A scan of recent days’ writing reveals two lines of argument about the Supreme Court’s failings in campaign finance. One holds that the Court’s understanding of politics is weak and leaves it helpless to grasp, in practical terms, the issues presented. It is suggested that Congress knows best; its members, also political candidates, are experts in the electoral process. Others argue that there is hope for the Court but it would require an improvement in the arguments it hears, and Professor Lessig and his allies continue to urge that the Justices be pressed on his “originalist” argument for an expansive view of the corruption—“dependence corruption”—that Congress should be empowered to control.

There is more to add in each instance to round out what the proponents of these points of view have chosen to offer.

The recent emails from the Federal Election Commission, unearthed through a Freedom of Information Act request, don't reveal much that is new about the agency or the election law bar.  That Republican or Democratic lawyers might speak an encouraging word to the Commissioners on their side of the aisle does not qualify as breaking news. Here and there is a congratulatory note, or a substantive but not case-specific comment: but that's about it. Should anyone be surprised, it would be the long-time skeptic who has imagined that the parties are weighing in on pending decisions in the dead of night. There is none of that in these disclosures.

The Campaign Legal Center has alerted its readers to a “flood” of challenges to campaign finance laws, and its message is that the reform advocates must remain at their battle stations. It is certainly true that interests hostile to any campaign finance regulation are hard at work; they might well believe that in this time, with this Supreme Court, their moment has come and no time should be wasted. But not all of these challenges are fairly lumped together and described as one indiscriminate assault against any and all reasonable regulation. A few raise questions that even those favoring reasonable limits on campaign finance should take—and address—seriously.

In the fight over contribution limits, litigants argue over how much money, given by whom and in which ways, can push normal politics into corruption or the certainty of its appearance. McCutcheon tests the proposition that corruption can be a byproduct of the total volume of giving, not just how much a donor hands over to a specific candidate or political committee. McCutcheon v. Fed. Election Comm'n, No. 12-536 (S. Ct. docketed Nov. 1, 2012). Other cases bring the courts into the dispute over the relationship between corrupt potential and the size of the contribution, the tipping point at which the sum given exceeds what it is safe to allow. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). Threading its way through these arguments is the question of whether and how the identity of donors, such as political parties, should be weighed in the bargain. See e.g. Illinois Liberty PAC v. Madigan, Case:1:12-cv-05811 (N.D. Ill.).

In his recently published criticism of Stanley Fish, Russell Jacoby returns to Fish's position (in Jacoby’s words) that “there are no abstract principles outside of society and history.” “Making It,” The New Republic (September 2, 2013 at 36). This position, Jacoby reminds the reader, accounts for Fish’s insistence “that there’s no such thing as free speech”—that speech has no worth independent of context and any value it is assigned is the outcome of a political struggle. See, e.g. Stanley Fish, There’s No Such Thing As Free Speech (1994) at 102. (“Free speech is not independent value but a political prize….”)