited the obsolescence of the Buckley framework.  And it is forcing the question of whether we should be concerned in campaign finance about corruption or its appearance, or perhaps about something else.  And the answer is “something else.”