In op-eds and interviews, FEC Chair Ravel has chosen a particular course for her one-year term as the agency’s leader.  She is making use of the pulpit she now commands to express her view that the law is going unenforced.  It is question of Republican intransigence, she argues, and the consequences are “destructive to the political process.”  Commissioner Weintraub has advanced the same position. Republicans inside and outside the FEC have strenuously objected to this conclusion and the manner in which she has expressed it.  And they have added to their complaint the allegation that, in a “listening tour” on dark money and a forum organized on the role of women in politics, the Chair has acted outside her mandate and invited the appearance of partisan bias.

This is all very nasty and has led to collective “acting out,” as in the recent dispute over whether to have bagels or donuts at a 40th anniversary event.

Two different claims are getting thrown together in this clash, and separating them out may help focus on what ought to matter here.  One is the contention that the Chair is taking the agency, maybe for political purposes, beyond its proper mandate, and the other is the recurring charge that only one side of the Commission is serious about "enforcing" the law.

The Court’s campaign finance jurisprudence has come under just criticism for its incoherence, and today’s decision on judicial campaign finance does not mark a step toward improvement.  There is much to be said about the case, but a good starting point is the question of whether Chief Justice Roberts is right to say—in fact, to assert flatly—that “judges are not politicians.” Williams-Yulee v. Florida Bar, No. 13-499, slip op. at 1 (2015).

The Chief Justice is joined in this view, quite emphatically, by Justice Ginsburg, who argues, as she has before, that judges do not participate in representative democratic processes—and so are not properly seen to be politicians.  Over a decade ago, in Republican Party of Minnesota v. White, Justice Scalia, then writing for the Court, had countered that the distinction drawn between judicial and other elections had been exaggerated: “the complete separation of the judiciary from the enterprise of “representative government”…is not a true picture of the American system.” 536 U.S. 765, 784.  In the case today, the Court doubles down on the contrary proposition.

This is an opinion piece co-authored with Sam Issacharoff,  appearing yesterday in Politico:

The money hunt for the 2016 election cycle is in full swing, and there is no surer sign of it than the first complaints recently filed by reform organizations. While, as in the past, there is intense interest in the likelihood of record-breaking sums and innovative spending strategies, this year, perhaps more than in the past, attention has turned to transparency. “Dark money” is dominating the campaign finance lexicon.

Current conversations on this topic have a Groundhog Day quality, and it seems that they are stuck between the dreary and the dreadful. Part of the problem is that nearly 40 years ago, the Supreme Court limited the objective of campaign finance regulation to the prevention of corruption or its appearance, and decades of debate ensued about what is and what is not corruption. And all this in the service of identifying when candidates and political parties come under the “undue influence” of money.

It’s time to retire the tired discourse of corruption and return to the core objective of giving voters access to relevant information. Disclosure today is best understood as a service to voters. Voters care about the “big money,” large contributions and expenditures in support of candidates. Those are the funds that most shape the issues raised and emphasized in campaigns and compel our attention.

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.

A few notes on FEC enforcement policy, the Supreme Court's policy preferences, and the FEC’s February 11 hearing on the regulatory response, should there be one, to the Supreme Court’s decision in McCutcheon.