“What is corruption, how should we define it, and why is it bad?”

This is the question put to the panel organized by Fordham Law and featuring key theorists about corruption and equality, all of them on the reform side.  It is available on video and well worth watching.  Rick Hasen has already reported that he and Larry Lessig came to a sort of detente – – coming closer, he said, “than we ever have before” on the role of money. This is an understatement.  By the time they were done, Lessig, champion of a theory of “dependence corruption”, and Hasen, vigorous exponent of a theory of political equality, agreed that they might be talking about roughly the same thing.  Somewhat more on her own was Zephyr Teachout, who argued eloquently for a morality-based view of corruption centrally concerned with shoring up civic culture.

This conference may have signaled the beginning of the end of the emphasis in leading reform scholarship on “corruption”, at least in the sense in which it has dominated the debate for decades.  The difference between Lessig’s position and Hasen’s is “semantic”, as Hasen now sees it, and Professor Lessig does not appear to disagree.  Quid pro quo corruption is not Professor Lessig’s primary concern.  In fact, he told the conference that when he meets with Members of Congress, he finds them generally to be well-motivated—good men and women, as the saying goes, caught up in a bad system.

It is understandable that supporters of redistricting reform would root hard for victory in the Supreme Court for the Arizona Independent Redistricting Commission.  Discounting the claim that there is a unique constitutional problem with the Arizona initiative--that it completely "cuts the legislature out" of redistricting--they fear a broad ruling with adverse effects beyond Arizona on various kinds of independent commissions.

But the suggestion that what is at stake is “democracy” has been pushed far.  Noah Feldman writes, for example, that initiatives constitute a crucial response to what “special interests” can do to “distort what happens in state legislatures.”  Of course, initiatives are also not free of distortions.  Success in the initiative process can go to the side with the most money; initiative campaigns do not necessarily qualify as the most informative or accurate in the presentation of their case; ballot language can be confusing to voters; and so forth.

The argument over the constitutionality of the Arizona Independent Redistricting Commission can go the way of plain language debates, and it can also branch off into the question of whether it is good to have legislators function under the threat of initiative. A fine brief filed by Professor Nate Persily, on behalf of himself and eminent political scientists Bruce Cain and Bernard Grofman, takes on that question, among others, and answers it in the affirmative.

Under their theory, legislators who know that the public might act in their place may engage in constructive defensive maneuvers: they may make more of an effort to craft a redistricting map that is fair or not lopsidedly partisan. And even if the voters take this decision out of their hands, the lawmakers will be spared the bloody battles that are singularly damaging to legislators' working relationships across-the-board.

On this view, initiatives like the one in Arizona can be defended as effective in structuring incentives for sound legislative decision-making or in protecting against the collapse of comity. But they can also draw the objection that the effect of these incentives is uncertain and that this uncertainty exacerbates constitutional concerns about the invasion of a legislature’s authority.

More balance in the public and press discussion of campaign finance issues would be desirable. This last week the FEC held a hearing, and whatever press coverage came out of it was largely devoted to belittling it.  And then there was more of the same:

Writing off the Koch announcement of massive 2016 spending, Ron Fournier urges that we be realistic about campaign finance reform in the 21st century: no limits, just instant disclosure. He seems to be salvaging what he can from the current mishmash of changes in political practices, outdated campaign finance requirements and increasingly unsparing limits on Congress's constitutional authority. Without a sharp focus on disclosure, he argues, the 2016 election will go largely dark.

Fournier’s analysis has two considerable virtues: a call for the debate to adjust to constitutional and political realities and an emphasis on single-minded priority in the reform of the law. The debate is stuck, and one reason is that a fair number of interested observers are dedicated to fighting the same arguments heard since the 1970s. A whole host of objectives are being kept artificially alive for discussion. Political spending is to be reduced and the prohibition on corporate spending restored. Independent spending is to be curtailed because some of it is suspect, gutted by disreputable, if not invariably illegal, forms of coordination. Political discourse is being poisoned by attack advertising.

And, of course, there is too much "dark money" and disclosure law should be strengthened against it. Here is where Fournier recommends that reform energy be expended.