Heather Gerken writes clearly and with invigorating common sense about issues that aren't routinely given such treatment. She has set out to correct misreadings of Citizens United and she has an alternative reading of its importance. Rather than getting caught up in dreary doctrinal squabbles, she is calling for attention to the adjustments that campaign finance law and doctrine have induced political actors to make and the consequences for political institutions and the distribution of political power. Heather is progressive in her politics but refreshingly practical. In her Marquette Law lecture, she argues that by re-interpreting (or clarifying) the anti-corruption interest, Citizens United has helped move power to “shadow parties,” weakening the traditional political party and distancing the primary party actors in these shadows from the “party faithful” once relied on to press doorbells and hit the streets.

Discussion of the role of politicians in the production of  campaign finance laws has produced striking differences of opinion.  George Will warns that elected officials will always serve themselves when writing the rules, and the outcome will more likely than not be unconstitutional.  But Norm Ornstein—dissatisfied with the Court’s polarized performance on campaign finance, among other issues—would prefer to see more politicians among The Nine. Off the campaign trail and on the bench, they can provide a “real world” perspective on law and politics that would make for better judicial review.

At a time of intense struggle over civil enforcement of campaign finance laws, Wisconsin’s  “John Doe” case turns the discussion to the invocation of criminal law in a way not seen since the investigations of the 1996 presidential election campaign.

In the growing press about polarization on the Supreme Court, campaign finance cases are cited as leading indicators and McCutcheon as a clinching bit of proof. The argument comes in two different versions. In the standard form, the Court is simply charged with dividing, routinely and reflexively, along partisan lines. A pointed variant is that the Court majority has exhibited something like fierce ideological bias, demonstrating through its campaign finance and voting rights cases that it will favor the rich donor but won’t protect the average, poor or minority voter.

No one arguing about McCutcheon seems to question  the importance of healthy parties.  They merely disagree about what it means for parties to be healthy.  And from there, critics of the decision and of liberalized party financing move to the claim that legal restrictions on parties will strengthen them, or leave them in in no worse of a position than before. Parties are “defined down,” allowing for the anomalous conclusion that limited access to resources is the best thing for them, even if necessary to prevent their misuse to achieve corrupt purposes.  Making matters worse are unwieldy conceptions embedded in the Buckley constitutional framework that narrowly limit the ways that party activity—and spending—can be pictured.