The Van Hollen decision handed down yesterday, on a disclosure issue, is remarkable on a number of levels, none of which involve the precise issue before the court.  The United States Court Appeals for the District of Columia did narrow the disclosure required in connection with so-called “electioneering communications,” but as a practical matter, the damage done to transparency is probably of middling consequence.  As matters now stand, anyone wanting to spend substantial money to influence elections and keep much of it from detailed public view has a number of options.  The option that the appeals court ratified yesterday is just one, and probably not all that high on the list.

More important is the way the panel moved, to a new plane, the political case that critics of campaign finance reform have been building against disclosure.  The panel gave the Supreme Court a failing grade on its disclosure jurisprudence. It faulted the Justice for failing to weigh seriously the trade-offs between speech and disclosure, and it believes that it has launched them on an “ineluctable collision course.”  It also thinks the Court has compared constitutional apples and oranges. Speech is a right, and transparency is an “extra-constitutional value”: the appeals court panel evidently believes that, in locating the right constitutional balance, the Supreme has overvalued the extra-constitutional value.

The panel also strikes hard at the notion favoring regulation broad enough to block obvious cases of “circumvention”—cheating. On the issue before the Court, the FEC had concluded that a donation to an organization funding “electioneering ads” was reportable only if made for the precise purpose of paying for these communications. The plaintiff Van Hollen objected to the ease with which this rule can be evaded.  A donation can be made with no specific statement about its use; or maybe the trick is done with a “wink and a nod.”  Unless the regulators can implement a more sweeping requirement without attention to stated, demonstrated purpose, the statutes’ purpose can be “frustrated.”  The court is unimpressed: maybe so, it replies, but the likelihood that a rule will be ineffective is not enough to weaken the force of the constitutional concerns provoked by more muscular alternatives.

The agreement apparently reached on the omnibus omits some campaign finance related items but includes others.  The party coordinated spending limits remain in place, while there are provisions blocking IRS and SEC action in the next year to promulgate political spending disclosure rules. For reformers, the results are decidedly mixed, and they are both relieved and exasperated.  And for them and all others, there is also the question of whether this development suggests anything else about the choices faced in the reform debate.

The reform debate about the political parties is getting stuck on the question of whether, or to what extent, deregulation will improve the tone and ideological cast of national politics.  Some have argued that relieving parties of this or that restriction will alleviate pressures toward polarization and perhaps promote more centrist, moderate politics, in large measure by giving party leaders more influence.  There is some evidence for this, but it is naturally being disputed in a fight between the “purists” who resists deregulation and the “pragmatists” who favor it, and neither side to this debate is likely to score a decisive victory.  So if there can be no clear outcome, there is every reason to hope that not too much is riding on one.

When one day it has more or less run its course, the scholarship will likely show the party leaders with more money at their disposal can use it for better and for worse.  In some cases they will have the will and the means to check the extremes and expand their capacity to negotiate with opponents and move productive legislation. In others, this will not be the case.  Which of these alternative scenarios comes to pass in any state, in any time, will depend on a range of factors, including differences in states and regions and their politics, differences between the parties, the complexities of what is sometimes called the "issue environment,” and other factors.  As Lee Drutman has noted, “polarization is a function of many, many things,” and campaign finance may be only one such thing.

Before all these questions is another one: the difficulty of pinning down what one means by centrist or moderate politics, or even by a civil tone (notwithstanding some contemporary, notable examples of grotesque excess).  And another question: whether the moderate position is in all circumstances the most desirable one, if the policy described as “moderate” is just a product of splitting the difference.  The policies born of getting something done just for its own sake are not always distinguished by their effectiveness.

It is a better bet – – and a bet it is – that some of the time, empowered party leadership with stronger parties behind them can better perform their jobs. Right now they compete for their political influence with candidates who can build their own fundraising bases, and with outside groups (some of which, like Super PACs and (c) organizations, can be indistinguishable from the rest of a candidate’s, well, “support network.”).  To put parties at a disadvantage in this transformed political battlefield should require sound, well-supported policy justification.  Four years now, the justification has fallen entirely on the parties’ supposed role in fomenting corruption, the result of their (once) unique intimacy with candidates.

FEC Chair Ravel is not the first former or present Commissioner to turn to Comedy Central to lampoon her own agency.  Trevor Potter, once also a Chair, came to run a major reform organization that collaborated on bits of high comedy with Stephen Colbert. He even would emerge for his performance in a shower of dollars from something called the Mazda Scandal Booth. But he was out of the agency then and Ms. Ravel is still running it, and she decided that she had had enough of the FEC’s dysfunction and would play it for laughs. One of her colleagues was not amused.

Chair Ravel defended her appearance as free speech and as the only way now, all else having failed, to make her point. The problem for the FEC in any resort to high comedy is that the audience may misunderstand the joke. It is not a far cry from laughing at the agency to laughing at the law and concluding that politicians will never make or enforce rules against their own interest. The same ridicule can and has been directed at reform proposals.

The quips at the FEC’s expense depend on clever bits of exaggeration and oversimplification that, in the best humor, expose some measure of truth. The tricky part is keeping the exaggeration under control so that it does not overwhelm the routine and strike a false note. Does the audience come away both entertained and better informed, or at risk of being misled?

Visiting Harvard Law School, Justice Kennedy answered a question about Citizens United by saying "what happens with money in politics is not good."  And he tied certain of these unfortunate effects to that case: the "result is not happy."  Frank Wilkinson of Bloomberg News wondered if the Justice was having “second thoughts” about his campaign finance jurisprudence.

The Justice did not say clearly what about the use of money in politics is not good, or in what particular respects the results of Citizens United are not happy.  Part of the problem, he said, was disclosure, which is too slow.  With faster, Internet-speed reporting, voters could decide whether a candidate receiving certain sources and amounts of money deserve their vote.  This is as far as he would explicitly go, but there were hints of other reservations that he would still have about undoing Citizens United.

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