Some weeks ago, a number of individuals with different professional backgrounds and perspectives on campaign finance came together to urge the Federal Election Commission to take certain initiatives to improve the enforcement of the law.  (I was one of them.)  In a period of difficult, highly contested constitutional and legal questions, the FEC is in a difficult position, often charged with the perceived “sins” of others and itself divided  over regulatory direction.

But in this turbulent period, a key step for the agency is to define the available paths toward clear law, accessible and regularly updated guidance to those subject to the Act, and strengthened compliance and bipartisan enforcement. The signatories to the letter urged that the Commission consider revisions to “advance core regulatory purposes and policies in the public interest, such as the more effective implementation of well-established disclosure requirements.”

Today, in a further step, the same group has filed a Petition for Rulemaking, calling on the Commission to implement the statutory mandate to expand the Administrative Fines Program, address ambiguities, omissions and uncertainties in its guidance and reporting forms, and generally improve the enforcement of the disclosure provisions.  Once again, the signatories are unified in their view that this is a critically important function for the FEC to play, and that respect for the law and the prospects for successful compliance depend on sound administration of core statutory requirements.

The five year anniversary of Citizens United finds critics largely where they stood when the opinion as first issued. Enthusiasts remain cheered and critics have lost none of their gloom. One difference is that time has passed and the inquiry has shifted from predictions about what CU will have wrought to claims about what the data shows about its effects. There is no agreement here, either, and any one analyst’s interpretation of data typically corresponds closely with her heartfelt views of the decision’s rightness or wrongness. Like most campaign finance debates, this one does not change minds.   We are in for endless and inconclusive argument about CU’s contribution to oligarchic rule, or its responsibility for “dark money, or for trends identified in the volume of money spent in politics.

These “big picture” disputes may block a clear view of other, more subtle but still significant changes in campaign finance doctrine and practice brought about or encouraged by CU. These are changes that can’t be precisely pinned to CU alone: the whole course of campaign finance doctrinal development was driven, principally by Buckley, in particular directions, and CU, after all, is an “independent expenditure” case the logic of which rests in the main on the 1976 case. But CU as a case about independent corporate spending, and about campaign finance regulation more generally, occupies a special, prominent place in this history, and it is in this context that it might be best understood.

As the Supreme Court prepares to hear argument on the challenged ban on personal fundraising by judicial candidates, writers arguing for the preservation of this prohibition continue to make their case. Kate Berry of the Brennan Center replies to a posting here and disagrees with the proposition that it is hard to see a major benefit from a restriction on speech described as “modest.” Garrett Epps shares her position that the prohibition should be upheld. In each case, the writers maintain that if we have to have judicial elections, they should be subject to special rules to safeguard public confidence in an independent judiciary and that this is one such rule.

What is offered in support of this position?

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.

Restrictions on the timing of campaign finance activity have met with mixed results in the courts. The injunction just issued in Houston blocks a ban on candidate fundraising in municipal elections to have taken effect except for the period beginning February of each election year through early the following year. Gordon v. City of Houston, No. 14-CV-3146 (S.D. Tex. Jan. 9, 2015). Other, but not all, cases have turned out badly for bans on contributions during legislative sessions.