Among the briefs being filed with the Supreme Court in the pending test of aggregate contribution limits, McCutcheon v. FEC, Docket No. 12-536 (U.S. 2013), Professor Lawrence Lessig’s will draw its fair share of attention. Brief for Professor Lawrence Lessig as Amicus Curiae Supporting Appellee, McCutcheon, Docket No. 12-536. In supporting these limits, he has introduced the Court to his “dependence corruption” theory of regulation. His choice to do so, in this case and in this way, may have been unwise, because whatever may be the theory’s utility or power in other contexts, it does not show especially well in this one.

Below is the text of a speech delivered this month to the American Constitution Chapter of Duke University Law School.

The Supreme Court has taken yet another case testing the McCain-Feingold campaign finance reforms, and informed observers anticipate another defeat for the 2002 law. But it could be more consequential than just one more loss in the war against soft money. The case, McCutcheon, is a case involving “hard money” contribution limits which, it has been assumed to this point, Congress possesses wide authority to impose and enforce.

This is the great divide established by Buckley v. Valeo, the one that separates “contributions” from “expenditures” on the theory that restrictions on contributions to candidates pose less of a threat to speech than those applied to expenditures that travel from the wallet of the spender directly to the airwaves or into the mailbox. One is taken to be a weaker form of expression than the other and entitled to less protection.

Such is the standing framework within which the constitutional issues affecting campaign finance are judged: one form of speech or the other, each weighed differently on the First Amendment scale. And trailing along behind them is the right to association, a distant third, and really an echo of the first two, as the associational interest here is typically treated as “expressive” in nature.

As someone who has long represented political actors—counseling on various forms of political action—I detect a problem here, which I would like to explore. It is the problem of refusing independent recognition, a weight all of its own, to political action—the business of building coalitions and acting in concert with allies to achieve political goals. The challenge is to distinguish political action from pure speech and locate a constitutional interest in what I will call here “doing politics.”

The distinction between contributions and expenditures—the first enjoying less constitutional protection than the latter—keeps its hold on campaign finance jurisprudence, for better or worse. Citizens United shows that the difference carries considerable continuing clout on major issues. It does supply courts with a familiar analytical tool that they can use to dispose, often simplistically, of complicated issues. For example, the Colorado Republican cases raise important questions about party activity, especially the relationship between candidates and their parties. By turning to the storied contribution/expenditure analysis, the Courts could dodge the hard issues and decide the case. What this analysis yielded was odd, however. Suddenly parties could spend money freely if “independently” on behalf of their candidates, while their routine support of the same candidates, in day to day contact with them, were effectively “contributions” and limited in amount.

The McCutcheon case (McCutcheon v. Fed. Election Comm'n, No. 12-536 (S. Ct. docketed Nov. 1, 2012)), testing the aggregate biennial contribution limits, is another example of a perplexing nature of the contribution/expenditure distinction.