Nate Persily has written intriguingly about the “dangers” and “opportunities” presented by the increasing prominence, and perhaps eventual dominance, of Internet platforms as outlets for paid political speech. We’re not in a television age anymore, he cautions. Now we have portals that have fundamental decisions to make about whether and how to apply policies devised for commercial speech to political communications. Those decisions concern standards of tone, fairness, accuracy and content, e.g. hate speech, but also those of transparency, such as requiring more complete disclosure than the just an organization’s name might provide of the true sources of financing for its paid ad.

The opportunity Professor Persily sees is for these Internet platforms to effect policies beyond the constitutional authority and probably the political reach of the government. The danger he points out is that private organizations may use their market power to engage in censorship practices and to do so without full transparency or accountability.

This is a timely, insightful call for attention to a transition in the political marketplace that might otherwise escape full and searching notice. A major problem is the one of trying to have it both ways. We might ask these Internet platforms to be restrained in the exercise of their power in some respects, but less in others, depending entirely on variable judgments of the worthiness of the goals. Professor Persily has suggested measures to address what he describes as “well-known pathologies of the campaign finance system.”

In 1984 there was a flap over the funding of delegates slates. The Mondale campaign, it was charged, had cheated on the campaign spending limits by putting the money into convention delegate selection. Delegate financing hasn’t been an issue since then, and it still really is not, except that it is worth noting a case recently and successfully brought to loosen the limits on delegate financing. The case, settled with the FEC, frees delegates to accept contributions from nonprofit corporations. It is a step in the right direction in making the laws more sensible, admittedly on an obscure point, but it is still better to have legal reform happen whenever possible.

The Pillar Law Institute noted that individuals can contribute without limits to delegates, to fund convention-related expenses, but corporations, including nonprofit corporations, cannot. The Institute proposed to help delegates without means to attend the Republican convention, to supply them with educational materials, and to offer them legal support pro bono if necessary to defend them against litigation threats (e.g. from Donald Trump). It sued for a declaratory judgment and injunctive relief.

Professor Erwin Chemerinsky, Dean of the UC Irvine School of Law,  has maintained a lively defense of Justice Ginsburg's comments critical of Donald Trump, writing first in the New York Times and then elaborating on his position in a Los Angeles Times op-ed and a podcast discussion with one of his faculty members, Rick Hasen. It's an interesting and instructive case about how the intensity of feelings about particular issues and candidates tends to drive views of the First Amendment and in particular of the wisdom of campaign finance restrictions. For Chemerinsky, in defending Justice Ginsburg, insists that more political speech is better than less, and he is clearly moved in saying so by what he views as the exceptional importance of the question – – the potential election of Donald Trump – – that Justice Ginsburg was addressing.

This is another application of the test of conviction on political spending issues. To what extent, when the stakes are high, will citizens and activists tolerate being told that they can’t spend however much they want, or operate as freely as they choose, in advancing public policy positions or promoting candidates?

Justice Ginsburg’s recent press comments have been noted mostly for her openly expressed disdain for the Trump candidacy. Less surprising in the remarks was the Justice’s “impossible dream” that Citizens United be overturned. She has said this before, and since she dissented in that case, there is not much news here, unless anyone still had doubts that for this Justice, the killing off of that decision is a priority.

The comment was reported at the same time as the Complaint filed with the Federal Election Commission by Representative Ted Lieu and others who intend to set into motion the reconsideration the Justice is hoping for. And so it invites an appraisal of its prospects for accomplishing the Justice Ginsburg’s “impossible dream.”

As my colleague Marc Elias has pointed out, the FEC cannot succeed; this is a lost cause. When the Complaint fails, it may do little more than unnecessarily promote the belief that CU is here to stay. It is not clear why this is the best legal maneuver, or the most effective exercise in public communications, in the attack on Speechnow and Citizens United.

Aside from the question of strategy, the Complaint itself  is a surprisingly subdued performance. It has a bit the feel of going-through-the-motions: doing the least possible to set up the agency dismissal and the move to the courts. True, the Complainants knew that the outcome at the agency was inevitable and there is time later to build their argument. But the case they preview in the Complaint seems flat and this certainly can’t help the Complainants in their subsequent appeal.

This is one view of the effects of modern political reform, and here is another, and their conclusions are, in a sense, similar: reforms have not worked as intended. But they don’t have in mind the same failures.

Robert Samuelson thinks the reforms have weakened the political system, undermining political parties and blocking other channels for constructive compromise and effective governance. Isaac Arnsdorf argues that, in the case of lobbying reform, the laws have worsened corrupt practice, not curbed it, and he is most exercised by legislators' ability to wield influence for private profit after leaving office.

The one commentator thinks we have government enfeebled by the unforeseen effects of reform; and the other sees reform to have left government more corrupt. Both analyses travel the familiar route of making a point that it invites the reader to take too far.