There is little left to be said about Judge Posner's second thoughts, and his further thoughts about those second thoughts, about his voter ID opinion in Crawford v. Marion County Election Board. No one seems satisfied with his various statements—neither critics or supporters of the "ID" movement, and certainly not the lawyers whom he seemed to fault for failing to fully inform the Court about the consequences of ID statutes like Indiana's. But the frustration directed at him should be tempered, just a little, by this fact: in suggesting that much legal argument before and by the courts is ill-informed about the political process—and thus about the consequences of regulation or deregulation—the Judge has a fair point. And it is a point that applies to legal decision-makers of all kinds—legislators and regulators, as well as judges.

After one unsuccessful engagement with the Supreme Court, the State of Arizona continues to work through the implementation of its public financing laws. The issue remains, as before, how it can structure the law to draw candidates into the systems. One strategy it devised did not suit the Court: the state discovered that it could not provide offsetting public funding to participating candidates who faced well-heeled opponents and free-spending independent expenditure groups.

After critically examining Lawrence Lessig’s “dependence corruption” theory, Bruce Cain concludes with a few of his own suggestions. Bruce Cain, Is Dependence Corruption the Solution to America's Campaign Finance Problems? (May 19, 2013). Available at SSRN: http://ssrn.com/abstract=2267187. One of these is meant to address the disclosure issues he sees presented by 501(c)(4) advertising to influence elections. As he has done before, Cain explores the grounds for compromise between those committed to disclosure and those who are afraid, and spirited in expressing their fear, that it invites political harassment and reprisal. His proposal is for full reporting but “semi-disclosure”: regulators would collect the information, reserving its use for enforcement purposes, and would provide the public only with data in the aggregate that is useful in identifying in broad terms the sources of candidate support and, perhaps, future officeholder indebtedness. Bruce Cain, Shade from the Glare: The Case for Semi-Disclosure, Cato Unbound (Nov. 8, 2010), http://www.cato-unbound.org/2010/11/08/bruce-cain/shade-glare-case-semi-disclosure.

Ed Whelan in the National Review is frustrated with Judge’s Posner’s renunciation of his Crawford opinion on voter ID. He contends that Posner’s admission of error—and his new, more critical judgment about voter photo ID requirements—is a demonstration of the flaws in the “pragmatic” adjudication that the Judge has long championed. Posner is now convinced that photo ID requirements have led to voter suppression, and Whelan counters that Posner is just expressing a personal judgment, “sloppy and ill-considered,” that follows from an open-ended mode of judging that invites subjective judgments.

So far the commentary on Judge Richard Posner’s expression of regret over his opinion in Crawford v. Marion County Election Board has featured the reaction of those who object to voter photo ID requirements and now feel vindicated. This is understandable, but if Posner just got it wrong, there is only so much left to say, and he might expect credit for his candor. But Judge Posner’s explanation of Crawford is unsatisfying, and it does not really get at the problem with the approach he took in that case.