Granting the differences between the two cases,  it is somewhat remarkable that a Supreme Court in a hurry to affirm corporate free speech rights in Citizens United is proceeding at a leisurely pace, in Susan B. Anthony List v. Driehaus, in adjudicating the constitutionality of Ohio’s “false campaign statement” law.  Maybe any complaint along those lines should yield to relief that the Court decided the case—a political campaign case!—unanimously.   And as Rick Hasen has pointed out, the safest bet was that the Court would do as it did, clearing the way for a pre-enforcement challenge while putting off judgment on the core constitutional issue.

Both before and after the Senate Judiciary Committee’s hearing on a constitutional amendment on campaign finance, most of the press coverage understandably went to the dueling appearances of Senators Reid and McConnell. Somewhat lost were the statements delivered by Jamin Raskin and Floyd Abrams.  This is a shame. Each ably represented their opposing views, and when compared and contrasted, their statements bring out large issues in the campaign finance debate and the sources of sharp, enduring disagreement. Among those seemingly unbridgeable differences: what is “reasonable” to expect from the government in regulating political spending?

Dear Commissioners:

The Perkins Coie Political Law Group ("PLG") is pleased to submit these comments in connection with the Forum that the Commission has convened to "evaluate and improve our administration of the law with respect to political parties."

For many years, the PLG's practice has included national, state, and local party committees, and the group has represented these clients before the Commission on a wide range of party issues in the rule-making, advisory opinion and enforcement processes. While a representative of the PLG was unable to be present at the Forum, we have observations to offer from this practice's experience that may be useful to the Commission. The views expressed here are the PLG's alone and not those of any client of the firm.

Heather Gerken writes clearly and with invigorating common sense about issues that aren't routinely given such treatment. She has set out to correct misreadings of Citizens United and she has an alternative reading of its importance. Rather than getting caught up in dreary doctrinal squabbles, she is calling for attention to the adjustments that campaign finance law and doctrine have induced political actors to make and the consequences for political institutions and the distribution of political power. Heather is progressive in her politics but refreshingly practical. In her Marquette Law lecture, she argues that by re-interpreting (or clarifying) the anti-corruption interest, Citizens United has helped move power to “shadow parties,” weakening the traditional political party and distancing the primary party actors in these shadows from the “party faithful” once relied on to press doorbells and hit the streets.

Rick Hasen asks whether, in a recent posting, I defended the Republican National Committee and Libertarian lawsuits challenging the limits on individual contributions for political party independent expenditures. He reads the post as just such a defense, while allowing for the possibility that I may disagree. My purpose was not to defend or support the actions. It was to question how the suit has been characterized by those who are unsympathetic to his goals. So I noted that the suit does not exploit a "loophole"; it is not a "soft money" lawsuit; and the RNC has not previously made this claim.