Rick Hasen recently published an interesting article on the legal remedies for malicious lying in politics. Richard L. Hasen, A Constitutional Right to Lie in Campaigns and Elections, 74 Mont. L. Rev. 53 (Winter 2013) . He fears that “false and misleading speech may be increasing” in a “highly charged partisan atmosphere, in which each side cannot agree upon the basic facts,” and that the media, including the burgeoning fact-checking corps, “are not able to meaningfully curb candidates' lies and distortions.” Id. at 54. 55. Legal responses seem largely beyond reach, particularly after the Supreme Court’s decision in Alvarez v. United States, 132 S. Ct. 2537 (2012), which Hasen reads to indicate that “broad laws targeting false speech stand little chance of being upheld, regardless of topic.” Id. at 69.

In a policy paper just published by the Cato Institute, John Samples takes up the constitutional amendments proposed in response to Citizens United and attempts to expose their dangers. Samples, a distinguished scholar of campaign finance, has much to offer here, regardless of where a reader stands on the feasibility of these proposals. It may be true, as Samples writes, that the constitutional amendments he criticizes “provide answers to constitutional questions, not a means for courts to reconsider those questions.” John Samples, Move to Defend: The Case against the Constitutional Amendments Seeking to Overturn Citizens United (April 2013) at 9. They do provide a means for others to reconsider those questions. And, in fact, Samples’ analysis leads him to return to first principles and to ask the question: what control should we entrust to the government in matters of campaign finance, and on what theory?

This piece was co-authored with Trevor Potter and published this morning in the Washington Post:

Four decades after the campaign finance reforms that followed Watergate, arguments over the role of money in politics seem increasingly tired and unproductive. We ought to build on the experience of recent years and consider what’s necessary for a new phase of political reform.

Reforms appear destined to fail unless they rest on three key points: They should focus not on further restricting funding for political activity but rather on broadening avenues of citizen participation; they should look beyond contributions to parties and candidates to take into account other ways that money influences politics, including through the intersection of lobbying and political funding; and they should be informed by the experiences of states and localities.

Justice O'Connor, in second thoughts about Bush v. Gore, is troubled that the Court might have erred in taking the case. The objection to Bush v. Gore that she does not address is the one aimed at the outcome—that the Court's fault in injecting itself in the case is compounded by the extraordinary flaw in the decision it reached. To O'Connor, the issue seems to be one of the Court’s reputation; for many others, it is one of result, which is the true cause of the reputational harm done. Her reasoning in this instance brings to mind her expressed regrets about her vote in another elections case, Minnesota Republican Party, v. White, 536, U.S. 765 (2002), and exposes a problem in her view of the Court’s proper role in electoral disputes.

Professor Michael McConnell defends Citizens United, but it is a highly qualified defense. He is critical of the Court’s craftsmanship—the “overlong opinion” is the least of the problems, secondary in significance to a holding that ranged “beyond what the parties argued or the facts demanded,” and that has prolonged the jurisprudential agonies inflicted by the long-standing contribution/expenditure distinction. McConnell believes that the Court, relying on a rationale he views as “naïve” or “obtuse,” missed a better argument for the outcome. So much for the defense. He then proposes an alternative way of seeing—and more favorably evaluating—the decision to bless corporate independent spending.