Rick Hasen asks whether, in a recent posting, I defended the Republican National Committee and Libertarian lawsuits challenging the limits on individual contributions for political party independent expenditures. He reads the post as just such a defense, while allowing for the possibility that I may disagree. My purpose was not to defend or support the actions. It was to question how the suit has been characterized by those who are unsympathetic to his goals. So I noted that the suit does not exploit a "loophole"; it is not a "soft money" lawsuit; and the RNC has not previously made this claim.

Following this posting, Norm Ornstein tweeted a vigorous dissent, saying that I had mischaracterized his position on the value of elevating to the Supreme Court former politicians with a real world view of politics.  He does not hold that position, he writes, and I see no reason to press the point in the face of this objection.  If his position is different from the one presented in the posting, then that should be noted and acknowledged, and no more need be said about it here.

Discussion of the role of politicians in the production of  campaign finance laws has produced striking differences of opinion.  George Will warns that elected officials will always serve themselves when writing the rules, and the outcome will more likely than not be unconstitutional.  But Norm Ornstein—dissatisfied with the Court’s polarized performance on campaign finance, among other issues—would prefer to see more politicians among The Nine. Off the campaign trail and on the bench, they can provide a “real world” perspective on law and politics that would make for better judicial review.

In the growing press about polarization on the Supreme Court, campaign finance cases are cited as leading indicators and McCutcheon as a clinching bit of proof. The argument comes in two different versions. In the standard form, the Court is simply charged with dividing, routinely and reflexively, along partisan lines. A pointed variant is that the Court majority has exhibited something like fierce ideological bias, demonstrating through its campaign finance and voting rights cases that it will favor the rich donor but won’t protect the average, poor or minority voter.

Here are three recent lines of argument about campaign finance, two of them in response to McCutcheon and one of them about the escalating conflict between the FEC Commissioners.  Each is interesting in its own way; they are also constituent parts of the basic, most frequently heard defense of the Watergate-era regulatory program.