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.

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.

The District Court in New Mexico that struck down a municipal ban on corporate contributions broke away from other courts that, confronting the question, resolved it the other way under the Supreme Court’s decision in Beaumont. Giant Cab Company v. Bailey, No. 13-cv-00426 (D.N.M filed May 6, 2013); Federal Election Commission v. Beaumont, 539 U.S. 146 (2003). Rick Hasen is confident that Beaumont assures reversal if the case proceeds on appeal (which it may not). Maybe so; but the New Mexico case and perhaps others to follow put in question Beaumont as controlling authority for absolute prohibitions on corporate contributions. In the wake of Citizens United, the outcome remains unclear.

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.