How to establish priorities for the enforcement of the federal (or any) campaign finance laws is a difficult question. Congress has not specified them by statute and as the years go by, the Federal Election Commission has shown less rather than more agreement on what those priorities might be. As a result, sensible prioritization has sometimes gotten lost in partisan and policy conflicts. Adding to the problem is uncertainty about the enforceability of a law that is under pressure from changes in political practice and expanded constitutional limitations on regulatory action. Now the Commission is changing with the arrival of two new Commissioners, and a fresh opportunity is presented for discussion about the elements of a sensible, effective enforcement program. Ann Ravel, one of two new Commissioners, comes to the job with certain priorities in mind: disclosure and, more generally, “enforcement of significant matters.”

The following was posted on the the National Constitution Center's Constitution Daily blog at  http://blog.constitutioncenter.org/2013/11/the-mccutcheon-case-hard-money-soft-money-and-now-something-in-between/. 

Campaign finance regulation in the United States is complex, and judges have begun to complain about it. Most famously, Justice Kennedy spoke about the proliferating and abstruse rules in his opinion for the Court in Citizens United. At oral argument in a recent case, Justice Scalia suggested that no one really understood the law. The complexity of campaign finance rules is not just the handiwork of the regulators: the Court’s own doctrine can be hard to fathom. Once there was supposedly a clear distinction between “contributions” and “expenditures,” but this is no longer quite the case. And the line that once separated legal, clean “hard money” from illegal “soft money” may soon be harder to discern, after the Court has decided the pending case of McCutcheon v. Federal Election Commission.

Professor Pamela Karlan would have the Supreme Court be more attentive to the impact of its decisions on the current pathologies of American politics. She points out how cases like the one the Court will decide shortly here on recess appointments bear directly on the capacity of the government to function. See Nat'l Labor Relations Bd. v. Canning, No. 12-1281 (S. Ct. docketed Apr. 25, 2013). Then, toward the end of her piece, Karlan ties in campaign finance reform. The Court's decisions on political spending can either “lower the temperature” of contemporary politics or further inflame it. Karlan sees the court as performing poorly on this score in the past, as in Citizens United, and as poised to make the same mistake in McCutcheon v. Federal Election Commission.

Joe Nocera has put out a call for reform and opens the discussion with a few that he favors. Tying his list together is his hope to "invigorate the electorate" and encourage "more responsive, and less extreme, political candidates.” These different goals can pull in different directions. An electorate is often invigorated by negative campaigns—which is not to say that candidates have to be extreme in order to be negative, or that only negative campaigns are invigorating, but the connection is not unknown, either. And there is also nothing to suggest that extreme candidates, however Nocera defines “extreme,” are unresponsive. Many are responsive to constituents that reward them for this type of behavior.

Of the different reforms Nocera lists, two illustrate the reasons why some reform programs open with hope and end in frustration, and others might stand a chance.

George Will has written about the problems that state campaign finance laws present for little people—“small groups and individuals” going about their business and discovering when they dip their toes into political waters that those waters can be treacherous. See Justice v. Hosemann, No. 3:11-CV-138-SA-SAA (N.D. Miss. filed Sept. 30, 2013); see also Galassini v. Town of Fountain Hills, No. CV-11-02097 (D. Ariz. Sept. 30, 2013) at 1 (involving the “rights of an ordinary citizen [to] organize a protest”). The few hundred dollars these individuals and groups raise to express an opinion about a ballot initiative can subject them to a registration and reporting statute. They may find that they must put off their political project until they have complied with a law about which, only a short time before, they knew nothing. Some imagine, rightly or wrongly, that a lawyer has to be called, and eventually the call goes out—for a lawsuit. Will blames the errant course of the law on the insatiable appetite of “liberals” for “the regulatory state.”

But it is not certain that “liberals” or “progressives” who support reasonable campaign finance regulation would all applaud the results in these cases. They might well agree that there is a problem, one that arises from certain theories of enforcement and their application, not from core progressive commitments.