A scan of recent days’ writing reveals two lines of argument about the Supreme Court’s failings in campaign finance. One holds that the Court’s understanding of politics is weak and leaves it helpless to grasp, in practical terms, the issues presented. It is suggested that Congress knows best; its members, also political candidates, are experts in the electoral process. Others argue that there is hope for the Court but it would require an improvement in the arguments it hears, and Professor Lessig and his allies continue to urge that the Justices be pressed on his “originalist” argument for an expansive view of the corruption—“dependence corruption”—that Congress should be empowered to control.

There is more to add in each instance to round out what the proponents of these points of view have chosen to offer.

In the fight over contribution limits, litigants argue over how much money, given by whom and in which ways, can push normal politics into corruption or the certainty of its appearance. McCutcheon tests the proposition that corruption can be a byproduct of the total volume of giving, not just how much a donor hands over to a specific candidate or political committee. McCutcheon v. Fed. Election Comm'n, No. 12-536 (S. Ct. docketed Nov. 1, 2012). Other cases bring the courts into the dispute over the relationship between corrupt potential and the size of the contribution, the tipping point at which the sum given exceeds what it is safe to allow. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). Threading its way through these arguments is the question of whether and how the identity of donors, such as political parties, should be weighed in the bargain. See e.g. Illinois Liberty PAC v. Madigan, Case:1:12-cv-05811 (N.D. Ill.).

In a policy paper just published by the Cato Institute, John Samples takes up the constitutional amendments proposed in response to Citizens United and attempts to expose their dangers. Samples, a distinguished scholar of campaign finance, has much to offer here, regardless of where a reader stands on the feasibility of these proposals. It may be true, as Samples writes, that the constitutional amendments he criticizes “provide answers to constitutional questions, not a means for courts to reconsider those questions.” John Samples, Move to Defend: The Case against the Constitutional Amendments Seeking to Overturn Citizens United (April 2013) at 9. They do provide a means for others to reconsider those questions. And, in fact, Samples’ analysis leads him to return to first principles and to ask the question: what control should we entrust to the government in matters of campaign finance, and on what theory?