Critics of campaign finance enforcement, or the lack of it, continue to be infuriated by the FEC’s record of deadlocks in major cases, and they are further troubled by the obstacles to judicial review.  When complainants stymied by deadlock appeal to the courts, they must still overcome the “deference” generally granted to the agency’s expertise, except where the law is clear or the agency is acting arbitrarily.  In these cases, the courts review the agency’s action by examining the stated position of the Commissioners voting against enforcement.  This is the so-called “controlling group” of Commissioners—the ones whose refusal to authorize enforcement controlled the outcome.

Both before and after the Senate Judiciary Committee’s hearing on a constitutional amendment on campaign finance, most of the press coverage understandably went to the dueling appearances of Senators Reid and McConnell. Somewhat lost were the statements delivered by Jamin Raskin and Floyd Abrams.  This is a shame. Each ably represented their opposing views, and when compared and contrasted, their statements bring out large issues in the campaign finance debate and the sources of sharp, enduring disagreement. Among those seemingly unbridgeable differences: what is “reasonable” to expect from the government in regulating political spending?

Heather Gerken writes clearly and with invigorating common sense about issues that aren't routinely given such treatment. She has set out to correct misreadings of Citizens United and she has an alternative reading of its importance. Rather than getting caught up in dreary doctrinal squabbles, she is calling for attention to the adjustments that campaign finance law and doctrine have induced political actors to make and the consequences for political institutions and the distribution of political power. Heather is progressive in her politics but refreshingly practical. In her Marquette Law lecture, she argues that by re-interpreting (or clarifying) the anti-corruption interest, Citizens United has helped move power to “shadow parties,” weakening the traditional political party and distancing the primary party actors in these shadows from the “party faithful” once relied on to press doorbells and hit the streets.

In the growing press about polarization on the Supreme Court, campaign finance cases are cited as leading indicators and McCutcheon as a clinching bit of proof. The argument comes in two different versions. In the standard form, the Court is simply charged with dividing, routinely and reflexively, along partisan lines. A pointed variant is that the Court majority has exhibited something like fierce ideological bias, demonstrating through its campaign finance and voting rights cases that it will favor the rich donor but won’t protect the average, poor or minority voter.

Justice Stevens delivered brief testimony to the Senate Rules Committee, taking no questions. Maybe no exchange with the committee members was needed: he said little that was surprising or required elaboration.  He had made public before his proposed constitutional amendment and the analysis he offered in support of it closely followed his lengthy dissent in Citizens United. As a retired justice, displaying extraordinary energy and commitment, he certainly brings attention to his cause, but he won’t convince many not already in his corner, and the weaknesses in his case will be turned against the project, whatever its merits, of moving a constitutional amendment.