The Washington Post sensibly suggests that campaign finance reform policy must be recast and that this a job for Congress. The paper’s perspective on the current state of affairs is bleak. Post editors are unhappy with the permissive rulings of the Supreme Court and about the expanded realm of what is often, usually imprecisely, referred to as "dark money." But their emphasis is on "new ways" to improve the law and its enforcement. They suggest a focus on transparency and they call on Republicans who will soon control the Congress to reconsider their reversal on disclosure policies.

In a second round, at the second level of the Chevron test, a federal district court has struck down the FEC's attempt to read a "purpose" requirement into the “electioneering disclosure” rule. Van Hollen v. Federal Election Commission, No. 11-0766 (ABJ), 2014 WL 6657240 (D.D.C. November 25, 2014). The general view is that the Court probably got this right and that to the extent that the issue has remained unresolved for this long, the FEC (once again) should take the blame. Those adopting this position point to Judge Jackson's opinion, in which she lays out in some detail the obscure route by which the FEC arrived at its position.

But, as so often, the FEC is paying handsomely for the complexity of the issue and the sins of others. A fair share of the responsibility for this disclosure controversy lies with the Supreme Court's garbled jurisprudence, which has produced confusion about the constitutionality of campaign finance requirements applied to “issues speech”.

The Commission seems to be back at it again: quarreling publicly over disclosure rules and policy applied to the Internet advertising. The Republican Commissioners are calling for a public uprising of sorts against Commissioner Ravel’s call for reconsidering those rules and policy as part of an Advanced Notice of Proposed Rulemaking. They are urging public comments—they have in mind protests—attacking tighter reporting requirements. The Internet has been provided with lenient regulatory treatment, a choice for which the Commission has been generally applauded, and the Republican Commissioners want to keep things that way. Commissioner Ravel has both moved to reopen the question and indicated her view that more regulation may be in order—that significant sums spent for political advertising on the Internet should be viewed, for disclosure purposes, as no different than broadcast, cable or satellite communications.

Those who are rooting for a Commission that works better and more collaboratively across the partisan divide have reason for concern. Only a few weeks ago, the Commissioner managed to approve rulemakings to take account of recent Supreme Court decisions. The vote was not unanimous, but a 4-2 decision was progress, and at the Commission table, there was hope expressed that the agreement reached that day marked a fresh commitment among Commissioners to explore additional areas for agreement. It would be a shame if now, in the flap over Internet regulation, the Commission quickly regressed to caustic exchange and administrative stalemate.

This is the position I submitted to the New York Times’ “Room for Debate” Forum, on the question of the state of campaign finance regulation and possible directions for its future:

 

Forty years after the passage of the federal campaign finance laws, we have considerable experience with how they work, but the debate about them has become tired and repetitive. No one is happy with the situation as it now stands: not those who worry about corruption, not those troubled by the First Amendment cost of extensive regulation, and not those who yearn to bolster public confidence in the integrity of their government. There is everywhere evidence that reconsideration and rebuilding are in order.

A lot of the yelling and screaming heard about McCutcheon has recently migrated into the debate about disclosure. Charles Krauthammer has complained that the zealots have ruined disclosure as a policy option by misusing donor information to launch attacks on them. And Brad Smith took to the webpages of the Center for Competitive Politics to refute the charge that on the question of mandatory disclosure, conservatives once open to transparency had reversed course, supposedly shifting with the winds now blowing against campaign finance regulation overall.