Tom Edsall’s piece on Congressional public financing proposals imparts a good sense of both their appeal and their vulnerabilities—the reasons why they have strong supporters and equally committed detractors.  Of all the points of disagreement, perhaps the simplest is the use of public money: either you believe that political reform, like any other, requires funding, or you will protest that the use of taxpayer dollars is nothing more than “welfare for politicians.”  Should the argument move from there, the competing claims about costs and benefits are notoriously hard to test, and what passes for an acceptable case depends on profound differences in political perspective.

These are the principal claims:

--less corruption: that dependence on private funding can lead to quid pro quo corruption;

--better public policy: that candidates who spent too much time fundraising develop a skewed view of public and policy    priorities--and there can be a related objective, highlighted by Edsall, that public financing schemes will result in better progressive policy, such as a higher minimum wage, stronger gun controls and the abolition of the death penalty;

--better electoral process: that ordinary citizens without wealth or high-level connections would have more of a chance to run      for office, offering more choice in candidate backgrounds, worldviews and platforms;

--better government: that candidates would spend less time on fundraising and more at their jobs;

--more political equality: that the political system would benefit overall from a more “level playing field.”

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.

In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse.  He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful. 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. But he also assigns the Court heavy responsibility for the state of reform.  Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.

To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart.  But an account focused on the Court skips to the middle of the story; it leaves too much out.