In the coming campaigns, in 2014 and beyond, political reform is certain to be a topic for discussion. The press will look for a clear statement of the candidate’s positions; the Supreme Court will decide at least one more case that will excite comment and lead to proposals; and certain other prominent issues, such as income inequality and government performance, lead naturally to arguments about campaign finance and lobbying reform. We can imagine, too, that the candidates in addressing these issues will sort out as they most always do—Democrats supporting reform that Republicans find objectionable, with the divide displayed sharply in competing depictions of the soundness and effects of Citizens United.

A federal judge once opined that the federal campaign finance laws were hard to follow, and the same perplexity has been expressed by the Supreme Court—directly, in the course of oral argument, and somewhat less directly in an opinion of the court.  See Citizens United v. FEC, 558 U.S. 310, 334-35 (2010) (Kennedy, J.).  Conflicts over the constitutionality of various enactments and rules are common.  And much has been written about the  use and misuse of the heavily regulated legal process to harass, wear down or disgrace political adversaries.

Notwithstanding all of that, the beleaguered participant in the political process looking for legal advice can run into trouble when shopping for free or discounted legal services. Under federal and numerous state laws, these services are a contribution, like any other “in-kind” contribution, with some exceptions.  A fully  individual volunteer effort is typically permissible.  Or a firm can donate but not bill for the time of its lawyers,  provided the services are solely for the purpose of assuring compliance with the law  and the value of the services is disclosed.  As soon as life becomes more complicated, getting the help of a lawyer runs into contribution limits or restrictions on the sources of funds.

Having worried about candidate fundraising for independent committees—officials were “vexed” about this prospect, the press reported—the Minnesota Campaign Finance and Public Disclosure Board appears poised to act on that worry. A new draft it will consider next week concludes that any candidate fundraising support for an independent committee is “coordination” and blocks the committee from proceeding with unlimited expenditures for the candidate.  Minn. Campaign Fin. & Pub. Disclosure Bd., Draft Advisory Op. 437 (Feb. 11, 2013).

Is Bill Maher proposing to cross the line from press commentary into campaign activity, or is he merely innovating, as the press is  scrambling everywhere to do, and preparing for a New Wave Editorial?  As Rick Pildes suggests, this question is mooted by Citizens United, which means that HBO and Maher can count on this decision to provide him much of the space he may need for his editorial project. Prior to Citizens United, HBO would have struggled to defend this program; in the wake of the decision, the path is generally clear, depending on how Maher produces the show.

Back and forth go the arguments over alternatives to the current Court’s campaign finance jurisprudence.   The scholarship it produces can be interesting, and the passions behind it lively, but the question always remains whether constitutional theory can result in manageable guidance to the Court.  This key question is one that Larry Lessig and others advancing an originalist anti-corruption theory of jurisprudence have had difficulty answering.  Without this answer, their work encourages hard-core opponents of any regulation to believe, or to claim, that  the alternative to Buckley—and to the current Court’s gloss on Buckley—is effectively limitless government authority to restrict spending on politics.