Lawrence Tribe and Floyd Abrams have each spoken or written recently about Citizens United, and their views, while not the same, suggest a continuing movement toward appraisals that are balanced between full embrace and outright condemnation. And, as Professor Tribe suggests, a measured judgment of the Court’ performance in that case helps with the re-orientation of the campaign finance debate that is long overdue.

Just before the turn of the year, the Tenth Circuit decided that Citizens United, the organization, was entitled to the Colorado campaign finance law’s press exemption and so was not required to file public financial reports when producing and distributing a political documentary. Citizens United v. Gessler, 773 F.3d 200 (10th Cir. 2014). Colorado has construed the exemption broadly to apply to online publications and bloggers as well as to print and traditional media outlets.  But the State urged that the Court distinguish between entities about which the voters know or could easily learn something, and those hiding behind empty names lacking cue or content and having no extended operating history that listeners or views could consult for useful information.  The latter organizations—the “Citizens for a Better America” or “People for Justice” —are engaged in what it termed called “drop-in advocacy” during election seasons.

The Court, impressed with the distinction, still rejected its application to Citizens United. CU was well known; there was ample information available to anyone caring to seek it out, and the informational interest of voters was adequately protected. On its reading of Citizens United, the Court emphasized the interest supporting disclosure as the voters’ informational interest, not the deterrence of “corruption” or its appearance.

This raises the question: for purposes of the disclosure requirements based on the voter’s informational interest, is it possible to distinguish between an ongoing enterprise of known purpose and the shadowy “drop-in” advocacy group which is often here today and gone tomorrow?  And if it is, is that interest served primarily by disclosure of donors, or by other information about its organization and purposes?

“What is corruption, how should we define it, and why is it bad?”

This is the question put to the panel organized by Fordham Law and featuring key theorists about corruption and equality, all of them on the reform side.  It is available on video and well worth watching.  Rick Hasen has already reported that he and Larry Lessig came to a sort of detente – – coming closer, he said, “than we ever have before” on the role of money. This is an understatement.  By the time they were done, Lessig, champion of a theory of “dependence corruption”, and Hasen, vigorous exponent of a theory of political equality, agreed that they might be talking about roughly the same thing.  Somewhat more on her own was Zephyr Teachout, who argued eloquently for a morality-based view of corruption centrally concerned with shoring up civic culture.

This conference may have signaled the beginning of the end of the emphasis in leading reform scholarship on “corruption”, at least in the sense in which it has dominated the debate for decades.  The difference between Lessig’s position and Hasen’s is “semantic”, as Hasen now sees it, and Professor Lessig does not appear to disagree.  Quid pro quo corruption is not Professor Lessig’s primary concern.  In fact, he told the conference that when he meets with Members of Congress, he finds them generally to be well-motivated—good men and women, as the saying goes, caught up in a bad system.

It is understandable that supporters of redistricting reform would root hard for victory in the Supreme Court for the Arizona Independent Redistricting Commission.  Discounting the claim that there is a unique constitutional problem with the Arizona initiative--that it completely "cuts the legislature out" of redistricting--they fear a broad ruling with adverse effects beyond Arizona on various kinds of independent commissions.

But the suggestion that what is at stake is “democracy” has been pushed far.  Noah Feldman writes, for example, that initiatives constitute a crucial response to what “special interests” can do to “distort what happens in state legislatures.”  Of course, initiatives are also not free of distortions.  Success in the initiative process can go to the side with the most money; initiative campaigns do not necessarily qualify as the most informative or accurate in the presentation of their case; ballot language can be confusing to voters; and so forth.

The argument over the constitutionality of the Arizona Independent Redistricting Commission can go the way of plain language debates, and it can also branch off into the question of whether it is good to have legislators function under the threat of initiative. A fine brief filed by Professor Nate Persily, on behalf of himself and eminent political scientists Bruce Cain and Bernard Grofman, takes on that question, among others, and answers it in the affirmative.

Under their theory, legislators who know that the public might act in their place may engage in constructive defensive maneuvers: they may make more of an effort to craft a redistricting map that is fair or not lopsidedly partisan. And even if the voters take this decision out of their hands, the lawmakers will be spared the bloody battles that are singularly damaging to legislators' working relationships across-the-board.

On this view, initiatives like the one in Arizona can be defended as effective in structuring incentives for sound legislative decision-making or in protecting against the collapse of comity. But they can also draw the objection that the effect of these incentives is uncertain and that this uncertainty exacerbates constitutional concerns about the invasion of a legislature’s authority.