Norm Ornstein predicts trouble if the Court in McCutcheon strikes down the aggregate contribution limits—the trouble of increased corruption. If You Think Citizens United Was Bad, Wait for This Supreme Court Case, The Atlantic (September 26, 2013). Brad Smith disagrees and argues that experience shows there is nothing to fear. The Next Battle in the Fight for Free Speech, Wall Street Journal (September 29, 2013). Two knowledgeable analysts come to these very different conclusions; the reason, it appears, is that they are not using the same doctrinal yardstick for measuring the potential for corruption.

The recent emails from the Federal Election Commission, unearthed through a Freedom of Information Act request, don't reveal much that is new about the agency or the election law bar.  That Republican or Democratic lawyers might speak an encouraging word to the Commissioners on their side of the aisle does not qualify as breaking news. Here and there is a congratulatory note, or a substantive but not case-specific comment: but that's about it. Should anyone be surprised, it would be the long-time skeptic who has imagined that the parties are weighing in on pending decisions in the dead of night. There is none of that in these disclosures.

Arguments about transparency have become hard to follow. Government can demand an accounting of money spent to influence politics or public policy; it can certainly compel disclosure of the paid, direct lobbying of legislators. But this is among the easier cases, after which there is disagreement—and confusion—about what the government has the power to do or members of the public have the right to resist.

David Keating and Senator Durbin had just such a difference of opinion. Durbin had asked the Center for Competitive Politics and other organizations (including the Cato Institute) to state for the record whether they had funded ALEC in 2013, and whether they had supported the organization’s “stand your ground” legislation. See, e.g., Letter from Senator Richard J. Durbin to John Allison, President and CEO of the Cato Institute (August 6, 2012). Keating disputed the request’s propriety. Letter from David Keating to Senator Richard J. Durbin (September 16, 2013). To his mind, the request was an act of intimidation and an abuse of office. Any association with ALEC was for political purposes, and Durbin, no friend of ALEC, was using official letterhead and a call for information to accomplish government intimidation of a political adversary.

As the McCutcheon case nears argument, there is more discussion of the consequences if the Court strikes down the individual aggregate contribution limits. The court could certainly take the occasion to alter the basic Buckley framework and tighten the scrutiny applied to contribution limits. But another line of argument holds that the consequences would be sufficiently drastic if the limits fell but the fundamental constitutional law of the land did not change. On this view, the aggregate contribution limit would invite massive spending for the benefit of candidates that would heighten the risk of corruption.

The Campaign Legal Center has alerted its readers to a “flood” of challenges to campaign finance laws, and its message is that the reform advocates must remain at their battle stations. It is certainly true that interests hostile to any campaign finance regulation are hard at work; they might well believe that in this time, with this Supreme Court, their moment has come and no time should be wasted. But not all of these challenges are fairly lumped together and described as one indiscriminate assault against any and all reasonable regulation. A few raise questions that even those favoring reasonable limits on campaign finance should take—and address—seriously.