Nate Persily has written intriguingly about the “dangers” and “opportunities” presented by the increasing prominence, and perhaps eventual dominance, of Internet platforms as outlets for paid political speech. We’re not in a television age anymore, he cautions. Now we have portals that have fundamental decisions to make about whether and how to apply policies devised for commercial speech to political communications. Those decisions concern standards of tone, fairness, accuracy and content, e.g. hate speech, but also those of transparency, such as requiring more complete disclosure than the just an organization’s name might provide of the true sources of financing for its paid ad.

The opportunity Professor Persily sees is for these Internet platforms to effect policies beyond the constitutional authority and probably the political reach of the government. The danger he points out is that private organizations may use their market power to engage in censorship practices and to do so without full transparency or accountability.

This is a timely, insightful call for attention to a transition in the political marketplace that might otherwise escape full and searching notice. A major problem is the one of trying to have it both ways. We might ask these Internet platforms to be restrained in the exercise of their power in some respects, but less in others, depending entirely on variable judgments of the worthiness of the goals. Professor Persily has suggested measures to address what he describes as “well-known pathologies of the campaign finance system.”

The Seventh Circuit insists that the district court in the Wisconsin ID litigation was too lenient with the option of an affidavit for voters who could not with reasonable effort obtain a qualifying photo ID. So the Court directs that this relief be limited to the class of voters in genuine need, and it is seeking from the court below “objective standards” election officials could use in determining what constitutes “genuine difficulties” in obtaining ID.  To support its position, the Seventh Circuit cites a portion of Crawford, offering this selection:

Yet the Supreme Court held in Crawford v. Marion County Election Board, 553 U.S. 181, 198 (2008), that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” A given voter’s disagreement with this approach does not show that requiring one trip to a governmental office is unreasonable.

The Seventh Circuit chooses to omit the opening three words of this sentence in Crawford: “For most voters…” In other words, the Supreme Court in Crawford does not say that the inconveniences are minor for all voters, but more generally for most voters. It does not even suggest that the number of voters for whom these inconveniences would be significant are small or trivial in number, only that it is a “limited number” and that “most voters” don’t confront the problem. Crawford suggested that the limited number may include elderly persons born out of state and those economic and unspecified “personal” limitations. 553 U.S. 199.

Donald Trump doesn’t have any particular feeling for irony and so he misses it altogether in his recent suggestion that the coming election is likely to be rigged against him. Of course he’s now doing the rigging: he’s rigging the post-election assessment of the results. If he wins, it reflects the will of the electorate; if he loses, that will has been thwarted, by a rigging.

This raises the question discussed here of whether, if there are limits to ends-justifies-the-means political ethics--if it is accepted that there are superior and inferior types of political morality-- Trump has exhibited clearly a moral style that is both distinctive and troubling.

It does not seem that there is a clear and shared view of when political ethics have become unacceptable, and so, in Trump’s case, the analysis has now shifted to issues of mental health. It is not suggested that his lying exceeds the limits of the ethically permissible but that we have departed from the domain of ethics altogether.

The voting rights and campaign finance wars have been fought on terrain largely shaped by two major and controversial decisions: the Crawford case on voter ID requirements, and Citizens United on independent spending. Critics have lamented Crawford’s naiveté about the stated value and inevitable partisan misuses of ID requirements, but it seemed that supporters had going for them the “common sense” judgment that voters required to have an ID to board a plane can be reasonably asked to produce one to vote. So one might have thought that Crawford was here to stay, even as the Justice who wrote for the Court, John Paul Stevens, has expressed regret.

Citizens United got more bad press in many quarters for opening up direct corporate political spending and for giving a boost to Super PACs. Its author, Anthony Kennedy, continues to defend it. He points to the silver lining: the court’s brief, arguably cursory, salute to disclosure, even as Kennedy concedes it is not yet working in practice as he had hoped it would. The critics who think the court flipped open the Pandora’s Box of campaign finance have put whatever hopes on the antidote of disclosure, and more speculatively on a constitutional amendment to overturn the case’s core permissiveness.

In light of developments of recent weeks, it is interesting to consider where the law set in motion by these cases is heading.

Talk about the corrupt politician is usually concerned with the exploitation of public position for personal gain. He misuses his office, or makes that promise, because he is dealing for himself—looking for personal profit or a political advantage, and leaving to the side the public interest he should be representing. And for the most part, he is condemned.

But if he stops short of that and engages in undesirable conduct to win his office and “get things done,” then the sense is that we are in the presence of the usual nasty stuff politics is made of, such as a certain amount of deceit and double-dealing and promise-breaking and just “hardball.”  It is widely, if not happily, accepted that the morality of politics is of a different kind, and politicians, effective ones, have no choice but to behave periodically in unattractive ways-- politics being what it is.

We also assume that there are limits the politician should observe. We would want the politician to exhibit, privately or publicly, a “habit of reluctance,” a discomfort with the moral costs of behaving certain ways. The fear would be that if there were no such reluctance, there would be, in the words of Bernard Williams, no “obstacle to the happy acceptance of the intolerable.” “Politics and Moral Character,” in Moral Luck (1981), at 63. The Nixon White House that arranged for sophomoric “dirty tricks,” like flooding an opponent’s state headquarters with unwanted pizzas, could and did slide toward far more serious misdeeds.  And the Nixon example shows that the moral choices in a campaign are not irrelevant to the choices made in governing.

Where in all these considerations does Donald Trump fit in? As a candidate and now the nominee of a major party, he has engaged in and made a splashy display of tactics that include notable carelessness with or disregard of facts, vicious personal behavior toward others, and threats to do personal harm (as in threatening to expose Ted Cruz’s wife etc.) He has drawn the charge of being a “demagogue” and a “bully”, of being “vulgar” and grossly irresponsible in the tactics he favors and the policies he advocates. What is left unclear is whether he is like Nixon, or he is a special case.