The next few days of commentary on the Arizona redistricting decision will include the usual debate about which side had the better of the “legal argument.”   And, in truth, both the majority opinion and the chief (Roberts) dissent can be defended.  Each is effectively drawn, making the most of the materials available to it.  Each also takes the usual liberties with the construction of precedent and the standards by which particular points—an example being the majority’s reliance on 2 U.S.C. §2(a)(c)—are deemed relevant.  More interesting is the way that the majority weighs the reform objective.  The majority in the Arizona case adheres to a model familiar in political reform arguments, within and outside the Court.

For this majority, the constitutional question cannot be considered apart from the reform objective served by the initiative creating the Independent Redistricting Commission.  The “people” are seen to be taking urgent steps to protect against officeholder self-interestedness. So, as Justice Thomas points out in dissent, the Court here lauds the exercise of direct democracy, which at other times is given the back of its hand.  The reason for the difference is simple: the objective that, in this case, the tools of direct democracy have been wielded to bring about.

For all the study expended on public corruption and possible measures to control it, few take seriously or pay much attention to the “ethics” rules that Congress makes for itself.  Something interesting is going on here.  On the one hand, supporters of campaign finance reform are quick to defend Congress’ legislative handiwork over the years.  Defenders of McCain-Feingold deny that it was infected with incumbent self-interest.  Upholding the new law against constitutional challenge, the Court in McConnell v. FEC even situated it within a long history of Congressional steps to combat corruption, characterized as   “careful” and “cautious” and deserving of deference. 540 U.S. 93, 117 (2010)[citations omitted].  Yet when Members prescribe rules to govern their conduct in dealings with supporters or donors, the applause is thin and it is rare that legislators get even the benefit of the doubt.

It is possible that an important part of the story has been missed, or underplayed, and that the Supreme Court may have the opportunity to rectify, if only indirectly, the imbalance.

George Will looks at Super PACs and sees the consequences of "reform": it's a mess, he writes, the result of pressures for a “thoroughly regulated politics” that drives political actors to evade foolish rules.  The Constitution requires “unregulated politics”: recent reform experience shows that any other course is sure to end in a bad place.  The choice he sees is between thoroughly regulated campaign finance, which is untenable, or none at all.

An alternative account of unsatisfactory reform experience would focus on the type of regulatory program that has dominated the policy debate.  The FEC is somehow expected to regulate campaign finance as other agencies regulate food or drugs, or fair commercial practice, and the FEC best equipped for the job would be re-structured to take the politics out of its composition and operation.  Underlying all of this is a belief that the right rules enforced by the right people, and repeatedly revised in the light of experience, will bring errant political behavior under control and end cheating.  By this definition the “right” rule is one that attacks a questionable practice at its source, however complicated the rule and however challenging it will be to enforce it.

A few questions and comments have passed back and forth on the election law listserv about a procedural question raised by the Ravel-Weintraub petition to the FEC for a rulemaking: would the two Commissioners apparently filing this petition in a private capacity have to recuse themselves from voting on it?   But there is also a question, not so far discussed, of other consequences that could attach to their decision to raise certain issues in this form.  Potential recusal is part, not all, of the problematic course that this initiative could take.

The Commissioners wish to have the Commission "clarify" two issues they claim to have been thrown into some doubt by Citizens United.  They are concerned that there is some uncertainty about “whether and to what extent” foreign nationals and foreign owned or controlled US subsidiaries can be involved in making corporate independent expenditures.  A second clarification is intended to leave no doubt that employers, now prohibited from coercing their employees into making PAC contributions or facilitating candidate fundraising, may also not direct or pressure them into supporting independent expenditures.

If there was doubt about the law on either issue, the Commissioners have now sanctioned and indeed deepened it.

By petitioning their own agency for a rulemaking, Commissioners Weintraub and Ravel have found a novel way to charge their colleagues with fecklessness. Call it a populist gesture: they are stepping out of their roles as administrators and issuing their appeal from the outside, as members of the general public. They may have done all they could or intended to do with this Petition, which was to publicize their grievances. Or they may have sought to add to public understanding of the grounds of this grievance-to enlighten and inform, and not only turn up the volume of their complaint.

A first point—minor but worth considering-- is whether this agency needs another quirky procedural controversy. What does it mean for two Commissioners, one of whom is agency Chair, to dispense with their formal roles and petition as citizens, filing a petition on plain paper without their titles and just the Commission’s street address? Will they recuse themselves from voting on the petition as Commissioners? Will they testify before themselves?

One explanation provided to USA Today is that it will allow for a hearing at which the general public will be heard. But such a hearing has been held, and the Chair could have unilaterally arranged for another, as she did recently in convening a forum on the role of women in politics.

The answer to this may be no more than: it does not matter, because the Petition serves only to make a point. A sympathetic observer would call it a cri de coeur; one less sympathetic might see it as a PR maneuver. What might unite the two sides is merely their agreement, for entirely different reasons, that the Commission is not in good working order. The risk of the petition initiative is that rather than move the discussion to a better place (hard as that is), it sends a dreary message about the state of the agency.