Arguments about the prospects for campaign finance regulation now fall broadly into three categories: (1) close up loopholes; patch up the rulebook; (2) wait for scandal to break the logjam; and  (3) rethink the issues.  In recent weeks, we've had clear restatements of these alternatives.

A sense is building in media quarters that the Wisconsin “issue advocacy” investigation, still in limbo in the courts, might be a pivotal moment in the campaign finance reform debate. It is a spicy story: a criminal investigation with allegations about conspiracies and mention of emails to Karl Rove. And it could turn out that state law was violated. At this point there is no way of knowing. Clearer is the central issue arising out of the case: whether the First Amendment protects “a candidate’s promotion and support of issues advanced by an issue advocacy group” where “the speech may benefit his or her campaign because the position taken on the issues coincides with his or her own.”  O’Keefe v. Schmitz, No. 14–C–139, 2014  WL 1795139 (E.D. Wis. 2014).

Heather Gerken writes clearly and with invigorating common sense about issues that aren't routinely given such treatment. She has set out to correct misreadings of Citizens United and she has an alternative reading of its importance. Rather than getting caught up in dreary doctrinal squabbles, she is calling for attention to the adjustments that campaign finance law and doctrine have induced political actors to make and the consequences for political institutions and the distribution of political power. Heather is progressive in her politics but refreshingly practical. In her Marquette Law lecture, she argues that by re-interpreting (or clarifying) the anti-corruption interest, Citizens United has helped move power to “shadow parties,” weakening the traditional political party and distancing the primary party actors in these shadows from the “party faithful” once relied on to press doorbells and hit the streets.

In the growing press about polarization on the Supreme Court, campaign finance cases are cited as leading indicators and McCutcheon as a clinching bit of proof. The argument comes in two different versions. In the standard form, the Court is simply charged with dividing, routinely and reflexively, along partisan lines. A pointed variant is that the Court majority has exhibited something like fierce ideological bias, demonstrating through its campaign finance and voting rights cases that it will favor the rich donor but won’t protect the average, poor or minority voter.

In a close and insightful  reading of Chief Justice Roberts’ opinion in McCutcheon, reproduced here with his permission from the election law listserv, Marty Lederman has called attention to this first paragraph:

There is no right more basic in our democracy than the right to participate in  electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate's campaign. This case is about the last of those options.