It may have been legal, or perhaps not, depending on the facts, which are so far not fully known. But the use of Twitter to feed polling information to outside groups lends itself to various conclusions about the state of campaign finance law. The content of the FEC rule against coordination can be brought into question, or its enforcement criticized, or the problem can be passed off as another instance of shenanigans by a regulated community always exploring paths around the law. Or the issue could be, more profoundly, the very conception behind the current anti-coordination rules.
To Linda Greenhouse, the Court’s decision to take up a new challenge to the Affordable Care Act is political—not Bush v. Gore all over again, but worse. While disagreeing with Bush v. Gore, she was prepared to make allowances for it: there was, she writes, at least a “plausible argument” for that case.
This is not the first time that Greenhouse has minimized the significance of Bush v. Gore. On the tenth anniversary of the decision, she referred to it “not as a travesty or tragedy, but as a bad hair day.” While taking issue with the decision, which she terms “ludicrous,” she sees it as a mishap, a bad result into which the Court simply blundered. Or just happenstance: a “bad hair day” at the Court.
If the uses of campaign finance rules to battle undue influence or its appearance will remain perpetually bogged down in disagreement – – particularly over whether the benefits of regulation justify the cost – – it does not follow that money in politics as a question for public policy has run its course. The question may have been overemphasized as one of corruption of the governmental process: corruption of the electoral process is also increasingly a concern, if less clearly and distinctly articulated. Critics of the condition of campaigns cite a range of problems with them, most recently and with rising alarm the candidates’ and parties’ loss of control to “outside groups” —Super PACs and (c) organizations—that operate under a different set of rules.
An astute piece by Mark Schmitt refocuses the argument on that point—the role of money in distorting the operation of the electoral process. He singles out for attention how a select community of donors influence the selection of candidates and the presentation of issues, raising questions of accountability and of the quality of voter engagement. This perspective has major implications for reform programs.
Commentators who don’t agree about campaign finance don’t disagree about every aspect of it. Reformers and their opponents both accept this much: that Americans distrust politicians and suspect the “undue influence” of money over their behavior. But that’s as far the shared view goes: from there, conclusions diverge. It is a remarkable fact about campaign finance—and a reason for the persistent divisions over law and policy—that general agreement on a fundamental point about money in politics can produce disagreement on the question of whether reform is needed.
- The Different Complaints about Judicial Politics
- The FEC, the Internet Squabble and the February Hearing
- Entry Points for a Conversation about Campaign Finance
- Thinking about the Paths for Campaign Finance Regulation
- Crawford and the Politics of Voter ID
- Voter ID Facts and Motivation: Easterbrook v. Posner
- The Experience with the 70’s Reforms–and What Could Come Next
- A Functioning Agency and the Sources of Dysfunction
- Of Facts and Theories in Campaign Finance Argument: The Convention Financing Matter Before the FEC
- Movement at the Federal Election Commission