Justin Levitt and Brad Smith are each top-flight thinkers about campaign finance who bring very different perspectives to issues in their field. Now a Professor at Loyola, Justin’s affiliations have included the Brennan Center for Justice. Brad, a Professor at Capital University Law School, founded and chairs his own Center, (the Center of Competitive Politics) and the two Centers are not at all alike in outlook or mission. Levitt and Smith have each recently written a piece—Levitt on the contribution/expenditure doctrine, Smith on the regulation of tax-exempt organizations—that, read side by side, track major, persistent disputes in political law. Each gets much right, but then overstates his case. For Levitt, his defense of regulation comes at the price of an understanding of the political costs. Smith is highly skeptical of regulation but in a way that gives short shrift to one complex regulatory goal that will not go away—public disclosure of certain kinds, and at certain levels, of spending to influence politics or policy.

Replying to a posting here, David Gans has responded with a confident defense of the brief he co-authored on behalf of Larry Lessig in the McCutcheon case. On the question of whether the aggregate limit is a contribution or expenditure limit, he has no doubt: it is an “easy” one, he writes. But how easy is it?

What to do about super PACs? Joel Gora, no admirer of campaign finance restrictions, argues that we should defend them. Joel Gora, Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist? Brooklyn Law School, Legal Studies Paper No. 346 (2013). If they have come to typify the problems with money in politics, Gora contends, it is because we fail to appreciate their contribution to free speech, or their origins in long-standing independent expenditure jurisprudence. He adds: they didn't have the impact on the outcome that their critics widely feared. In other words, super PACs are good things, not bad things.

Rick Hasen has thoughtful advice for progressives on campaign finance reform, and it can be summed up as an exhortation to live to fight another day. He counsels against misguided gestures (constitutional amendments), empty gestures (“lip service” to reform without action) and giving up altogether and moving on to other issues. Richard L. Hasen, Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, UC Irvine School of Law Legal Studies Research Paper Series No. 2013-117 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2293979 (Forthcoming in Harvard Law & Policy Review)

There is much Hasen has offered for reflection and discussion, but there are two issues—one of diagnosis and the other of prescription—that his analysis quickly raises.

When Senator McConnell recently and aggressively needled Norm Ornstein at an AEI event, the coverage first settled on the jibe, and then, a little later, on the Senator’s denial that his position skeptical of campaign finance disclosure had changed for 25 years. All interesting or entertaining enough, but the Senator said more about his objections to campaign finance regulation—all government involvement in campaign finance, including disclosure and public financing—and it is well worth close attention.