A solid case can be made that judges should not be picked in elections because forcing them to become candidates, and to campaign, taxes confidence in the courts. But many judges are picked by election and then the question becomes how much to bemoan, as do Rick Hasen and Dahlia Lithwick, the predictably aggressive campaigning that these candidates, their allies and their opponents may adopt to win. Campaigns are campaigns, and it is not easy to sort out which particular set of rules or standards should apply only to judicial contests. Expectations may well be different for judges, encapsulated in a sense that they should be above the political fray, but once they become candidates and are thrust into the middle of political contention, are those expectations realistic?

Another question is how many of the same critics troubled by the raw political behavior on display in judicial campaigns can maintain that position while calling attention to the “political” bias in judging. A “cataract of studies” have shown that judges’ partisan backgrounds and ideologies, among other factors, influence how they will decide issues which are standard subjects of political differences—issues like reproductive rights, or the role of markets or government, or policing methods. Eric Posner, “Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform,” 75 U. Chi. L. Rev. 853 (2008). In other words: issues that voters might care most about. And yet Hasen and Lithwick quote, critically, this passage from a judicial candidate’s appeal for votes:

I am a Republican and you should vote for me. You’re going to hear from your elected officials, and I see a lot of them in the crowd. Let me tell you something: The Ohio Supreme Court is the backstop for all those other votes you are going to cast. Whatever the governor does, whatever your state representative, your state senator does, whatever they do, we are the ones that will decide whether it is constitutional; we decide whether it’s lawful. We decide what it means, and we decide how to implement it in a given case. So, forget all those other votes if you don’t keep the Ohio Supreme Court conservative.

The Commission seems to be back at it again: quarreling publicly over disclosure rules and policy applied to the Internet advertising. The Republican Commissioners are calling for a public uprising of sorts against Commissioner Ravel’s call for reconsidering those rules and policy as part of an Advanced Notice of Proposed Rulemaking. They are urging public comments—they have in mind protests—attacking tighter reporting requirements. The Internet has been provided with lenient regulatory treatment, a choice for which the Commission has been generally applauded, and the Republican Commissioners want to keep things that way. Commissioner Ravel has both moved to reopen the question and indicated her view that more regulation may be in order—that significant sums spent for political advertising on the Internet should be viewed, for disclosure purposes, as no different than broadcast, cable or satellite communications.

Those who are rooting for a Commission that works better and more collaboratively across the partisan divide have reason for concern. Only a few weeks ago, the Commissioner managed to approve rulemakings to take account of recent Supreme Court decisions. The vote was not unanimous, but a 4-2 decision was progress, and at the Commission table, there was hope expressed that the agreement reached that day marked a fresh commitment among Commissioners to explore additional areas for agreement. It would be a shame if now, in the flap over Internet regulation, the Commission quickly regressed to caustic exchange and administrative stalemate.

A recent posting here reviewed possible paths for campaign finance regulation: a determined attack on loopholes, a biding for time until scandal possibly arrives and allows for legislative reform and expanded opportunity for regulation, or an openness to rethinking the issue?

Which of these is chosen will be influenced by which aspect of campaign finance is thought to be really pressing: how much money is spent (volume); how it is spent (influence), and how much is publicly known about it (transparency). Of course, in any critique of campaign finance, from the left or right, there is a little bit of everything thrown in, but one of these three considerations is usually emphasized over the others.

Arguments about the prospects for campaign finance regulation now fall broadly into three categories: (1) close up loopholes; patch up the rulebook; (2) wait for scandal to break the logjam; and  (3) rethink the issues.  In recent weeks, we've had clear restatements of these alternatives.

A recent posting here suggested that the constitutional analysis of ID statutes is foundering on the issue of partisan motivation—the politics of ID. The centrality of this motivation is inescapable. it is impressing itself on a prominent jurist like Richard Posner, once dismissive of claims against ID statutes, and it is supported by the evidence considered by political scientists (see here and here). Yet the jurisprudence developed around ID has fared poorly in showing how political motivation can be incorporated into a constitutional test.