Granting the differences between the two cases,  it is somewhat remarkable that a Supreme Court in a hurry to affirm corporate free speech rights in Citizens United is proceeding at a leisurely pace, in Susan B. Anthony List v. Driehaus, in adjudicating the constitutionality of Ohio’s “false campaign statement” law.  Maybe any complaint along those lines should yield to relief that the Court decided the case—a political campaign case!—unanimously.   And as Rick Hasen has pointed out, the safest bet was that the Court would do as it did, clearing the way for a pre-enforcement challenge while putting off judgment on the core constitutional issue.

First libertarian party committees, then the Republican National Committee, filed a suit last week to claim for political parties the advantages enjoyed by Super PACs. Each wishes to raise unlimited individual funds for “independent expenditures.”  The cases are a predictable consequence of Speechnow.org v. FEC: these party committees are arguing that what is good for the outside groups should be good for them, so long as they are also spending independently of their candidates.

Following this posting, Norm Ornstein tweeted a vigorous dissent, saying that I had mischaracterized his position on the value of elevating to the Supreme Court former politicians with a real world view of politics.  He does not hold that position, he writes, and I see no reason to press the point in the face of this objection.  If his position is different from the one presented in the posting, then that should be noted and acknowledged, and no more need be said about it here.

Discussion of the role of politicians in the production of  campaign finance laws has produced striking differences of opinion.  George Will warns that elected officials will always serve themselves when writing the rules, and the outcome will more likely than not be unconstitutional.  But Norm Ornstein—dissatisfied with the Court’s polarized performance on campaign finance, among other issues—would prefer to see more politicians among The Nine. Off the campaign trail and on the bench, they can provide a “real world” perspective on law and politics that would make for better judicial review.

In the growing press about polarization on the Supreme Court, campaign finance cases are cited as leading indicators and McCutcheon as a clinching bit of proof. The argument comes in two different versions. In the standard form, the Court is simply charged with dividing, routinely and reflexively, along partisan lines. A pointed variant is that the Court majority has exhibited something like fierce ideological bias, demonstrating through its campaign finance and voting rights cases that it will favor the rich donor but won’t protect the average, poor or minority voter.