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”.

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.

It may have been legal, or perhaps not, depending on the facts, which are so far not fully known.  But the use of  Twitter to feed polling information to outside groups lends itself to various conclusions about the state of campaign finance law.  The content of the FEC rule against coordination can be brought into question, or its enforcement criticized, or the problem can be passed off as another instance of shenanigans by a regulated community always exploring paths around the law.  Or the issue could be, more profoundly, the very conception behind the current anti-coordination rules.

If the uses of campaign finance rules to battle undue influence or its appearance will remain perpetually bogged down in disagreement – – particularly over whether the benefits of regulation justify the cost – – it does not follow that money in politics as a question for public policy has run its course. The question may have been overemphasized as one of corruption of the governmental process: corruption of the electoral process is also increasingly a concern, if less clearly and distinctly articulated. Critics of the condition of campaigns cite a range of problems with them, most recently and with rising alarm the candidates’ and parties’ loss of control to “outside groups” —Super PACs and (c) organizations—that operate under a different set of rules.

An astute piece by Mark Schmitt refocuses the argument on that point—the role of money in distorting the operation of the electoral process. He singles out for attention how a select community of donors influence the selection of candidates and the presentation of issues, raising questions of accountability and of the quality of voter engagement. This perspective has major implications for reform programs.

A solid case can be made that judges should not be picked in elections because forcing them to become candidates, and to campaign, taxes confidence in the courts. But many judges are picked by election and then the question becomes how much to bemoan, as do Rick Hasen and Dahlia Lithwick, the predictably aggressive campaigning that these candidates, their allies and their opponents may adopt to win. Campaigns are campaigns, and it is not easy to sort out which particular set of rules or standards should apply only to judicial contests. Expectations may well be different for judges, encapsulated in a sense that they should be above the political fray, but once they become candidates and are thrust into the middle of political contention, are those expectations realistic?

Another question is how many of the same critics troubled by the raw political behavior on display in judicial campaigns can maintain that position while calling attention to the “political” bias in judging. A “cataract of studies” have shown that judges’ partisan backgrounds and ideologies, among other factors, influence how they will decide issues which are standard subjects of political differences—issues like reproductive rights, or the role of markets or government, or policing methods. Eric Posner, “Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform,” 75 U. Chi. L. Rev. 853 (2008). In other words: issues that voters might care most about. And yet Hasen and Lithwick quote, critically, this passage from a judicial candidate’s appeal for votes:

I am a Republican and you should vote for me. You’re going to hear from your elected officials, and I see a lot of them in the crowd. Let me tell you something: The Ohio Supreme Court is the backstop for all those other votes you are going to cast. Whatever the governor does, whatever your state representative, your state senator does, whatever they do, we are the ones that will decide whether it is constitutional; we decide whether it’s lawful. We decide what it means, and we decide how to implement it in a given case. So, forget all those other votes if you don’t keep the Ohio Supreme Court conservative.