George Will has written about the problems that state campaign finance laws present for little people—“small groups and individuals” going about their business and discovering when they dip their toes into political waters that those waters can be treacherous. See Justice v. Hosemann, No. 3:11-CV-138-SA-SAA (N.D. Miss. filed Sept. 30, 2013); see also Galassini v. Town of Fountain Hills, No. CV-11-02097 (D. Ariz. Sept. 30, 2013) at 1 (involving the “rights of an ordinary citizen [to] organize a protest”). The few hundred dollars these individuals and groups raise to express an opinion about a ballot initiative can subject them to a registration and reporting statute. They may find that they must put off their political project until they have complied with a law about which, only a short time before, they knew nothing. Some imagine, rightly or wrongly, that a lawyer has to be called, and eventually the call goes out—for a lawsuit. Will blames the errant course of the law on the insatiable appetite of “liberals” for “the regulatory state.”

But it is not certain that “liberals” or “progressives” who support reasonable campaign finance regulation would all applaud the results in these cases. They might well agree that there is a problem, one that arises from certain theories of enforcement and their application, not from core progressive commitments.

As the Supreme Court decides McCutcheon, should it be looking for a middle ground? Some, like Rick Hasen, think so; others, like McMichael McGough, do not. But it is worth considering what it means for a campaign finance jurisprudence to be “moderate.”

It is assumed that if the Court in McCutcheon revises the standard of review for contributions, it will do so to overthrow Buckley and to bring the standards for contributions and expenditures into alignment. Certainly this is a possibility, and it is the outcome being urged by Senator McConnell and dreaded by prominent voices in the reform community.

Of course, the Court has other choices. Depending how it goes about the task, the Court could improve on the Buckley jurisprudence without destroying altogether the contribution/expenditure distinction. The Court’s treatment of contributions and expenditures does not have to be same in order for the approach to contributions to be better—more rigorous in construction and more convincing in application—than it is today.

Rick Hasen has joined others in arguing that, if in McCutcheon the Supreme Court were to strike down the aggregate limit on political contributions, the large individual donor would be able to amass undesirable influence by donating to joint fundraising committees organized by candidates and parties. The money distributed through those committees is governed by limits—$2600 per participating candidate, etc.—but when first given to the joint fundraising committee, the total donated might be massive, in the millions, and the parties and candidates who would divide it up later could be insidiously grateful to the donor.

If the aggregate limit is a means of enforcing the base limits and blocking circumvention, it raises the question: how effective does an anti-circumvention measure have to be to prevail in a test of the provision’s constitutionality? In the case of the aggregate limit, the inquiry leads quickly to a consideration of a new fact of campaign finance—the super PACs.

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.