How much can a candidate do for a Super PAC without illegally “coordinating” with it? Recent proposals would answer that she has to keep her distance—no publicly (or privately) stated support and no fundraising for the independent committee. A bit of a surprise has developed in the debate. While questioning how far these restrictions can go, Rick Hasen concludes that as a matter of constitutional law, Congress may prohibit the fundraising, and on this point, he sides in theory with Brad Smith of the Center for Competitive Politics. Richard L. Hasen, Super PAC Contributions, Corruption, and the Proxy War Over Coordination, Duke Journal of Constitutional Law & Public Policy (forthcoming), 16-17, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2383452 ; Bradley A. Smith, Super PACs and the Role of “Coordination” in Campaign Finance Law, 49 Willamette L. Rev. 603, 635 (2013). Rick Hasen and Brad Smith are not often found in the same jurisprudential company.  So it is interesting to consider how they may have arrived there and why, in their judgments about the regulation Buckley would allow, they appear to have erred.

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.