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.

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.

As the Supreme Court decides McCutcheon, should it be looking for a middle ground? Some, like Rick Hasen, think so; others, like McMichael McGough, do not. But it is worth considering what it means for a campaign finance jurisprudence to be “moderate.”

Rick Hasen has joined others in arguing that, if in McCutcheon the Supreme Court were to strike down the aggregate limit on political contributions, the large individual donor would be able to amass undesirable influence by donating to joint fundraising committees organized by candidates and parties. The money distributed through those committees is governed by limits—$2600 per participating candidate, etc.—but when first given to the joint fundraising committee, the total donated might be massive, in the millions, and the parties and candidates who would divide it up later could be insidiously grateful to the donor.

If the aggregate limit is a means of enforcing the base limits and blocking circumvention, it raises the question: how effective does an anti-circumvention measure have to be to prevail in a test of the provision’s constitutionality? In the case of the aggregate limit, the inquiry leads quickly to a consideration of a new fact of campaign finance—the super PACs.

The recent emails from the Federal Election Commission, unearthed through a Freedom of Information Act request, don't reveal much that is new about the agency or the election law bar.  That Republican or Democratic lawyers might speak an encouraging word to the Commissioners on their side of the aisle does not qualify as breaking news. Here and there is a congratulatory note, or a substantive but not case-specific comment: but that's about it. Should anyone be surprised, it would be the long-time skeptic who has imagined that the parties are weighing in on pending decisions in the dead of night. There is none of that in these disclosures.