When the Supreme Court took up the McCutcheon case, and again when it was decided, commentators suggested that the Court might be poised to reconsider the constitutional foundations of contribution regulation. The Justices had done what they needed to do to expand and solidify the right to independent spending; now they would turn their attention, in the same deregulatory spirit, to contribution limits, perhaps laying the foundation for invalidating them. McCutcheon does not by its terms really justify this fear. It did direct attention to the question of how—and not whether—contributions are regulated. And other cases percolating in the court system have begun to confront those questions.

The views of the Perry prosecution have sorted out quickly into a majority sharply questioning its merit, and a minority insisting that judgment be reserved until the facts are known.  The prosecutor has not been heard from, other than via a two-page indictment short on detail and his avowal that the case involved a non-partisan application of the law to the facts.

The McCutcheon decision intensified the disagreement about when the use of money in politics is corrupt, and when it is just politics.  Chief Justice Roberts endorsed in general terms one bond that money creates—official “responsiveness” to constituents, whom he apparently took to include donors.  The Chief Justice ruled out legislative attacks on the “ingratiation” and “access” that contributions might buy.  McCutcheon v. FEC, 134 S.Ct. 1434, 1441, 1462 (2014).  Critics were appalled.  Yet, for all the excitement that followed, neither the few lines the Roberts opinion almost summarily devoted to the question nor much of the response to him helped clarify the critical issue: what is tolerable politics and what crosses the line?

Following this posting, Norm Ornstein tweeted a vigorous dissent, saying that I had mischaracterized his position on the value of elevating to the Supreme Court former politicians with a real world view of politics.  He does not hold that position, he writes, and I see no reason to press the point in the face of this objection.  If his position is different from the one presented in the posting, then that should be noted and acknowledged, and no more need be said about it here.

Of the several constitutional amendments favored by Justice Stevens, the one dealing with campaign finance reform strikes Cass Sunstein as “the strongest.” Cass Sunstein, The Refounding Father, N.Y. Review of Books Vol. LXI, No. 10 (June 5, 2014) at 10.  He argues that without controls on political spending, income inequality will beget political inequality.  Especially because we are prepared to accept vast inequality in the economic sphere, we cannot tolerate it in our politics. To the extent that we might worry about incumbent entrenchment if politicians are empowered to set the rules of the game, we should take comfort that the workings of the political process—“democratic debate”—will supply the necessary safeguards.