There are two problems, one closely related to the other, with Rick Hasen’s Supreme Court-centered analysis of how the campaign finance reforms of the 1970s have fallen on hard times. The first, discussed here, is that the Court cannot bear all of the blame. The law ran into difficulties from the beginning, and it is primarily in recent years, when problems with the law had become evident, that the Court majority has given the Watergate-era statute a hard push toward collapse. It may well be that Justices hostile to the law in principle were pleased to be presented with the opportunity to pick it apart. But there was ample opportunity.

But now, having assigned so much fault to the Court, Rick is virtually required to build a reform program around changing its composition.  Progressives have a 5-4 problem now, and all it would take to solve it is one more vote. He states his point like this:

It likely will take a progressive Supreme Court reversing Citizens United and Buckley to provide the opportunity to enact comprehensive campaign reform and then to see the effects of more than a half-hearted reform upon governance.

Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902, at 27.

Is this a viable or promising reform strategy?  Recent experience suggests it is not.

In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse.  He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful. Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902. But he also assigns the Court heavy responsibility for the state of reform.  Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.

To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart.  But an account focused on the Court skips to the middle of the story; it leaves too much out.

When Governor Scott Walker ended his Presidential candidacy, which happened after Rick Perry suspended his, commentators marveled that they could be done for and have well funded Super PAC still idling nearby.  It has been assumed that a conclusion was ready to be drawn—the more conclusive, the better.  The proposition that Super PACs rule the world has met with the objection that, no, they really don’t, not as we once thought.

Case in point: a piece in Salon, whose author, Sean Illing, wishes to show that, as the title states, Plutocrats still Reign, and that Walker’s withdrawal is no “defeat” for their Super PACs.  Very few commentators actually argued that Walker’s downfall signaled the end of plutocratic control.  If not that, then, what does the Walker’s withdrawal have to teach about the power and limits of Super PACs?

The Seventh Circuit decision in Blagojevitch is an intriguing example of judges trying to draw careful distinctions between what is criminal, and what might be acceptable, in the conduct of politicians. Their aim is to protect standard political “logrolling” from criminal prosecution. Among other counts on which he was convicted, the former Governor was charged with trading an appointment to a Senate seat for a position, for himself, in the Cabinet.   The United States threw the book at him—Hobbs Act extortion, honest services fraud, and bribery with public funds-- but where the prosecutors saw perfidy, the Court found only the ways of politics. It specifically rejected the government’s emphasis on Blagojevich’s logrolling for his own benefit—this is how the prosecution would separate political logrolling from impermissible self-interestedness, but the Court was not convinced.

The opinion is short and does not bring to the surface all of its implications. One question it explicitly left open was what in this analysis remains of 18 U.S.C. §599, which prohibits a federal candidate from promising appointments "to any public or private position or employment" in return for "support in his candidacy.” This was not an issue in the case, but the Court left no doubt that it presents a First Amendment question for another day.

A broader and difficult question is what precisely separates acceptable political “logrolling” from impermissibly personal self-dealing. There is something curious or at least not fully explained in the Court’s analysis, which treats a deal made with campaign money differently from one closed with an offer of a public position. Blagojevich was convicted of trying to sell a Senate appointment for cash but found not guilty of trading it for a government job for himself. In each case he was acting for his own political advancement and proposing to pay with an official act, but the outcome depended on whether campaign cash was thrown into the suggested bargain.

The Fourth Circuit Court of Appeals had its chance to clarify the distinction between criminal and lawful politics, and it seems to have missed it.  Among other issues, it was called on to consider the question of what constitutes an "official act.” In extensive briefing, the Court was warned that whatever one thinks of former Governor McDonnell's behavior, the jury was not properly instructed about where, in the world of politics, mutual backscratching ends, and bribery or honest services fraud begins.  The cases cited included Citizens United (along with McCutcheon v. Federal Election Commission) and their declaration that ingratiation and access are elements of ordinary political interaction, not corruption.

But the Court in McDonnell rejected the relevance of these cases.  It insisted that an official act included “customary” or “settled” practices of the widest variety that cannot be known except upon the consideration of the facts in particular cases. The Court conceded that it might not be enough for such an act to simply relate to official duties. But it did not explain the nature of the required connection. So long as the officeholder might act in a fashion that could connect in any way and at any point to official duties--to any “question, matter, cause, suit, proceeding or controversy” to come before the government--it would be sufficient to qualify as an official act on which a criminal prosecution would be based.  The connection would not have to be direct: the alleged official action could be one of a series of steps over time toward the accomplishment of the desired end.