Back and forth go the arguments over alternatives to the current Court’s campaign finance jurisprudence.   The scholarship it produces can be interesting, and the passions behind it lively, but the question always remains whether constitutional theory can result in manageable guidance to the Court.  This key question is one that Larry Lessig and others advancing an originalist anti-corruption theory of jurisprudence have had difficulty answering.  Without this answer, their work encourages hard-core opponents of any regulation to believe, or to claim, that  the alternative to Buckley—and to the current Court’s gloss on Buckley—is effectively limitless government authority to restrict spending on politics. 

How much can a candidate do for a Super PAC without illegally “coordinating” with it? Recent proposals would answer that she has to keep her distance—no publicly (or privately) stated support and no fundraising for the independent committee. A bit of a surprise has developed in the debate. While questioning how far these restrictions can go, Rick Hasen concludes that as a matter of constitutional law, Congress may prohibit the fundraising, and on this point, he sides in theory with Brad Smith of the Center for Competitive Politics. Richard L. Hasen, Super PAC Contributions, Corruption, and the Proxy War Over Coordination, Duke Journal of Constitutional Law & Public Policy (forthcoming), 16-17, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2383452 ; Bradley A. Smith, Super PACs and the Role of “Coordination” in Campaign Finance Law, 49 Willamette L. Rev. 603, 635 (2013). Rick Hasen and Brad Smith are not often found in the same jurisprudential company.  So it is interesting to consider how they may have arrived there and why, in their judgments about the regulation Buckley would allow, they appear to have erred.

The Center for Responsive Politics and the Sunlight Foundation have teamed up to preview the consequences if the Supreme Court in McCutcheon eliminates the biennial aggregate limit. Their work is the latest of a number of analyses predicting trouble without the limit.  It is also the most recent of its kind to exhibit the flaws in these predictions—and to suggest that the real concern with McCutcheon may lie elsewhere.

Consider this program to—

RESHAPE AMERICAN POLITICS

Represent.Us is not just building a movement in support of the [American Anti-Corruption] Act, we’re going to use our collective power to stand against those who stand for corruption. If it becomes law, the Act will completely reshape American politics and policy-making and give people a voice.

This is a bold claim that the sponsors of the American Anti-Corruption Act have made. Perhaps “bold” is the wrong word; “audacious” might be more accurate. The sponsors declare that the adoption of their proposal will “completely” reshape American politics and that it will be “completely transformative” in giving the people a voice in their government.

The Supreme Court has boxed the debate over campaign finance into a corner, forcing the focus entirely on "corruption." Because corruption is the whole game, it is played with vigor, and we have seen in recent years how the term has been pulled this way or that, depending on the commenter’s policy preference.