Setting Goals for Political Reform

November 6, 2013
posted by Bob Bauer

Joe Nocera has put out a call for reform and opens the discussion with a few that he favors. Tying his list together is his hope to "invigorate the electorate" and encourage "more responsive, and less extreme, political candidates.” These different goals can pull in different directions. An electorate is often invigorated by negative campaigns—which is not to say that candidates have to be extreme in order to be negative, or that only negative campaigns are invigorating, but the connection is not unknown, either. And there is also nothing to suggest that extreme candidates, however Nocera defines “extreme,” are unresponsive. Many are responsive to constituents that reward them for this type of behavior.

Of the different reforms Nocera lists, two illustrate the reasons why some reform programs open with hope and end in frustration, and others might stand a chance.

Arizona and Its Conflicts Over Public Financing

October 28, 2013
posted by Bob Bauer
After one unsuccessful engagement with the Supreme Court, the State of Arizona continues to work through the implementation of its public financing laws. The issue remains, as before, how it can structure the law to draw candidates into the systems. One strategy it devised did not suit the Court: the state discovered that it could not provide offsetting public funding to participating candidates who faced well-heeled opponents and free-spending independent expenditure groups.

What to Do About the Court: Two Views

October 15, 2013
posted by Bob Bauer

A scan of recent days’ writing reveals two lines of argument about the Supreme Court’s failings in campaign finance. One holds that the Court’s understanding of politics is weak and leaves it helpless to grasp, in practical terms, the issues presented. It is suggested that Congress knows best; its members, also political candidates, are experts in the electoral process. Others argue that there is hope for the Court but it would require an improvement in the arguments it hears, and Professor Lessig and his allies continue to urge that the Justices be pressed on his “originalist” argument for an expansive view of the corruption—“dependence corruption”—that Congress should be empowered to control.

There is more to add in each instance to round out what the proponents of these points of view have chosen to offer.

As the Supreme Court decides McCutcheon, should it be looking for a middle ground? Some, like Rick Hasen, think so; others, like McMichael McGough, do not. But it is worth considering what it means for a campaign finance jurisprudence to be “moderate.”

Mr. McCutcheon—and the Parties—Before the Court

October 9, 2013
posted by Bob Bauer
The Justices yesterday pondered and puzzled over various hypotheticals about how large donations can flood into the political system. All advocates were highly able and performed well, but the discussion never came to a clear agreement about what the law would allow, or when its proper enforcement would require the Federal Election Commission to challenge underhanded activity. There was uncertainty about contribution limits and the various uses of the terms "transfers" and "contributions"; disagreement about how far the earmarking rules reached; distinctions blurred between "hard" and "soft" money; and differences over which schemes for evading the limits could be considered "realistic" predictions of political behavior. Justice Breyer offered one hypothetical and a view of the legal implications, then conceded he or his law clerk might have it wrong and would have to review the rules again.
Category: The Supreme Court