How far the politician can go in accomplishing political aims, or in meeting political obligations, without being corrupt is implicated in a case like McDonnell, now to be decided by the Supreme Court.  On questions like this, there is a tendency to avoid coming to terms with the element of self-interest as a feature of a political career.

The politician who holds public office can be expected to make the most of official position to advance the prospect of reelection or advancement, and this will mean special handling of political significant matters or the interests of political supporters. The Supreme Court in Citizens United and McCutcheon has concluded that the “ingratiation and access” associated with political support are not a problem of corruption.

But the case law and commentary sometimes dress up the politics in claims about the importance of freeing politicians to have contact with voters and constituents-- to learn from them, to stay close to the people etc.  It is suggested that what is at stake is democracy.  The complexities of the political art, which include what it takes to be a successful politician, are delicately kept out out of the discussion.

The government’s brief in McDonnell acknowledges that there is some room for politicians to reward friends and refers to the common case of special access afforded political allies and supporters.  The line it draws is between this “procedural” access – – the opportunity to get the politician’s ear – – and the further step of exercising influence on the supporter’s behalf: “influence [of] the disposition of governmental matters by others.”  Brief for the United States in Opposition, Robert F. McDonnell v. United States of America, Docket No. 5-474 (U.S. 2015), at 25 n.9.

This seems like a sensible solution.  Offering an audience for a request is one thing; it is not the same as taking action, or exercising influence so that others act, to grant the request. But the application of the distinction is challenging.

Sometimes those who disagree about campaign finance are almost deliberately talking past each other, dreading any concessions because, they think, to give an inch is to surrender a mile.  This seems increasingly the case in arguments about disclosure and a good example are the opposing reactions to the Supreme Court's recent decision to decline review of California's 501(c)(3) disclosure requirements upheld by the Ninth Circuit in Center for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir. 2015).

Here is one fundamental difference: the belief on the part of decision proponents that it was a victory for campaign finance disclosure, and reply by critics that it had nothing to do with campaign finance at all.  And indeed, in technical terms, the case is not a campaign finance case – – it does not involve electoral activities, which 501(c)(3)'s may not conduct, and the information that the government is asking for is not in theory to be made available to the general public but only for the use of authorities for law enforcement.

To those who favor the State of California’s position, however, its significance goes well beyond its holding viewed in the most narrow terms.  If the case did not concern campaign finance, they seem to be saying, it was close enough: it involved a privately funded nonprofit advocacy organization, and a court willing to invalidate those disclosure rules might be tempted to export this critical attitude to the sphere of campaign finance.  There is a fear at work here that if a crack opens in disclosure requirements anywhere, they could expand to swallow up the campaign finance rules. On this theory, the court should be favorable to disclosure of political activity all kinds, to avoid damage down the line to rules of one particular kind.

The discussion of the parameters of compelled disclosure has become, in this sense, politicized.  Anxieties about the collapse of the campaign finance laws are gathering around all roughly similar disclosure requirements as a sort of last stand.  Rick Hasen has written that "campaign finance disclosure laws are under attack" and that much of the criticism has been "offered disingenuously with the intention to create a fully deregulated campaign finance system." Richard L. Hasen, Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 J.L.& Pol. 557, 559 (2012).  In his view, because the questioning of disclosure requirements is in many cases "pretextual”, id. at 559, this Court must be closely watched, because if it appears to move away from transparency in any case involving public advocacy, the end could be near. The Court could be poised to water down the disclosure commitment expressed in Citizens United.

Meanwhile, the important doctrinal question of how to measure the costs as well as the benefits of compelled disclosure is passing out of focus.  There is general acceptance that harassment is a cognizable injury threatened by disclosure of a nonprofit association's members and donors, and that in Buckley v. Valeo, 424 U.S, 1 (1976) and Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982), the Supreme Court provided a remedy through exemptions that can be granted in particular cases to endangered speakers.  But on the question of how this exemption should be structured or operate, the differences are wide.

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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As soon as the New York Times reported again this week on the concentrated wealth flowing through Super PACs, leading election law experts on the listserv began disputing what to make of the story.  Was the spending independent “speech” that the Constitution protects? Or was it no different than massive contributions not to be confused with direct speech and as such properly regulated?

The exchange over doctrine replayed familiar themes.  A key one: could the donors who have given to a Super PACs be fairly said to be engaged in their “own” speech?

Fred Wertheimer remains indignant about Citizens United and he certainly comes by this view honestly.  He has been strongly for campaign finance regulation since the 1970s and had a hand in lobbying its successful passage in the first place.  It is not surprising that he is very distressed by the watered-down definition of corruption articulated by the Court first in Citizens United and then with more clarity and emphasis in the “we-mean-what-we-said” restatement in McCutcheon.

Wertheimer says in this new piece what he has said before about “legalized bribery” being the product of the Court’s fecklessness and naiveté.  This charge is familiar, and some object that it is tired and unproductive, but Wertheimer adds to this complaint another: that the decision unleashed “political chaos”.