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.

George Will looks at Super PACs and sees the consequences of "reform": it's a mess, he writes, the result of pressures for a “thoroughly regulated politics” that drives political actors to evade foolish rules.  The Constitution requires “unregulated politics”: recent reform experience shows that any other course is sure to end in a bad place.  The choice he sees is between thoroughly regulated campaign finance, which is untenable, or none at all.

An alternative account of unsatisfactory reform experience would focus on the type of regulatory program that has dominated the policy debate.  The FEC is somehow expected to regulate campaign finance as other agencies regulate food or drugs, or fair commercial practice, and the FEC best equipped for the job would be re-structured to take the politics out of its composition and operation.  Underlying all of this is a belief that the right rules enforced by the right people, and repeatedly revised in the light of experience, will bring errant political behavior under control and end cheating.  By this definition the “right” rule is one that attacks a questionable practice at its source, however complicated the rule and however challenging it will be to enforce it.

Lawrence Tribe and Floyd Abrams have each spoken or written recently about Citizens United, and their views, while not the same, suggest a continuing movement toward appraisals that are balanced between full embrace and outright condemnation. And, as Professor Tribe suggests, a measured judgment of the Court’ performance in that case helps with the re-orientation of the campaign finance debate that is long overdue.

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.

Rick Hasen asks whether, in a recent posting, I defended the Republican National Committee and Libertarian lawsuits challenging the limits on individual contributions for political party independent expenditures. He reads the post as just such a defense, while allowing for the possibility that I may disagree. My purpose was not to defend or support the actions. It was to question how the suit has been characterized by those who are unsympathetic to his goals. So I noted that the suit does not exploit a "loophole"; it is not a "soft money" lawsuit; and the RNC has not previously made this claim.