Public Citizen attempts to make the case that the Supreme Court's pending decision in McCutcheon could, if wrongly decided, unleash a flood of money with the probable effect of corrupting the political process. The argument is the one heard before in briefs and in oral argument about joint fundraising committees. A donor who gives to a joint fundraising committee can write a check for millions, to be apportioned within the limits among all the joint fundraising participants. Public Citizen warns against "naïveté": the more “practical” view it urges is that the officeholder who solicits for the joint fundraising committee risks corruptive indebtedness to the donor.

After Brad Smith of the Center for Competitive Politics took to the pages of The Wall Street Journal to criticize the IRS’s proposed rules on tax-exempt political activity, Paul Ryan of the Campaign legal Center answered in a letter to the editor. Smith had complained about an agency "power grab" cheered on by anti-speech zealots on the left. Ryan's villain was the same—the IRS—but in this instance he depicted an agency struggling to its feet after years of “derelict” failure to police special interest misuse of the law.

The Federal Election Commission has unquestionably had its full share of troubles. And on the agency’s role and performance—about which there is unceasing disagreement—certain points deserve general acceptance: that the FEC’s computers should not be hacked, its Commissioners should not act spitefully toward one another, and it should be provided a reasonable amount of money with which to carry out its functions. Dave Levinthal of the Center for Public Integrity makes just these points, among others, and so far so good; but then he presents a dubious history of the FEC that will confuse readers about the sources of its problems and the reasons why “reform” of the agency is elusive.

The following was posted on the the National Constitution Center's Constitution Daily blog at  http://blog.constitutioncenter.org/2013/11/the-mccutcheon-case-hard-money-soft-money-and-now-something-in-between/. 

Campaign finance regulation in the United States is complex, and judges have begun to complain about it. Most famously, Justice Kennedy spoke about the proliferating and abstruse rules in his opinion for the Court in Citizens United. At oral argument in a recent case, Justice Scalia suggested that no one really understood the law. The complexity of campaign finance rules is not just the handiwork of the regulators: the Court’s own doctrine can be hard to fathom. Once there was supposedly a clear distinction between “contributions” and “expenditures,” but this is no longer quite the case. And the line that once separated legal, clean “hard money” from illegal “soft money” may soon be harder to discern, after the Court has decided the pending case of McCutcheon v. Federal Election Commission.

Professor Pamela Karlan would have the Supreme Court be more attentive to the impact of its decisions on the current pathologies of American politics. She points out how cases like the one the Court will decide shortly here on recess appointments bear directly on the capacity of the government to function. See Nat'l Labor Relations Bd. v. Canning, No. 12-1281 (S. Ct. docketed Apr. 25, 2013). Then, toward the end of her piece, Karlan ties in campaign finance reform. The Court's decisions on political spending can either “lower the temperature” of contemporary politics or further inflame it. Karlan sees the court as performing poorly on this score in the past, as in Citizens United, and as poised to make the same mistake in McCutcheon v. Federal Election Commission.