In an interesting Washington Post article, Professor Heather Gerken has proposed with co-authors a new strategy to advance  a core reform objective, the enhancement of transparency, as other options seemingly dwindle after CItizens United and McCutcheon. Heather is well known and well-respected for just such an insistence on thinking beyond the well-traveled, now largely exhausted policy choices. A good example is the Democracy Index, which she constructed to “harness politics to fix politics,” by generating political incentives for the improvement of performance on election administration through the publication of public rankings.

Beyond the various points of disagreement between Chief Justice Roberts’ plurality opinion and Justice Breyer’s dissent in McCutcheon, there is one striking, overall contrast to be drawn. Roberts makes a clear case against the aggregate contribution limits but, as Justice Thomas suggests, he may be less straightforward in revealing his doctrinal ambitions.  Breyer’s jurisprudential orientation is no mystery, but his defense of it, in the particulars, is a puzzle.

A few key points that emerge from a first reading of the Roberts opinion:

1.  The Standard of Review for Contribution Limitations

The Court decides not to address the question directly and so it leaves undisturbed, at least in formal terms, the different standards of review, one rigorous and one less so,  employed for "contributions" and "expenditures," respectively. At the same time, one might ask whether, in any practical application, the differences between these standards matter much at all. This is because the Court continues to insist on a very rigorous definition of the necessary government interest in regulation – actual quid pro quo corruption of candidates or its appearance – and it also rules out an expansive use of anti-circumvention theories, usually highly conceptual as in this case, as a means of satisfying the requirements that any regulation of speech be "closely drawn" to match the government's interest. There will be ample debate in the coming days about whether the Court has effectively adjusted the burden against the government in contribution cases without actually tampering with the standard of review.

It certainly bears notice when the Federal Election Commission decides in bipartisan fashion a case brought by a Republican against a Democrat—(and vice versa, of course). The Commission did that recently, dismissing a Republican Senate candidate’s complaint that a Democratic gubernatorial candidate ran a soft-money attack ad against him.

The most recent issue of Election Law Journal offers interesting writing on lobbying. One of the articles, Money, Priorities and Stalemate: How Lobbying Affects Public Policy, is a study by Professor Frank R. Baumgartner and several colleagues who show that there is an unimpressive relationship between the resources devoted to lobbying and particular outcomes that the lobbyists had hoped to bring about. The authors do not suggest that the money put behind lobbying has no effect, only that we should understand better the nature of the effect and its limits. A number of factors, they argue, are relevant to the measurement of lobbying success, including the capacity of lobbyists to hold the attention of lawmakers who must choose among a broad range of issues in allocating their time. The co-authors of this study also stress that many of the advantages possessed by well-established interests are already "baked in" to public policy, and therein lies a major advantage: that it is much harder to change a policy than to establish one.