Watergate is associated with abuses but also with reforms-- measures, the “Watergate-era reforms,” intended to go some distance toward solving the basic problems.  For scholars, law professors and the community of practitioners engaged with these reform enactments, the new biographies of Nixon now being published are irresistible. Evan Thomas, Being Nixon: A Man Divided (2015); Tim Weiner, One Man Against the World (2015).  To borrow a sneering comment by Nixon, it is easy to “wallow in Watergate.”

One question that then comes up is: what in these narratives is the nature of the elemental “corruption” that led to Nixon’s downfall?  There's mention of campaign money, in the discussion of secretive fundraising and the "hush money" that Nixon and his staff paid to the Watergate burglars in return for their silence.  But private money--brought from the outside to corrupt the government from within--is not the key, or a key, to the story.

Doubtless contributors to the 1972 reelection effort came under immense pressure to give, and from earlier works, where the attention to this issue is more systematic, it is clear that the people raising the money were more than willing to consider favors for those who agreed to supply it.  This was a problem that cut across parties and implicated politicians other than Nixon: “Candidates of both parties have eagerly dipped their fists into these corporate cash drawers—and presumably repaid the kindness in government favors.” J. Anthony Lukas, Nightmare: The Underside of the Nixon Years (1988).  Reform was in the air, and indeed the first such measure, the Federal Election Campaign Act of 1971, came before the bungled burglary at the Watergate.

Moreover, much of the Nixon re-election campaign activity violated the law in place in 1974.   See, e.g. Victoria A. Farrar-Myers, “The Ripple Effect of Scandal and Reform,” in Watergate Remembered, ed. Michael A. Genovese and Iwan W. Morgan (2012), 129.  The issue was disregard of the law: the House Articles of Impeachment included the charge that the President had failed to execute the laws--the laws then on the books--that controlled the “campaign financing practices of the Committee to Re-Elect the President.”

The core, defining Watergate abuses involve the power of the state directed lawlessly outward, by those in office, to win policy battles, or rig elections, or settle scores with political enemies.  Government officials were not bullied; they seem to have done the bullying.  To Nixon's way of thinking, he could put to use the his powers of the state to a good end, in the public interest: wear down his political opposition and enact domestic program, and more than anything else, clear the way for the "peace with honor" he imagined he was pursuing in Vietnam.  He was sure that other Presidents had done this sort of thing before him. It was rough stuff, “nut-cutting”, the will to win and persevere against enemies committed to his destruction.

Larry Lessig is not the first single-issue candidate in American presidential history, but from Tom Mann’s perspective, he picked the wrong issue.  Mann says that to isolate money-in-politics, to treat it as the key to solving all other problems, is to “dumb down” politics.  He takes this to be a disservice to voters, a deception, and a diversion from the discussion of other issues that have to be tackled and the successful resolution of which will not decided by campaign funding.

It is a harsh attack, and a surprising one from Mann, a stalwart supporter of campaign finance reform.  Lessig has responded by suggesting that Mann is in no position to accuse him of gross oversimplification: he notes that Mann has singled out the Republican Party as the culprit in the dysfunctional polarization of national politics, and this, Lessig contends, is an even “simpler story” than campaign finance about what ails the country.

Larry Lessig, articulate and impassioned, keeps at the task he has set himself in arguing the case for political reform. It has led him to experiment: as in setting up a Super PAC, which is not what a campaign finance reformer would be expected to do. Now he is on to something new, considering a run as a Referendum President who would bid for a mandate for political reform and then, if successful, serve only as long as needed to bring the reform about. Then power would pass to the Vice President and he, Lessig, would depart the stage.

This “referendum” candidacy is also a reform proposal, a call to evaluate on exceptional criteria the merits of a Presidential campaign and the performance of a President. It can be considered separately from the soundness of the specific measures that, as President, he would press Congress to adopt on campaign finance, voting rights and redistricting. The question the candidacy raises is how he proposes to campaign for those measures, and what sort of Presidency he is arguing for, and one has to assume that he is promising a candidacy, then a Presidency, that meets fundamental expectations for a better, reformed politics. It would take the voters seriously, engaging them in a substantive exchange on the merits of this way of thinking about the election of a President.

The court’s worst blunder, she said, was its 2010 decision in Citizens United "because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”

This is what Justice Ginsburg has said, but is not clear without a bit of guesswork which she means.  But it seems to be about “what has happened to elections", including cost, and not so much how the conduct of elections translates into bad or corrupt government.  One cannot read too much into it: the comment is short, but her few words describe a problem with the electoral process.

Distortion of that process, or the interference with its ideal functioning, is a major worry for those observing money in politics, separate from any consequences for the integrity of government that the politicians, once elected, are responsible for running. This electoral corruption of elections is different from the quid pro quo corruption of government that animates the strictly constitutional and legal debate.

In Friday’s New York Times, Stuart Stevens refers to just the electoral impacts of campaign finance when discussing the effects of Super PACs in altering the character of Presidential primary competition.  A number of the now 17 candidates entering the Republican Presidential primary have jumped in with the confidence that, with a Super PAC at their side, they have the resources to hang in there for a spell. Doing well in the first primaries is no long an invariable condition of viability.  Stevens is not all that worried about it: he likes the free-for-all.  Others are less sure.

These understandings of “corruption” can be, and often are, conflated, but are very different.  The case against Super PACs as agents for electoral corruption is straightforward: a handful of individuals can float a candidacy lacking in more general public support and keep it artificially alive.  The costs increase for other candidates; debate stages are crowded with contenders who are not truly viable over the long-term; and the mechanism by which public preference is measured is skewed.

Perhaps for this reason, it goes unnoticed that arguments directly related to government corruption—and proposals for reform based on them—seem, by contrast, increasingly clouded and tenuous.

In the wake of the Wisconsin case, and in the arguments more generally about “’coordination,” it has been suggested that not too much should be made of the dangers of criminal investigation in campaign finance cases.  Hard-charging investigative techniques employed in the service of creative theories of liability are staples of white-collar criminal enforcement.  Why, critics such as Rick Hasen ask, should campaign finance law enforcement be different?

The question of whether criminal campaign finance investigations are just like any other is worth careful consideration, detached from a lively, high-stakes conflict like Wisconsin’s.  The federal experience is instructive.