In a thoughtful article, Michael Kang of Emory has taken on the question of whether de-regulated political parties, taking in larger sums of money, can truly act as a bulwark against polarization—or only as yet another agent of the wealthy and their policy preferences.  He doubts donors would expect from parties any less responsiveness or gratitude. If the committed class of large donors is ideologically polarized, it is hard for him to see how party officials could resist its demands and retain the freedom to move party politics toward the center, closer to the ground for compromise.

This is one aspect of the normative case against party de-regulation he would put up against views presented by Rick Pildes, among others. (He has other concerns: for example, that "even if de-regulation of party campaign finance assigns the right balance of power among party actors, it neglects distributional equality concerns that were once a main focus of campaign finance policymaking."  Kang, Michael S., The Brave New World of Party Campaign Finance Law (2015). Cornell Law Review, Vol. 101, 2016; Emory Legal Studies Research Paper No. 15-365, at 57. Available at SSRN: http://ssrn.com/abstract=2674406.)

On this question of the direction into which parties would be pushed by the larger donors, Professor Kang gives a fairly straightforward picture of the donor and her motivation, and of the relationship of donor to party official.  The donors on this account will give only on conditions; the party officials, to get the money, will meet them.  The well-to-do donors do not have multiple motives: their demands, at least as the party official would interpret them, are of the “all or nothing” kind.  Is this a fully satisfactory account?

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?

The court’s worst blunder, she said, was its 2010 decision in Citizens United "because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”

This is what Justice Ginsburg has said, but is not clear without a bit of guesswork which she means.  But it seems to be about “what has happened to elections", including cost, and not so much how the conduct of elections translates into bad or corrupt government.  One cannot read too much into it: the comment is short, but her few words describe a problem with the electoral process.

Distortion of that process, or the interference with its ideal functioning, is a major worry for those observing money in politics, separate from any consequences for the integrity of government that the politicians, once elected, are responsible for running. This electoral corruption of elections is different from the quid pro quo corruption of government that animates the strictly constitutional and legal debate.

In Friday’s New York Times, Stuart Stevens refers to just the electoral impacts of campaign finance when discussing the effects of Super PACs in altering the character of Presidential primary competition.  A number of the now 17 candidates entering the Republican Presidential primary have jumped in with the confidence that, with a Super PAC at their side, they have the resources to hang in there for a spell. Doing well in the first primaries is no long an invariable condition of viability.  Stevens is not all that worried about it: he likes the free-for-all.  Others are less sure.

These understandings of “corruption” can be, and often are, conflated, but are very different.  The case against Super PACs as agents for electoral corruption is straightforward: a handful of individuals can float a candidacy lacking in more general public support and keep it artificially alive.  The costs increase for other candidates; debate stages are crowded with contenders who are not truly viable over the long-term; and the mechanism by which public preference is measured is skewed.

Perhaps for this reason, it goes unnoticed that arguments directly related to government corruption—and proposals for reform based on them—seem, by contrast, increasingly clouded and tenuous.

In the wake of the Wisconsin case, and in the arguments more generally about “’coordination,” it has been suggested that not too much should be made of the dangers of criminal investigation in campaign finance cases.  Hard-charging investigative techniques employed in the service of creative theories of liability are staples of white-collar criminal enforcement.  Why, critics such as Rick Hasen ask, should campaign finance law enforcement be different?

The question of whether criminal campaign finance investigations are just like any other is worth careful consideration, detached from a lively, high-stakes conflict like Wisconsin’s.  The federal experience is instructive.

The Wisconsin Supreme Court was badly divided on the “coordination” question that it resolved in favor ending an ongoing criminal investigation.  The majority and dissents expressed their disagreement in harsh terms, and there was a similar outbreak of ill-will or impatience among experts and seasoned observers trading views on the election law list serv.  Dividing the camps for the sake of convenience into progressives and conservatives: the former were appalled by the case and the latter overjoyed, and neither could believe how the other was reacting.  The case was either a nightmare for desperately needed reform, or a vindication of the rule of law in a struggle with political persecution and police state tactics.

But are the issues being fairly brought out amid all this vitriol, and is it necessarily true that the opinions on the coordination issues in Wisconsin must always and inevitably fall out along ideological and party lines?