California has approved rules to better keep Super PACs in line.  The Fair Political Practices Commission has its eyes on the federal and other states’ election law controversies, noting in a press release that it is acting “on the heels of a national trend toward increased coordination between candidates and Independent Expenditure (IR) committees—a trend the FPPC seeks to stop.”  It wishes to enforce the “highest degree of separation that is constitutionally permissible “ to counter “new strategies being used by outside groups.”  Memorandum from Jack Woodside and Hyla Wagner, to Chair Remke and Commissioners, “Independent Expenditures: Adoption of Amendments to Regulation 18225.7” (October 5, 2015), at 3, 4.

The FPPC regulations already use “rebuttable presumptions” to identify the factual circumstances in which coordination is present or where there is good reason to suspect it. It has also provided for some exceptions—“safe harbors”-- for certain contacts between candidates and the IE committee.  In the revised rules approved last week, the FPPC adds to the presumptions and to the safe harbors.

As soon as the New York Times reported again this week on the concentrated wealth flowing through Super PACs, leading election law experts on the listserv began disputing what to make of the story.  Was the spending independent “speech” that the Constitution protects? Or was it no different than massive contributions not to be confused with direct speech and as such properly regulated?

The exchange over doctrine replayed familiar themes.  A key one: could the donors who have given to a Super PACs be fairly said to be engaged in their “own” speech?

Fred Wertheimer remains indignant about Citizens United and he certainly comes by this view honestly.  He has been strongly for campaign finance regulation since the 1970s and had a hand in lobbying its successful passage in the first place.  It is not surprising that he is very distressed by the watered-down definition of corruption articulated by the Court first in Citizens United and then with more clarity and emphasis in the “we-mean-what-we-said” restatement in McCutcheon.

Wertheimer says in this new piece what he has said before about “legalized bribery” being the product of the Court’s fecklessness and naiveté.  This charge is familiar, and some object that it is tired and unproductive, but Wertheimer adds to this complaint another: that the decision unleashed “political chaos”.

There are two problems, one closely related to the other, with Rick Hasen’s Supreme Court-centered analysis of how the campaign finance reforms of the 1970s have fallen on hard times. The first, discussed here, is that the Court cannot bear all of the blame. The law ran into difficulties from the beginning, and it is primarily in recent years, when problems with the law had become evident, that the Court majority has given the Watergate-era statute a hard push toward collapse. It may well be that Justices hostile to the law in principle were pleased to be presented with the opportunity to pick it apart. But there was ample opportunity.

But now, having assigned so much fault to the Court, Rick is virtually required to build a reform program around changing its composition.  Progressives have a 5-4 problem now, and all it would take to solve it is one more vote. He states his point like this:

It likely will take a progressive Supreme Court reversing Citizens United and Buckley to provide the opportunity to enact comprehensive campaign reform and then to see the effects of more than a half-hearted reform upon governance.

Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902, at 27.

Is this a viable or promising reform strategy?  Recent experience suggests it is not.

When Governor Scott Walker ended his Presidential candidacy, which happened after Rick Perry suspended his, commentators marveled that they could be done for and have well funded Super PAC still idling nearby.  It has been assumed that a conclusion was ready to be drawn—the more conclusive, the better.  The proposition that Super PACs rule the world has met with the objection that, no, they really don’t, not as we once thought.

Case in point: a piece in Salon, whose author, Sean Illing, wishes to show that, as the title states, Plutocrats still Reign, and that Walker’s withdrawal is no “defeat” for their Super PACs.  Very few commentators actually argued that Walker’s downfall signaled the end of plutocratic control.  If not that, then, what does the Walker’s withdrawal have to teach about the power and limits of Super PACs?