Right now the basic complaint about Super PACs is that they can enlist the and endorsement support of their favored candidates, as in fundraising, and still claim they are “independent” and spend without limit.  But the Supreme Court—not the FEC, not wily campaign finance lawyers—is the reason why this is possible.  In Buckley, the Court tied “independence” to the coordination of specific expenditures with candidates. Without this coordination, the Buckley Court determined, the candidate runs the risk that the expenditure could be unhelpful or counterproductive and is not fairly charged with a “contribution” subject to limits.

No candidate request, control or involvement means, therefore, no spending limits.  The independent committee's public advertising then must contain a specific statement that the candidate did not "authorize" the communication. 11 C.F.R. §110.11(b)(3). This may be true, but the voter checking the committee’s formal registration with the FEC will find that the committee declares itself, and not just a specific expenditure, to be unauthorized.

In a technical sense, this is true: the committee is “unauthorized” because it is an independent committee whose expenditures are made without the candidate’s direction or involvement.  But the absence of control over or involvement in particular independent committee expenditures does not mean the absence of any contact with the committee.  The candidates can applaud an independent committee’s formation and operation for their benefit, and they may appear at the committee's events as guests or featured speakers and assist with its fundraising.

Voters may well be perplexed.

Fred Wertheimer remains indignant about Citizens United and he certainly comes by this view honestly.  He has been strongly for campaign finance regulation since the 1970s and had a hand in lobbying its successful passage in the first place.  It is not surprising that he is very distressed by the watered-down definition of corruption articulated by the Court first in Citizens United and then with more clarity and emphasis in the “we-mean-what-we-said” restatement in McCutcheon.

Wertheimer says in this new piece what he has said before about “legalized bribery” being the product of the Court’s fecklessness and naiveté.  This charge is familiar, and some object that it is tired and unproductive, but Wertheimer adds to this complaint another: that the decision unleashed “political chaos”.

There are two problems, one closely related to the other, with Rick Hasen’s Supreme Court-centered analysis of how the campaign finance reforms of the 1970s have fallen on hard times. The first, discussed here, is that the Court cannot bear all of the blame. The law ran into difficulties from the beginning, and it is primarily in recent years, when problems with the law had become evident, that the Court majority has given the Watergate-era statute a hard push toward collapse. It may well be that Justices hostile to the law in principle were pleased to be presented with the opportunity to pick it apart. But there was ample opportunity.

But now, having assigned so much fault to the Court, Rick is virtually required to build a reform program around changing its composition.  Progressives have a 5-4 problem now, and all it would take to solve it is one more vote. He states his point like this:

It likely will take a progressive Supreme Court reversing Citizens United and Buckley to provide the opportunity to enact comprehensive campaign reform and then to see the effects of more than a half-hearted reform upon governance.

Is this a viable or promising reform strategy?  Recent experience suggests it is not.

In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse.  He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful. Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902. But he also assigns the Court heavy responsibility for the state of reform.  Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.

To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart.  But an account focused on the Court skips to the middle of the story; it leaves too much out.

The Seventh Circuit decision in Blagojevitch is an intriguing example of judges trying to draw careful distinctions between what is criminal, and what might be acceptable, in the conduct of politicians. Their aim is to protect standard political “logrolling” from criminal prosecution. Among other counts on which he was convicted, the former Governor was charged with trading an appointment to a Senate seat for a position, for himself, in the Cabinet.   The United States threw the book at him—Hobbs Act extortion, honest services fraud, and bribery with public funds-- but where the prosecutors saw perfidy, the Court found only the ways of politics. It specifically rejected the government’s emphasis on Blagojevich’s logrolling for his own benefit—this is how the prosecution would separate political logrolling from impermissible self-interestedness, but the Court was not convinced.

The opinion is short and does not bring to the surface all of its implications. One question it explicitly left open was what in this analysis remains of 18 U.S.C. §599, which prohibits a federal candidate from promising appointments "to any public or private position or employment" in return for "support in his candidacy.” This was not an issue in the case, but the Court left no doubt that it presents a First Amendment question for another day.

A broader and difficult question is what precisely separates acceptable political “logrolling” from impermissibly personal self-dealing. There is something curious or at least not fully explained in the Court’s analysis, which treats a deal made with campaign money differently from one closed with an offer of a public position. Blagojevich was convicted of trying to sell a Senate appointment for cash but found not guilty of trading it for a government job for himself. In each case he was acting for his own political advancement and proposing to pay with an official act, but the outcome depended on whether campaign cash was thrown into the suggested bargain.