Arguments about transparency have become hard to follow. Government can demand an accounting of money spent to influence politics or public policy; it can certainly compel disclosure of the paid, direct lobbying of legislators. But this is among the easier cases, after which there is disagreement—and confusion—about what the government has the power to do or members of the public have the right to resist.

David Keating and Senator Durbin had just such a difference of opinion. Durbin had asked the Center for Competitive Politics and other organizations (including the Cato Institute) to state for the record whether they had funded ALEC in 2013, and whether they had supported the organization’s “stand your ground” legislation. See, e.g., Letter from Senator Richard J. Durbin to John Allison, President and CEO of the Cato Institute (August 6, 2012). Keating disputed the request’s propriety. Letter from David Keating to Senator Richard J. Durbin (September 16, 2013). To his mind, the request was an act of intimidation and an abuse of office. Any association with ALEC was for political purposes, and Durbin, no friend of ALEC, was using official letterhead and a call for information to accomplish government intimidation of a political adversary.

As the McCutcheon case nears argument, there is more discussion of the consequences if the Court strikes down the individual aggregate contribution limits. The court could certainly take the occasion to alter the basic Buckley framework and tighten the scrutiny applied to contribution limits. But another line of argument holds that the consequences would be sufficiently drastic if the limits fell but the fundamental constitutional law of the land did not change. On this view, the aggregate contribution limit would invite massive spending for the benefit of candidates that would heighten the risk of corruption.

The Campaign Legal Center has alerted its readers to a “flood” of challenges to campaign finance laws, and its message is that the reform advocates must remain at their battle stations. It is certainly true that interests hostile to any campaign finance regulation are hard at work; they might well believe that in this time, with this Supreme Court, their moment has come and no time should be wasted. But not all of these challenges are fairly lumped together and described as one indiscriminate assault against any and all reasonable regulation. A few raise questions that even those favoring reasonable limits on campaign finance should take—and address—seriously.

The District Court in New Mexico that struck down a municipal ban on corporate contributions broke away from other courts that, confronting the question, resolved it the other way under the Supreme Court’s decision in Beaumont. Giant Cab Company v. Bailey, No. 13-cv-00426 (D.N.M filed May 6, 2013); Federal Election Commission v. Beaumont, 539 U.S. 146 (2003). Rick Hasen is confident that Beaumont assures reversal if the case proceeds on appeal (which it may not). Maybe so; but the New Mexico case and perhaps others to follow put in question Beaumont as controlling authority for absolute prohibitions on corporate contributions. In the wake of Citizens United, the outcome remains unclear.

In his recently published criticism of Stanley Fish, Russell Jacoby returns to Fish's position (in Jacoby’s words) that “there are no abstract principles outside of society and history.” “Making It,” The New Republic (September 2, 2013 at 36). This position, Jacoby reminds the reader, accounts for Fish’s insistence “that there’s no such thing as free speech”—that speech has no worth independent of context and any value it is assigned is the outcome of a political struggle. See, e.g. Stanley Fish, There’s No Such Thing As Free Speech (1994) at 102. (“Free speech is not independent value but a political prize….”)