A recent conversation with progressive scholars and activists about campaign finance reform certainly left no doubt about their widespread frustration.  The question before them is how the regulatory system’s steep fall can be broken.  Because the courts have been an obstacle for so long, and alarm is high in the aftermath of McCutcheon, one hope is that the legislature will eventually take matters in hand with more “deference” paid to their special expertise in framing rules targeted at corruption or its appearance.

In a close and insightful  reading of Chief Justice Roberts’ opinion in McCutcheon, reproduced here with his permission from the election law listserv, Marty Lederman has called attention to this first paragraph:

There is no right more basic in our democracy than the right to participate in  electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate's campaign. This case is about the last of those options.

The State of Ohio is playing for time in its defense of its “false campaign statements” statute. It wants the case now before the Supreme Court decided on ripeness, win or lose; it wants to hold off a decision on the constitutionality of its law.  Some, Rick Hasen among them, believe that this might work.  But then again, it might not, and the law could well be put out to pasture without further ado.  The petitioner has argued in clear terms that the law is unconstitutional and that, on this point, the recent decision in United States v. Alvarez is dispositive.  Petition for Writ of Certiorari at 6-7, Susan B. Anthony List v. Driehaus, 134 S.Ct. 895 (2014) (No. 13-193).  And the Court could agree, motivated as well to spare the petitioner another expensive, time-consuming tour through the courts to win the victory that it is virtually guaranteed.

Beyond the various points of disagreement between Chief Justice Roberts’ plurality opinion and Justice Breyer’s dissent in McCutcheon, there is one striking, overall contrast to be drawn. Roberts makes a clear case against the aggregate contribution limits but, as Justice Thomas suggests, he may be less straightforward in revealing his doctrinal ambitions.  Breyer’s jurisprudential orientation is no mystery, but his defense of it, in the particulars, is a puzzle.

A few key points that emerge from a first reading of the Roberts opinion:

1.  The Standard of Review for Contribution Limitations

The Court decides not to address the question directly and so it leaves undisturbed, at least in formal terms, the different standards of review, one rigorous and one less so,  employed for "contributions" and "expenditures," respectively. At the same time, one might ask whether, in any practical application, the differences between these standards matter much at all. This is because the Court continues to insist on a very rigorous definition of the necessary government interest in regulation – actual quid pro quo corruption of candidates or its appearance – and it also rules out an expansive use of anti-circumvention theories, usually highly conceptual as in this case, as a means of satisfying the requirements that any regulation of speech be "closely drawn" to match the government's interest. There will be ample debate in the coming days about whether the Court has effectively adjusted the burden against the government in contribution cases without actually tampering with the standard of review.