Judges Easterbrook and Posner square off in their opinions on the Wisconsin voter ID statute and their exchange comes down to two questions: the differences in the design and effects of ID statutes, and the significance of partisan motivation. Frank V. Walker, Nos. 14-2058 & 14-2059 (7th Cir., Oct. 6, 2014). Easterbrook is casual, if not careless, in discussing the differences, and in his treatment more generally of facts. Posner insists on their importance. Easterbrook sweeps aside the question of political motivation, and Posner does not.

This is the position I submitted to the New York Times’ “Room for Debate” Forum, on the question of the state of campaign finance regulation and possible directions for its future:

 

Forty years after the passage of the federal campaign finance laws, we have considerable experience with how they work, but the debate about them has become tired and repetitive. No one is happy with the situation as it now stands: not those who worry about corruption, not those troubled by the First Amendment cost of extensive regulation, and not those who yearn to bolster public confidence in the integrity of their government. There is everywhere evidence that reconsideration and rebuilding are in order.

The Federal Election Commission approved rulemakings to conform its regulations to the Supreme Court’s decisions in Citizens United and McCutcheon.  This was not accomplished in a hurry, more than four years having passed since CU was decided. That it happened at all was generally received well, but with dissents, which are worth noting as the sources of agency functioning or dysfunction are analyzed.

The Campaign Legal Center and Democracy 21 have filed and published with a press release comments on a matter, scheduled tomorrow for FEC consideration, involving political party financing of national conventions.  These organizations have strong views on the alternatives before the Commission, as would be expected. But their choice of arguments says much about contemporary campaign finance debates.  (Note: I am counsel to one of the parties that filed the request for an Advisory Opinion).

In a letter sent to the Federal Election Commission yesterday, individuals who have experience with the FEC applauded the move toward a rulemaking to conform the rules to recent Supreme Court decisions, and urged more of the same, in a similar spirit of putting the regulatory house in order. (I am one of the signatories).

The FEC is followed closely only when it is contending with the most difficult, most divisive issues.  It is blamed for much of what makes critics unhappy with the law when there are major contributing factors—like changes in constitutional jurisprudence—that the agency can do little about. But in the meantime, the agency is charged with implementing the core requirements—limits, prohibitions and disclosure requirements—which courts have upheld.  How it does this job matters, and it should matter to both proponents and opponents of more extensive regulation.