This is an opinion piece co-authored with Sam Issacharoff,  appearing yesterday in Politico:

The money hunt for the 2016 election cycle is in full swing, and there is no surer sign of it than the first complaints recently filed by reform organizations. While, as in the past, there is intense interest in the likelihood of record-breaking sums and innovative spending strategies, this year, perhaps more than in the past, attention has turned to transparency. “Dark money” is dominating the campaign finance lexicon.

Current conversations on this topic have a Groundhog Day quality, and it seems that they are stuck between the dreary and the dreadful. Part of the problem is that nearly 40 years ago, the Supreme Court limited the objective of campaign finance regulation to the prevention of corruption or its appearance, and decades of debate ensued about what is and what is not corruption. And all this in the service of identifying when candidates and political parties come under the “undue influence” of money.

It’s time to retire the tired discourse of corruption and return to the core objective of giving voters access to relevant information. Disclosure today is best understood as a service to voters. Voters care about the “big money,” large contributions and expenditures in support of candidates. Those are the funds that most shape the issues raised and emphasized in campaigns and compel our attention.

Has the Supreme Court created an environment “pregnant with possibility of corruption?”  The Washington Post Editorial Board makes this case, building it around the rise of super PACs, and it locates the problem in the Supreme Court’s reasoning in Citizens United.  The argument does not clarify especially well the choices ahead in campaign finances, or the role of Citizens United in shaping them, or the means of grappling with bona fide corruption.  The Post’s miscue is the insistence on keeping campaign finance reform tied tightly to the corruption debate—or, more accurately, tied up with it, with nowhere to go.

The Brennan Center regularly devotes space to a review of the literature on the money-in-politics debate, and this week, Benjamin Brickner discusses an insightful paper on “coordination” by Professor Michael Gilbert of the University of Virginia and Brian Barnes, a J.D. candidate there.  The authors present the case that anti-coordination rules don’t operate to prevent corruption achieved through independent spending--and that they can’t, even if strengthened.  There are too many ways around coordination restrictions: a spender can comply with the law, spending “independently” for a candidate, but still offer the politician value that can be “cashed in” later.  If coordination rules do not deter corruption but do limit speech, then their constitutionality is thrown into question.

It is not difficult for an independent group to figure out what the politician may need and appreciate. Public sources of useful information are plentiful and these can be supplemented by private polling and other expert advice; and if there is a risk of missing the mark and timing or targeting an ad imperfectly, there remains value to be conveyed.  As Gilbert and Barnes point out, this is a question only of the efficiency of the expenditure, and some ground can be made up by just spending more money.  A politician can still be grateful for $75,000 of discounted benefit from an ad that cost $100,000.  As Gilbert and Barnes frame the point, “[U]nless the law prohibits candidates from publicizing their platforms and strategies, and outsiders from paying attention, then outsiders will always have enough information to make expenditures that convey at least some value.”

The Super PAC is the leading issue in campaign finance, and this is only superficially because it is new, exotic and, to many who write about it, alarming.  It has without question brought to head the fault line running through the contribution-expenditure distinction and expedited the obsolescence of the Buckley framework.  And it is forcing the question of whether we should be concerned in campaign finance about corruption or its appearance, or perhaps about something else.  And the answer is “something else.”

A wing of the progressive reform movement, frustrated with other strategies, is turning to the carrot and the stick.  It program is to use rewards or punishments to exact pledges or other commitments from candidates and officeholders.  It will dangle the prospect of financial support, wield the threat of denied campaign funding, and maybe mete out punishment for resistance by giving money to the opposition.  All of this is described by Derek Willis in a recent New York Times Upshot piece that notes what is long been known – – that voters do not rank campaign finance regulation high among their priorities.  Unable to rely on public opinion or pressure, these reform advocates look to cut a deal with current or prospective legislators, to make them an offer they cannot refuse.