In the War of FEC Commissioners, a Republican, Lee Goodman, has returned the fire of his colleague Ann Ravel and given his account of whether the agency has failed to enforce the law.  He says it's not so. Much of the time, he writes, they agree, and where they don't, the points of disagreement are focused on large issues like the definition of what constitutes a “political committee.” But he says more, giving examples of what he means, and the additional argumentation is illuminating.

Commissioner Goodman claims that in explaining deadlock, the Democratic side won’t credit their Republican colleagues with principled stands.  He cites Chair Ravel’s vote against continued enforcement of a rule governing paid Internet advertising. It is not up to a Commissioner, Goodman suggests, to use the enforcement process to score a point against a valid regulation or to pursue a respondent who has complied with it.

But he also notes another case of deadlock, which involved the enforcement of the Commission’s "candidate debate" regulations. And this example shows, and to some degree why, the Commissioners tend to fall out when it seems that unity would be within their grasp.

This is a good time for carefully researched and balanced discussions of political reform and Lee Drutman has now stepped in and done his part with an excellent book about lobbying, The Business of America is Lobbying (2015).  It is not a screed and instead looks closely at the growth and changed character of this activity within the corporate sector.  Drutman concludes with proposals for reform but only and admirably after he pares away preconceptions and identifies precisely what he believes the problem to be.

Corporate lobbying has become pervasive, Drutman claims, but he does not mean by that that it is always effective.  Huge amounts of money are spent unwisely or inefficiently and Drutman assigns some of the responsibility for the excess to the lobbyists themselves.  It is a business, after all, and those engaged in lobbying are immodest, he finds, in appraising the value of their efforts.  Their clients, relying on this appraisal, ask for more of the same, which the lobbyists are only too happy to provide.  (In fairness, lawyers should be quick to admit, lobbyists are not the only professionals convinced of their indispensability.)  So a great deal of money is spent on lobbying.

Of course not all of it is wasted.  Drutman is judicious in evaluating lobbying effects: he writes that “contrary to public opinion, politics is not a vending machine.” Id. at 23.  But in certain circumstances, depending on the salience of the issue and other factors, lobbyist can be quite effective, and the well-paid experience and savvy lobbyists are the most effective. One clear finding is that lobbyists who come out of government, spinning the revolving door as they go, can boast of a relatively impressive record of success for their clients.  Wrong to believe that all their lobbying dollars are worthwhile, the corporate employers of lobbyists are not mistaken to believe that sometimes it pays-- and they are well advised to pay-- to have the best lobbying talent on their side.

A few years ago, after the enactment of McCain Feingold, the Federal Election Commission began issuing implementing rules, and there were not well received in reform quarters.  It was objected that the agency was ignoring Congressional intent and gutting the law.  One line of attack was possible Hill intervention to disapprove the rules pursuant to the Congressional Review Act.   At a lunch with Senators to discuss this possibility, a prominent reform leader told the assembled legislators that if they did not reject the rules and hold the FEC to account, the public “would rise up” in protest. The public uprising did not occur, neither the Senate nor the House took action, and the reform critics took their cases to court—with some but not complete success.

But the hope for public pressure remains alive, and as Matea Gold reports in The Washington Post, there is some thought that with Super PACs and the like, things have gotten so out of hand that voters will insist on action.  The ranking of campaign finance among other priorities important to voters remains low, but by one reading, it is inching up the list.  Any upward movement is taken to be, maybe, a sign of more popular passion to come.  This is always the wish.  In the annals of modern campaign finance, it is never a wish come true.

But campaign finance history also shows that elected officials can be moved to take up this cause, and the same Post story that speculates about changes in public opinion records, more concretely, restiveness on the part of politicians.  And this could make a difference.  Candidates and officeholders cited in the story, such as Senator Lindsey Graham, worry about the small number of Americans—“about a 100 people”-- who can shape the course of a campaign with their money.  The issue for Senator Graham is not, apparently, the cost to political equality: it is the unfairness to candidates who find that these wealthy activists “are going to be able to advocate their cause at the expense of your cause.”

Long in the field of campaign finance, well versed in its triumphs and tribulations, Larry Noble of the Campaign Legal Center objects strongly to the suggestions for disclosure reform I co-authored with Professor Samuel Issacharoff.  It’s all a magic trick, he argues, that accomplishes the reverse of its stated intention: it moves contributions into the dark, raises the risk corruption and disregards the lessons of Watergate.  The public is not “gullible”: it won’t buy it.

It is difficult not to imagine that Mr. Noble is engaged in theater of his own, something like the aerial feat performed yesterday by the mailman in a gyrocopter who touched down on the Capitol grounds with a similarly passionate appeal for campaign finance reform.  This gentleman, undoubtedly sincere but less clearly prudent,  entitled his project “Kitty Hawk”, after the Wright Brothers’ fabled flight in North Carolina in 1903.  Larry, if he were maneuvering a craft, might have  named it “Watergate," and he would have refreshed the message by 70 years, with only another four decades to go to cross over into the current century and to the present time.

The doctrinal architecture of campaign finance is straining under the pressure of adapting to new realities. Most of the hard questioning has been expended on the faded distinction between contributions and expenditures and its relationship to free speech values.  It is all thoroughly familiar by now: the contribution which is “speech by proxy”, entitled to less protection, and the independent expenditure which is more pure speech and, while subject to disclosure requirements, cannot be put under dollar limits.  How the money is spent is the controlling inquiry: who spends it is less important, and Citizens United pushed this point harder in holding that free speech rights don't depend on the identity of the speaker.

The hole in this analysis is the absence of attention to the activity of politics—the "doing of politics.”   People who come together are doing more than speaking: they are doing politics, acting in concert to effect political goals.   This is a dimension of First Amendment jurisprudence that is normally covered in discussion of the freedom of association.  But attention to association has been fleeting, largely disappearing from Supreme Court jurisprudence, and when it reappears, it often collapses back into the free speech-centered jurisprudence that has reigned for decades now. The associational right is treated as expressive association, just the association that enables participants in group efforts to amplify their individual "views."

An account of doing politics may seem in the first instance to serve only a broadened perspective of First Amendment protections.  On this view, it is another weight placed on the scales against regulation. But it is also a way to think about what is really happening in the conduct of politics, and to relate it to the goals and limits—both the goals and limits—of regulation. And it seems especially useful now when a new Super PAC donor, one refusing to play “second fiddle,” lays claim to a commanding position in electoral politics.