Larry Lessig’s campaign ran into a series of problems, the last and decisive one being his failure to qualify for inclusion in the debates. Earlier he had founded a Super PAC to establish that a well-funded campaign finance advocacy could swing an election. It did not work out as planned.  He also tried out unsuccessfully a referendum candidacy that featured a pledge that he would not serve a full term, only as long as necessary to effect his reform program, after which he would turn the reins over to his vice president.  He found that voters did not respond well to that message.

In each instance, much to his credit, Lessig explained openly the reversals he had suffered.  In the case of the debates, he blames the party debate inclusion criteria, but in the others, he confessed error or miscalculation.  He never doubted the cause, but has acknowledged the problems with his campaign.

Perhaps, however, the cause he champions, while an important part of a campaign, is not sufficient to carry it. The platform on which Lessig was running – – that campaign finance must be fixed "first", before anything else can be done – – may simply lack persuasive force. The fatal flaw revealed by each of his successive disappointments seems to have been just this single-mindedness. The super PAC was supposed to show that this issue alone was a winning issue; the referendum presidency he offered was to be so exclusively concerned with campaign finance, that the referendum president would resign his post as soon as he met with success on only that one policy initiative.

Tom Edsall’s piece on Congressional public financing proposals imparts a good sense of both their appeal and their vulnerabilities—the reasons why they have strong supporters and equally committed detractors.  Of all the points of disagreement, perhaps the simplest is the use of public money: either you believe that political reform, like any other, requires funding, or you will protest that the use of taxpayer dollars is nothing more than “welfare for politicians.”  Should the argument move from there, the competing claims about costs and benefits are notoriously hard to test, and what passes for an acceptable case depends on profound differences in political perspective.

These are the principal claims:

--less corruption: that dependence on private funding can lead to quid pro quo corruption;

--better public policy: that candidates who spent too much time fundraising develop a skewed view of public and policy    priorities--and there can be a related objective, highlighted by Edsall, that public financing schemes will result in better progressive policy, such as a higher minimum wage, stronger gun controls and the abolition of the death penalty;

--better electoral process: that ordinary citizens without wealth or high-level connections would have more of a chance to run      for office, offering more choice in candidate backgrounds, worldviews and platforms;

--better government: that candidates would spend less time on fundraising and more at their jobs;

--more political equality: that the political system would benefit overall from a more “level playing field.”

In a thoughtful article, Michael Kang of Emory has taken on the question of whether de-regulated political parties, taking in larger sums of money, can truly act as a bulwark against polarization—or only as yet another agent of the wealthy and their policy preferences.  He doubts donors would expect from parties any less responsiveness or gratitude. If the committed class of large donors is ideologically polarized, it is hard for him to see how party officials could resist its demands and retain the freedom to move party politics toward the center, closer to the ground for compromise.

This is one aspect of the normative case against party de-regulation he would put up against views presented by Rick Pildes, among others. (He has other concerns: for example, that "even if de-regulation of party campaign finance assigns the right balance of power among party actors, it neglects distributional equality concerns that were once a main focus of campaign finance policymaking."  Kang, Michael S., The Brave New World of Party Campaign Finance Law (2015). Cornell Law Review, Vol. 101, 2016; Emory Legal Studies Research Paper No. 15-365, at 57. Available at SSRN: http://ssrn.com/abstract=2674406.)

On this question of the direction into which parties would be pushed by the larger donors, Professor Kang gives a fairly straightforward picture of the donor and her motivation, and of the relationship of donor to party official.  The donors on this account will give only on conditions; the party officials, to get the money, will meet them.  The well-to-do donors do not have multiple motives: their demands, at least as the party official would interpret them, are of the “all or nothing” kind.  Is this a fully satisfactory account?

California has approved rules to better keep Super PACs in line.  The Fair Political Practices Commission has its eyes on the federal and other states’ election law controversies, noting in a press release that it is acting “on the heels of a national trend toward increased coordination between candidates and Independent Expenditure (IR) committees—a trend the FPPC seeks to stop.”  It wishes to enforce the “highest degree of separation that is constitutionally permissible “ to counter “new strategies being used by outside groups.”  Memorandum from Jack Woodside and Hyla Wagner, to Chair Remke and Commissioners, “Independent Expenditures: Adoption of Amendments to Regulation 18225.7” (October 5, 2015), at 3, 4.

The FPPC regulations already use “rebuttable presumptions” to identify the factual circumstances in which coordination is present or where there is good reason to suspect it. It has also provided for some exceptions—“safe harbors”-- for certain contacts between candidates and the IE committee.  In the revised rules approved last week, the FPPC adds to the presumptions and to the safe harbors.

As soon as the New York Times reported again this week on the concentrated wealth flowing through Super PACs, leading election law experts on the listserv began disputing what to make of the story.  Was the spending independent “speech” that the Constitution protects? Or was it no different than massive contributions not to be confused with direct speech and as such properly regulated?

The exchange over doctrine replayed familiar themes.  A key one: could the donors who have given to a Super PACs be fairly said to be engaged in their “own” speech?