The McCutcheon decision intensified the disagreement about when the use of money in politics is corrupt, and when it is just politics.  Chief Justice Roberts endorsed in general terms one bond that money creates—official “responsiveness” to constituents, whom he apparently took to include donors.  The Chief Justice ruled out legislative attacks on the “ingratiation” and “access” that contributions might buy.  McCutcheon v. FEC, 134 S.Ct. 1434, 1441, 1462 (2014).  Critics were appalled.  Yet, for all the excitement that followed, neither the few lines the Roberts opinion almost summarily devoted to the question nor much of the response to him helped clarify the critical issue: what is tolerable politics and what crosses the line?

In their new Brookings paper, Tom Mann and Tony Corrado wish to debunk the notion that changes in campaign finance law could temper political polarization.  They dispute the suggestion that more money to political parties would better equip party leaders to run their caucuses.  Then they turn attention to small donors and question the belief that these sources of giving, rallied by “partisan taunting and ideological appeals,” exacerbate political division.  Id. at 15.  In sum, Mann and Corrado warn against relaxing protections against big money influence.  It won’t help strengthen the parties, they say, and it is wrong to assume that a reliance on smaller donations will worsen polarization.

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.

A lot of the yelling and screaming heard about McCutcheon has recently migrated into the debate about disclosure. Charles Krauthammer has complained that the zealots have ruined disclosure as a policy option by misusing donor information to launch attacks on them. And Brad Smith took to the webpages of the Center for Competitive Politics to refute the charge that on the question of mandatory disclosure, conservatives once open to transparency had reversed course, supposedly shifting with the winds now blowing against campaign finance regulation overall.

In a close and insightful  reading of Chief Justice Roberts’ opinion in McCutcheon, reproduced here with his permission from the election law listserv, Marty Lederman has called attention to this first paragraph:

There is no right more basic in our democracy than the right to participate in  electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate's campaign. This case is about the last of those options.