Justice O'Connor, in second thoughts about Bush v. Gore, is troubled that the Court might have erred in taking the case. The objection to Bush v. Gore that she does not address is the one aimed at the outcome—that the Court's fault in injecting itself in the case is compounded by the extraordinary flaw in the decision it reached. To O'Connor, the issue seems to be one of the Court’s reputation; for many others, it is one of result, which is the true cause of the reputational harm done. Her reasoning in this instance brings to mind her expressed regrets about her vote in another elections case, Minnesota Republican Party, v. White, 536, U.S. 765 (2002), and exposes a problem in her view of the Court’s proper role in electoral disputes.

Professor Michael McConnell defends Citizens United, but it is a highly qualified defense. He is critical of the Court’s craftsmanship—the “overlong opinion” is the least of the problems, secondary in significance to a holding that ranged “beyond what the parties argued or the facts demanded,” and that has prolonged the jurisprudential agonies inflicted by the long-standing contribution/expenditure distinction. McConnell believes that the Court, relying on a rationale he views as “naïve” or “obtuse,” missed a better argument for the outcome. So much for the defense. He then proposes an alternative way of seeing—and more favorably evaluating—the decision to bless corporate independent spending.

The Federal Election Commission could not figure out a way around DOMA and authorize by Advisory Opinion separate contributions by same sex couples, married or in civil unions, from shared assets. This was not for want of credible arguments, including ones advanced by my colleagues and me on behalf of the Democratic national party committees. But the Commissioners confronted what they took to be an impassable obstacle in the form of DOMA’s statutory command. One question fairly asked is how the FEC understands its authority to take constitutional issues into account in interpreting the law. The Commissioners did not believe that it was their legitimate function to weigh in on one side or the other of a case, which is not a campaign finance case, pending before the Supreme Court, or to take into account what they imagine the result will be. But what might the FEC have done with fresh, relevant constitutional adjudication in the very field of campaign finance? The agency would be expected to pay close attention to that.

Below is the text of a speech delivered this month to the American Constitution Chapter of Duke University Law School.

The Supreme Court has taken yet another case testing the McCain-Feingold campaign finance reforms, and informed observers anticipate another defeat for the 2002 law. But it could be more consequential than just one more loss in the war against soft money. The case, McCutcheon, is a case involving “hard money” contribution limits which, it has been assumed to this point, Congress possesses wide authority to impose and enforce.

This is the great divide established by Buckley v. Valeo, the one that separates “contributions” from “expenditures” on the theory that restrictions on contributions to candidates pose less of a threat to speech than those applied to expenditures that travel from the wallet of the spender directly to the airwaves or into the mailbox. One is taken to be a weaker form of expression than the other and entitled to less protection.

Such is the standing framework within which the constitutional issues affecting campaign finance are judged: one form of speech or the other, each weighed differently on the First Amendment scale. And trailing along behind them is the right to association, a distant third, and really an echo of the first two, as the associational interest here is typically treated as “expressive” in nature.

As someone who has long represented political actors—counseling on various forms of political action—I detect a problem here, which I would like to explore. It is the problem of refusing independent recognition, a weight all of its own, to political action—the business of building coalitions and acting in concert with allies to achieve political goals. The challenge is to distinguish political action from pure speech and locate a constitutional interest in what I will call here “doing politics.”

One of the consolations of the contribution is its regulatory clarity; the permissible sources, the limits on amount, and the reporting requirements are all well established. And yet even contributions made in good order can cause trouble for the contributor—not with the Federal Election Commission, but in defending public corruption charges in the criminal justice system.