In the tributes to Justice Scalia and the immediate appraisals of his life’s work, his campaign finance jurisprudence will come up and the late Justice is described as a formidable foe of regulation.  And he certainly could be a hard-charging skeptic, a member of the majority in Citizens United and other cases that blunted the reform movement toward more regulation or undid rules already in place.  But it is not the whole story and it misses a question at the center of his jurisprudence that has yet to be clearly answered.

It is well known that Scalia at least relaxed his hostility to regulation within the distinctive domain of disclosure. He endorsed legislative discretion to impose disclosure requirements “where the idea uttered [is] in the electoral context.”  McIntyre v. Ohio Elections Commission, 514 U.S. 344, 378 (1995) (Scalia, J., dissenting).  He went still further.

To the late Justice, campaign related disclosure was a positive good, important to the protection of electoral process.  To demand public accountability of speakers was to discourage lying and to promote a “civil and dignified level of campaign debate.” Id at 387.  Disclosure requirements would temper the temptation to “mudslinging” and “character assassination,” Id. at 382, and reduce the incidence of “dirty tricks.” Id at 383. Scalia scorned the suggestion that the American experience with anonymous pamphleteering had anything to say about anonymity as a constitutional right.  The case for protecting anonymous speech could not overcome the imperative of measures “protecting and enhancing democratic elections.” Id. at 381.

Scalia made this case for mandatory disclosure on originalist grounds, but in light of his reasons for opposing other forms of regulation, the argument is intriguingly constructed. It presents a puzzle.

This is the main point urged on the reader in this paper on Super PACs: they're unlikely to disappear, because they are product of the logic of Buckley rather than a distortion of it.  Without a major change in the constitutional law, it is difficult to see how significant limits on Super PACs can be legislated or brought about by regulatory fiat.  Moreover, the “anti-coordination” rules that many are calling for would entangle and damage political organizations other than super PACs and raise legitimate, serious free speech and association issues.

At the same time, there is room for reform--some adjustment to the regulatory process--that would account for the Super PACs’ emergence and widening impact.  Transparency measures can clearly identify for the public those single-candidate Super PACs operating with the candidate’s active support and involvement.  Additional resources could be made available to other actors--parties and others--that are now more regulated than Super PACs and, and in part for that reason, steadily losing ground to them. The goal would not be a deregulated campaign finance system but one that is more rationally structured and coherent.

Rick Hasen worries that the “cure may be worse than the disease.”  He is suspicious or concerned that this is a move to restore the soft-money days that McCain-Feingold was supposed to close out.  But the proposal is not inspired by special solicitude for parties.  Parties are one of a number of electorally active organizations that would benefit from an infusion of resources but there is no case for making them the only ones.  Targeted regulatory relief should be available for other membership-based organizations, and even to candidates when conducting particular voter mobilization activities.

What Rick and others overlook, minimize, or dispute is the role of reinvigorated associational activity in enhancing political equality--in advancing the goal of "the quality of inputs" that Rick champions.  In his very good book, Plutocrats United, Rick does not grapple with the dependence of political equality on organizing and other means of building political strength on numbers, particularly among the very population of citizens he is most concerned with: those with modest resources.  As Guy-Uriel Charles has summed up the significance of association, its “main principle…is that of effective aggregation: an individual must have a reasonable opportunity to join with like-minded others for the purpose of acquiring political power.”  Guy-Uriel E. Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Cal. L. Rev. 1209, 1248-1249 (2003).

The Federal Election Commission has not solved the “Super PAC problem,” but then again the Commissioners cannot agree on what the problem is. Others outside the agency are divided in this same way. A number of questions in contemporary campaign finance are like that. Because positions are passionately held, each side is convinced that the other is not merely mistaken but dead wrong, maybe also ill-motivated. Given the chance, proponents and opponents of new rules would like to win however they can.

So there is the hope that the Supreme Court can be shifted by a vote toward a more favorable judgment on congressional power to control campaign finance. And proposals are made to strengthen the FEC for a more decisive role. The Brennan Center suggests that the FEC could make strides in the direction if it could be restructured to a) bring an element of nonpartisanship into the choice of Commissioners, by assuring that at least one is unaffiliated with a party and b) add an additional Commissioner to the total to get to an odd number and avoid deadlocks. The changes would supposedly work together to make good decisions: the odd number of Commissions guarantees decision, and the provision for nonpartisanship improves the chance that the decision will be a good one. To secure this ingredient of nonpartisanship, the Brennan Center suggests a “blue ribbon advisory panel” to recommend nominees for consideration by the President.

The goal of a decision is different from the goal of a good decision and so, in this respect, an odd number of Commissioners only gets us so far. And no one has yet defined how “blue ribbon” recommendations of Commissioners, or the requirement that one or more of them be unaffiliated with any political party, will achieve a particular reform objective.  “Nonpartisan” Commissioners will not be without opinions; they will hold views that inform their regulatory positions, just as there are independents who reliably identify with one party or the other.

One prominent scholar recently suggested on the election law listserv that the poor returns on Jeb Bush’s campaign spending tell us something about how unreliably money “talks” in elections.  Another prominent scholar replied, saying that this remark "completely missed the point” about the power of money in politics.

As the presidential election year moves along, it is natural for the debate to crank up over whether assumptions about money and politics, particularly in the era of Super PACs, have proven to be facile.  Among the various, conflicting views are those that surfaced in this list serv exchange.  The position dismissed as completely simplistic holds that money has been shown to be a weak factor in competitive elections.  The other, opposing view counters that the role of money in politics, while highly significant, has to be more discriminately analyzed, in more nuanced fashion.

The nuanced theory avoids some of the problems of overstatement but falls potentially into the risk of being both highly nuanced in its content and yet rhetorically bold in its presentation.  The argument takes various forms, but one is found in an article Rick Hasen wrote not too long ago in The Washington Post, entitled "Money Can't Buy Jeb Bush the White House, but It Still Skews Politics."  There, Hasen argues, that money is “key,” but when it is key, and how, all depends on the circumstances.  In high salience presidential campaigns its effects might be less powerful than in elections down the ballot, where interest is less intense and voters more weakly informed. Its effect, where it has one, is a “skew”, and it may be "subtler” in impact than reformers claim, but it is “equally pernicious” in advancing the interests of donor class.

There is a shift here to more careful claims about what money buys and when: that it counts for more in some races than in others; that it is not all that effective if the candidate is a “bad product”; that money’s effects are more of a “skew” than a power play; and that those effects are not always all that obvious unless you look closely.  But there is little change in the statement of campaign money’s impact: it is large, pernicious and pervasive, and it accounts for “the rise of a plutocratic class capturing private benefits for personal gain.”

Now this position may sound like the long-standing corruption argument now having to straddle the line between its empirical and moral foundations—having to concede after all this time the complexity of money’s effects while insisting that the corruption remains as bad as ever.  But Rick is not an anti-corruption theorist of the old school.  He is arguing for campaign finance regulation as an antidote to extreme political inequality, a position forcefully and skillfully laid out in his new book, Plutocrats United.

This argument based on considerations of political equality can gain force from a “skew” resulting from superior resources.  But it is not dependent on it. And it also does not require claims about the extent, significance or political bias of the “skew.”

When Margaret McIntyre's case came before the Supreme Court in 1995, she had passed away.  Her executor was determined to prevail over the state of Ohio, which had concluded that she was properly held liable, on complaint by school officials, for distributing anonymous handbills opposing a proposed school tax levy.  The Court heard the case and held for the late Mrs. McIntyre.  In a somewhat unfocused opinion, Justice Stevens found that Ohio's campaign finance disclosure requirements could not be applied to a case like hers: he noted in part that Mrs. McIntyre spent only a modest sum, out of her own pocket, and only for personal, independent speech. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).  The opinion in part relies on the long and distinguished history of anonymous pamphleteering in the United States.

So now comes along Mrs. Tammy Holland, in a remarkably similar case. In this instance, once again in conflict with a school board, Ms. Holland placed ads in a local paper calling for close examination of the qualifications of candidates standing for election or reelection to the school board.  Her interest stems from her strong opposition to Common Core, which she has expressed in part by withdrawing her son from the school system.  A school official, on his own behalf and that of the entire board, filed the complaint, alleging that her advertisements triggered campaign finance regulatory requirements she did not satisfy. The complaint alleged that she had to register as a political committee and that her ads should have carried disclaimers.

Under Colorado's campaign finance laws, the case was referred to an administrative law judge and in defending herself, Mrs. Holland wound up spending $3500 on lawyers. She was successful and sought to recover those fees.  Another school official, also a candidate for reelection, threatened her with another complaint if she did not give up her claim for the money.  She didn't and was sued again, and the regulatory wheels turned once more.