The Director of New America’s political reform program, Mark Schmitt, continues to ask for a fresh and realistic debate about campaign finance, and this is notable because his reform credentials cannot be questioned and because he states his case well and thoughtfully.  In an op-ed appearing today in The New York Times, he argues, correctly, that the reversal of Citizens United would not be as consequential as some assume. The questions about the role of money in politics would not be settled: in the cause of limiting the role of money and opening up the political process to the widest range of speech (and candidacies), the demise of CU would be a “minor step.”  He argues for the more central importance of other means of accomplishing core reform goals, such as public financing on the model of enactments in New York City and Seattle.

Schmitt does not discount effects, both direct and indirect, of CU, but he points out that it is just one of a long line of decisions limiting Congressional authority to regulate campaign finance, all the way back to Buckley.  In one way or another, the First Amendment unavoidably narrows the path reform can travel.

But this does not mean that that path is so narrow that it is for all practical purposes impassable. One of the lines of attack on CU is that it puts in doubt the constitutional support for any effective campaign finance regulation.  This critique holds that contributions limits—ordinary, regular contribution limits—may be next on the chopping block.  The McCutcheon case is then cited as evidence—at least as a signal—that the end may be near.

Of course, the more dramatic reading of CU, a turn away from Buckley, could turn out be to the case.  A Supreme Court willing to go as far as it did—and farther than it needed to –could well look for other opportunities to bring down the Buckley framework.

On this question, it has been useful to consider Judge Merrick Garland’s record on campaign finance.  He wrote for an en banc Court of Appeals in Wagner v, Federal Election Commission, 793 F.3d 1 (2015), upholding a complete ban on contributions to candidates by individual federal contractors. It is a thorough, scholarly piece of work, and the Court was united behind it.

A Brookings Institution study of state parties, authored by Ray La Raja and Jonathan Rauch, is the latest of the sober commentaries on contemporary campaign finance.  La Raja and Rauch conclude that state parties have lost significant ground to outside groups and are impeded in large part by federal regulation, mostly by McCain-Feingold, in performing critical functions. They would like to see for these state parties increased or eliminated contribution limits, deregulation to enhance their ability to coordinate with candidates and to conduct ticket-wide activities, and perhaps even public financing measures in the form of tax deductible contributions.  The strengthening of state parties, they are convinced, can promote more moderate politics; it can offset to some extent the polarizing forces unleashed by “outside groups.”

It is a thoughtful report and a contribution to the growing consensus that campaign finance laws today are unworkable and in desperate need of reform.  The question is: are state parties, for the reasons given, an appropriately special focus of reform.

As the authors note, there are other reasons for the struggles of state parties and the rise of the outside groups.  Laws and rules may add to the problem but are not its exclusive cause. Much of what La Raja and Rauch say about state parties would apply to the parties as a whole, at the national as well as the state and local level, and there are other actors within the regulated system also clamoring with justification for relief from outdated, burdensome, and pointless regulatory limits.

The case for singling out the state parties rests on La Raja and Rauch’s belief that these organizations are “important nodes of the political equivalent of civil society,” capable of creating “social capital by building connections, trust, and cooperation across diverse individuals and groups.”

This is a strong claim.

The 10th Circuit decided another disclosure case, Coalition for Secular Government v. Williams, on the mandatory reporting of “issue speech”.  It held that an individual collecting small sums to wage a campaign on ballot questions did not have to comply with registration and disclosure requirements applicable under state law to “issue committees.”  The "committee" that was really just a one-person enterprise was too "small scale,” the government's interests too limited: the cost in the particular case exceeded the benefits.

Did this result turn in any way on the nature of the advocacy – – that it was on issues, not for or against candidates?  The courts have long distinguished electoral from issue speech in determining the scope of constitutional protections.  Buckley v. Valeo, 424 U.S. 1(1976); Citizens against Rent Control v. Berkeley, 454 U.S. 290 (1981); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).  The government's interests in the case of campaign speech are more varied and include both the prevention of corruption and its appearance, and the assistance that disclosure provides to enforcement of contribution and other regulatory limits.  The 10th Circuit found those rationales “irrelevant or inapplicable to issue committees,” and while it has upheld Colorado's issue committee disclosure in principle on the strength of another interest, the voters’ informational interest, it concluded that this interest was insufficient to sustain the law as applied to the Coalition for Secular Government.

In campaign finance law, this distinction between issues and campaign speech has led reform advocates and their allies in legislatures to insist that while the difference may matter to constitutional analysis some of the time, this cannot be not the case all of the time.  They maintain that some issue speech is often campaign speech in disguise, and the Supreme Court in McConnell upheld "electioneering communication" disclosure on the basis of its finding that some issue speech was a “sham.”  Now the courts must entertain claims in as applied to cases that the plaintiffs’ issue speech is not a sham, that it is the real thing, and that it cannot be regulated as campaign finance spending.

David Frum’s thoughts about Super PACs are a useful reminder that not all the objections to these PACs are the same, not all fall within the usual range of complaints about bought-and-sold government or deepening political inequality.  Frum suggests that PACs may be victimizing donors and suffering abuse at the hands of their consultants, and that candidates, behind claims of independence, can and do disclaim all responsibility for these organizations’ behavior.  This is a set of concerns a few steps removed from the once dominant worry that these PACs would swing elections.

This perspective opens up a discussion of whether Super PACs can be brought within reasonable regulation, to deal with specific problems, without limiting the goal to the difficult and contested one of limiting independent spending.  The choice is between a hunt for anti-coordination strategies, which is essentially the hope to undo the Buckley guarantees for independent expenditures, and developing more conventional rules to account for the emergence of these PACs and the gaps in the regulatory system within which they are operating.

How did Justice Scalia come to write a dissent as he did in McIntrye, insisting on the role of disclosure and relying for the power of his point on the need to follow the judgment of legislators in protecting or enhancing the electoral process?  The question this raises is not whether Scalia was or was not a conservative on this issue, but what kind of conservative he was. As it happens, the explanation also sheds light on the recent history of campaign finance reform and the Court’s response.  The emphasis here is on “response”, for the Court—and Justice Scalia—responded to developments in the law, and in political practice, from Buckley onward, and his position may be fully understandable only within this context.

One day there may be personal papers and other accounts not available today that will fill out our understanding of Justice’s Scalia’s thinking, but in the meantime, the best sources are what he wrote and said, and most of all, what he chose to write, as Justice, in opinions, concurrences and dissents.  It has to be granted at the outset that he addressed the issue outside these opinions, and perhaps inevitably on these occasions, in interview or casual comment, he himself oversimplified.  He would say “the more speech, the better,” provided that the audience could know who was paying for it.  This would give observers reason to imagine that he was a “free speech” absolutist.

As Robert Mutch reminds us in his comprehensive history of campaign finance reform, there were such absolutists on the attack against the Watergate reforms from the very beginning. Buying the Vote: A History of Campaign Finance Reform 140-143 (2014). They gave disclosure some room, but they were otherwise firmly against the other elements of the law in place today, which means contribution as well as expenditure limits.  Mutch argues that they needed a fresh hand to play in this game, and it was constructed out of what he takes to be novel claims of “free speech”—to restrict the use of money in politics was tantamount to restricting speech.  They disdained any rationale for these restrictions, the corruption rationale as well as (and perhaps especially) another grounded in considerations of “equality.” They brought the case known as Buckley on this ground, and, the Court having split the difference—money was speech in some but not in all ways-- they were not happy with the outcome.

Early in his tenure on the Court, however, Justice Scalia declared that “Buckley should not be overruled, because it was entirely correct.” Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 683 (1990) (Scalia, J., dissenting).  He was primarily concerned to defend the “express advocacy” line that Buckley had drawn around independent expenditures, but he was satisfied that the Court had properly upheld contribution limits as measures targeted at the “plain” risk of corruption:

Certain uses of "massive wealth" in the electoral process – – whether or not the wealth is the result of "special advantages" conferred by the State – – pose a substantial risk of corruption which constitutes a compelling need for the regulation of speech. Such a risk plainly exists when the wealth is given directly to the political candidate, to be used under his direction and control.

Id. at 682.  The Justice also did not then question, nor at any time later, the value of disclosure, which the Buckley also sustained on the strength of the anti-corruption interest.  So overall, Scalia thought Buckley had gotten it right, establishing the express advocacy line which it had “set in concrete on a calm day”, Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449, 499 (2007)(Scalia, J., concurring), while allowing for limits-- but only to address the risks of corruption, not on the basis of an “equality” rationale.