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.

In his recently published criticism of Stanley Fish, Russell Jacoby returns to Fish's position (in Jacoby’s words) that “there are no abstract principles outside of society and history.” “Making It,” The New Republic (September 2, 2013 at 36). This position, Jacoby reminds the reader, accounts for Fish’s insistence “that there’s no such thing as free speech”—that speech has no worth independent of context and any value it is assigned is the outcome of a political struggle. See, e.g. Stanley Fish, There’s No Such Thing As Free Speech (1994) at 102. (“Free speech is not independent value but a political prize….”)

Organizations required to register and report under New York’s new lobbying disclosure laws have begun to seek exemptions to protect their donors from anticipated reprisal or harassment. This concern for donor privacy was once most prevalent among conservative critics of political regulation, more on the “right” than on the “left,” or at least its articulation there has been most prominent. It was also once primarily an issue in campaign finance disclosure. See, e.g., Buckley v. Valeo, 424 U.S. 71, 74; Brown v. Socialist Workers, 459 U.S. 87 (1982). It seems, however, that the argument is finding favor across the political spectrum and has spread to the regulation of lobbying. Putting aside particular cases and their merits, it is a development with much to suggest about the confused state of mandatory disclosure policy.

The SCOTUSblog symposium on the McCutcheon case continued with postings on various aspects of the speech and government interests involved in the contribution/expenditure distinction. Justin Levitt argues that overall, in granting more protection to expenditures, the distinction correctly ranks the speech values. The independent expenditure is pure self-expression, the spender’s “unique” view; the contribution helps the candidate’s speech, and as he may speak as he pleases, the message he communicates and the “unique” view of the contributor may well diverge. Tamara Piety affirms the Court’s view that “the expressive interests of contributions are minimal” and that restrictions on them may be necessary to protect against loss of public confidence in government, to enhance the competitiveness of elections, and to focus governmental energies on voters and not contributors.

What this analysis misses in following Buckley is the difference between an interest in speaking about politics, and an interest in effective political speech. The contribution and expenditure distinction is rooted in the first of these interests, and it is for this reason that the expenditure is the constitutionally privileged form of speech. In the Buckley view, the spender speaking just for herself may well treasure volume; the more said, the better, in order to drive the points home. By contrast, because the contributor supposedly speaks through another, “by proxy,” a strictly limited amount given still completes the expressive act of association and fully vindicates this more limited First Amendment interest. The contributor, however, in funding candidate speech is motivated by a deeper interest than Buckley accounts for—an interest in effective political speech.