In an article just published in Atlantic, Jonathan Rauch argues that modern political reform has contributed to a disastrously weakened capacity for responsible, functional self-governance.The damage has been done to critically needed intermediary institutions, such as parties, whose effectiveness depend on allowances and practices now associated with old-style politics: less transparency in the conduct of government business, more resources for parties and their leadership, more of a role for party leaders and elites in screening candidates, and more flexibility for congressional leaders to utilize tools like "pork" to induce cohesion in the legislative ranks. The result of the change has been what he calls “chaos syndrome.”

Rauch does not claim that the reforms all without merit, or that we can or should leapfrog back to the end of the 19th or early 20th century. But, he says, by scaling back or adjusting certain of these reforms, something can be done to restore functionality to our politics—to contain the “chaos.”

Writing perceptively about this problem of reform’s “unintended consequences, ” Rauch recognizes that there are “other, larger trends” in the political culture responsible for this syndrome. For example, he cites the “politphobes” among voters who are convinced that there are clear remedies, beyond reasonable disagreement, to the nation’s ills, and that only the politicians and their political shenanigans and dark conspiracies have gotten in the way. He faults the reforms, for exacerbating this and other problems, just as he appreciates that revisions in the 1970’s reform model won’t somehow alone bring order out of the chaos.

It would be mistake, and maybe a trap, if Rauch’s analysis were taken to call only for re-evaluation of reforms already enacted. The argument taken primarily in that direction is sure to activate the same tired debates, feeding into the standard fear that politicians, "rolling back" reforms,  are taking care of themselves at everyone else’s expense. No less important is bringing Rauch’s analysis into a discussion of the proposal of new reforms.

The Supreme Court will soon decide whether to take up a major case about disclosure and this has received little attention—far less than it should. At issue is the clarification of how far government authority extends in requiring the disclosure of the financing of “issues speech”--speech or just information about candidates’ positions that does not involve engaging in advocacy of their election or defeat. There are reasons why the case might have been overlooked: it involves a small organization in a small state, and the activity concerns state and local, not federal (much less presidential), candidates. Perhaps, also, because it is “just” about disclosure, this case might be supposed to pose little danger of harm to anyone’s rights or legitimate expectations.

This is serious business. As the states move along with their own reform programs, and as litigation proceeds under different standards applied by different circuits and diminishing consistency in the treatment of federal and state or local-level enactment, disclosure doctrine is losing its coherence, and key constitutional distinctions once taken for granted are being rapidly eroded. One disturbing result: the “big” and sophisticated spenders at the federal level are more protected than the “little guy” at the levels below.

In the case in question, Delaware Strong Families v. Denn, the speech took the form of a Voter Guide that reproduced positions supplied by the candidates themselves, or in the case of candidates who declined to cooperate, their stated positions drawn from the public record. DSF is a 501(c)(3) barred from endorsing candidates, unlike an affiliated (c)(4) that may and does. There is no allegation that the (c)(3) is evading the prohibition on partisan speech. Delaware has enacted a disclosure law that applies to this Guide, requiring the disclosure of DSF donors who have given over $100 over a four- year period. The law covers all speech referring to candidates, whether by broadcast, mail or Internet, within 30 days of a primary election or 60 days of a general. It is triggered by the expenditure of more than $500 without regard to the size of the audience.

DSF sued and won in district court, then suffered a reversal of fortune in the Third Circuit Court of Appeals. The short opinion issued by the Third Circuit is striking in its breadth and, one might say, daring. It looks past the critical Buckley distinction between express and issue advocacy, apparently in the belief that, on this point, the 1976 decision has been overtaken by the decisions in McConnell and Citizens United, especially the latter, which it reads to allow for the regulation of any issues speech that could influence voter choice. So, on the assumption that its position is well supported by recent developments in the constitutional law, the Third Circuit embraced this view:

By selecting issues on which to focus, a voter guide that mentions candidates by name and is distributed close to an election is, at a minimum, issue advocacy. Thus, the disclosure requirements can properly apply to DSF’s Voter Guide…”

793 F.3d 304, 309 (July 16, 2015)

The State of Delaware has joined with reform organizations to defend this proposition. It concedes that the statute is expansive in reach, sweeping in smaller organizations and small-scale spending. But it justifies aggressive disclosure policy in a state the size of Delaware, where a little spending goes a long way. It contends that states have the right to decide how much spending is effective in the local conditions in which it occurs, taking in account the size of the electorate and other factors, and to apply disclosure requirements accordingly.   And the states can conclude that issues speech—in this case, the duplication of material the candidates supply –triggers mandatory disclosure of small donors in the interests of an informed electorate.

To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. 

Buckley v. Valeo, 424 U.S 1, 27.  

This was the magnitude of the conclusion that the Supreme Court drew about the prevalence or appearance of corruption when it upheld the contribution limitations of the Federal Election Campaign Act. The corruption problem was “not… illusory” but its scope could ‘never’ be pinned down.  The Court then cited to the decision of the court below that had offered a few example of pernicious behavior with campaign funds in the 1972 presidential election. That was enough.

In the years following, enough has not proven to be as good as a feast.  And in search of the feast, anyone with a point to make about the campaign finance laws has been pursuing conclusive data to support it.  Corruption, or the absence of corruption, or the different definitions and measures of corruption, have all occasioned argument about the evidence, as has the related but different project of proving the “appearance” of corruption.  Argument about the evidence has yet to be settled and there's every reason to believe that they never will be.

The related but still distinguishable argument about political inequality has meant the same search for clinching proof that policy follows money and makes for a “rigged” system.  This week, the Center for Competitive Politics took after a widely reported paper about the correlation between the aspirations of the wealthy and the manufacture of public policy.  Noting that Rick Hasen and Larry Lessig had made use of the paper in arguing for a political equality theory of regulation, the CCP cited to critics of the scholarship and its conclusions.  In this critical view, which CCP evidently favors, there is substantial agreement across income groups about policy.  So the study that purportedly shows that we have a democracy of the rich cannot survive close scrutiny. CCP suggests that this should bring sharply into question the “lofty solutions” of reformers.

In the last two election cycles, in both major parties, presidential candidates and the press have argued over the timeliness and completeness of the release of personal tax returns.  This year, the disagreement has taken a new turn with the possibility that one of the candidates will not release his filings at all.  Editorialists have argued for compliance with the “norm” of disclosure that has been observed for decades.  John Wonderlich of the Sunlight Foundation questions why release is just a "norm" and not a legal requirement, and he argues for a new law.

That the release of taxes remains a norm and not more may be explained by a number of factors.  For elected officials, there's always the fear that there is no stopping point.  If Congress were to mandate the release of returns by presidential candidates, the question would naturally turn back on them--why they would not put themselves under the same obligation.  Gradually other elected officials might feel the same pressure, which could eventually also influence the judgment about whether the returns provided by senior government officials during the vetting process should also be subject to public disclosure.  To keep a norm a norm is to keep the underlying transparency expectation within limits and to leave issues of compliance to public debate and judgment.  It serves also to maintain a balance between exposure of this information some of the time, in a narrow set of circumstances, but only by public expectation and political choice, preserving the overall principle of privacy.

There may still come a tipping point when the norm is deemed insufficient and a legal requirement is put in its place.  It is hard to say when that point might be reached.

Americans for Prosperity has won a decision blocking California’s demand for the disclosure of its donors.  The court didn’t agree with the State that it really needed the information to meet its regulatory responsibilities, and it was satisfied that AFP donors had reason to fear that disclosure would subject them to reprisal and harassment.  The State’s commitment to keep the information confidential did not survive the showing that it had not over time performed very well on that score.

There are concerns and conflicts running throughout this controversy, and others like it, that the court did not expressly acknowledge—but that are now common in cases of this kind.