Campaign finance jurisprudence is caught in the crosscurrents of formal doctrine and less clearly articulated judgments about the interests it is crafted to serve. One such judgment has to do with the “little guy”: the pamphleteer or small-scale political enterprise that raises and spends money to influence elections but whose activities have little or no corrupt potential and should not come within the regulatory grasp of the state. The Court has gone to considerable and inventive lengths to spare the little guy the dead weight of the rulebook, See, e.g. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) and FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) and it may have occasion in the near future to do more of the same. Because the doctrine is only roughly fitted to the purpose, the protection of the “little guy” has served the “big guys” well; an approach cobbled together on the fly for the smaller, more local enterprise has shielded the major political spenders.

Replying to a posting here, David Gans has responded with a confident defense of the brief he co-authored on behalf of Larry Lessig in the McCutcheon case. On the question of whether the aggregate limit is a contribution or expenditure limit, he has no doubt: it is an “easy” one, he writes. But how easy is it?

Among the briefs being filed with the Supreme Court in the pending test of aggregate contribution limits, McCutcheon v. FEC, Docket No. 12-536 (U.S. 2013), Professor Lawrence Lessig’s will draw its fair share of attention. Brief for Professor Lawrence Lessig as Amicus Curiae Supporting Appellee, McCutcheon, Docket No. 12-536. In supporting these limits, he has introduced the Court to his “dependence corruption” theory of regulation. His choice to do so, in this case and in this way, may have been unwise, because whatever may be the theory’s utility or power in other contexts, it does not show especially well in this one.

What to do about super PACs? Joel Gora, no admirer of campaign finance restrictions, argues that we should defend them. Joel Gora, Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist? Brooklyn Law School, Legal Studies Paper No. 346 (2013). If they have come to typify the problems with money in politics, Gora contends, it is because we fail to appreciate their contribution to free speech, or their origins in long-standing independent expenditure jurisprudence. He adds: they didn't have the impact on the outcome that their critics widely feared. In other words, super PACs are good things, not bad things.

Rick Hasen has thoughtful advice for progressives on campaign finance reform, and it can be summed up as an exhortation to live to fight another day. He counsels against misguided gestures (constitutional amendments), empty gestures (“lip service” to reform without action) and giving up altogether and moving on to other issues. Richard L. Hasen, Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, UC Irvine School of Law Legal Studies Research Paper Series No. 2013-117 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2293979 (Forthcoming in Harvard Law & Policy Review)

There is much Hasen has offered for reflection and discussion, but there are two issues—one of diagnosis and the other of prescription—that his analysis quickly raises.