Here are three recent lines of argument about campaign finance, two of them in response to McCutcheon and one of them about the escalating conflict between the FEC Commissioners.  Each is interesting in its own way; they are also constituent parts of the basic, most frequently heard defense of the Watergate-era regulatory program.

Rick Hasen has made an important contribution to the debate about McCutcheon by astutely identifying an issue that had gone mostly unremarked—the Court’s choice to reduce the doctrinal heft of the “appearance of corruption” in step with its narrowed view of “actual corruption.”  With the equation of “actual” corruption with quid pro quo corruption, Rick believes, the concern with appearances had to take up the slack in addressing “the public’s concern that money can skew legislative outcomes.”  Twice in his piece, Rick refers to a “stand-in” function for appearances—a role in standing in for the decimated actual corruption standard that is no longer capable of dealing with the “broader concern about undue influence.”

A few key points that emerge from a first reading of the Roberts opinion:

1.  The Standard of Review for Contribution Limitations

The Court decides not to address the question directly and so it leaves undisturbed, at least in formal terms, the different standards of review, one rigorous and one less so,  employed for "contributions" and "expenditures," respectively. At the same time, one might ask whether, in any practical application, the differences between these standards matter much at all. This is because the Court continues to insist on a very rigorous definition of the necessary government interest in regulation – actual quid pro quo corruption of candidates or its appearance – and it also rules out an expansive use of anti-circumvention theories, usually highly conceptual as in this case, as a means of satisfying the requirements that any regulation of speech be "closely drawn" to match the government's interest. There will be ample debate in the coming days about whether the Court has effectively adjusted the burden against the government in contribution cases without actually tampering with the standard of review.

Having worried about candidate fundraising for independent committees—officials were “vexed” about this prospect, the press reported—the Minnesota Campaign Finance and Public Disclosure Board appears poised to act on that worry. A new draft it will consider next week concludes that any candidate fundraising support for an independent committee is “coordination” and blocks the committee from proceeding with unlimited expenditures for the candidate.  Minn. Campaign Fin. & Pub. Disclosure Bd., Draft Advisory Op. 437 (Feb. 11, 2013).

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.