Fred Wertheimer remains indignant about Citizens United and he certainly comes by this view honestly. He has been strongly for campaign finance regulation since the 1970s and had a hand in lobbying its successful passage in the first place. It is not surprising that he is very distressed by the watered-down definition of corruption articulated by the Court first in Citizens United and then with more clarity and emphasis in the “we-mean-what-we-said” restatement in McCutcheon.
Wertheimer says in this new piece what he has said before about “legalized bribery” being the product of the Court’s fecklessness and naiveté. This charge is familiar, and some object that it is tired and unproductive, but Wertheimer adds to this complaint another: that the decision unleashed “political chaos”.
There are two problems, one closely related to the other, with Rick Hasen’s Supreme Court-centered analysis of how the campaign finance reforms of the 1970s have fallen on hard times. The first, discussed here, is that the Court cannot bear all of the blame. The law ran into difficulties from the beginning, and it is primarily in recent years, when problems with the law had become evident, that the Court majority has given the Watergate-era statute a hard push toward collapse. It may well be that Justices hostile to the law in principle were pleased to be presented with the opportunity to pick it apart. But there was ample opportunity.
But now, having assigned so much fault to the Court, Rick is virtually required to build a reform program around changing its composition. Progressives have a 5-4 problem now, and all it would take to solve it is one more vote. He states his point like this:
It likely will take a progressive Supreme Court reversing Citizens United and Buckley to provide the opportunity to enact comprehensive campaign reform and then to see the effects of more than a half-hearted reform upon governance.Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902, at 27.
Is this a viable or promising reform strategy? Recent experience suggests it is not.
In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse. He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful. Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902. But he also assigns the Court heavy responsibility for the state of reform. Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.
To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart. But an account focused on the Court skips to the middle of the story; it leaves too much out.
When Governor Scott Walker ended his Presidential candidacy, which happened after Rick Perry suspended his, commentators marveled that they could be done for and have well funded Super PAC still idling nearby. It has been assumed that a conclusion was ready to be drawn—the more conclusive, the better. The proposition that Super PACs rule the world has met with the objection that, no, they really don’t, not as we once thought.
Case in point: a piece in Salon, whose author, Sean Illing, wishes to show that, as the title states, Plutocrats still Reign, and that Walker’s withdrawal is no “defeat” for their Super PACs. Very few commentators actually argued that Walker’s downfall signaled the end of plutocratic control. If not that, then, what does the Walker’s withdrawal have to teach about the power and limits of Super PACs?
When New York Times columnist Tom Edsall wrote recently about the winners and losers in each phase of campaign finance, he reminded readers how things have often turned out differently than predicted. Not every projection was wrong, of course: some experts were right to imagine that the parties would decline and “outside groups” would prosper after McCain-Feingold. But in the particulars, and especially after the courts began carving up the new law, the changes have included surprises, like the coming of Super PACs. Now there is an interest in adjustments to respond to the unexpected and undesirable, and the reinvigoration of political party organizations has received the most attention.
How far to go is an outstanding question among those who favor aid to parties. The Brennan Center counsels against substantial increases in contribution limits or doing away with the limits completely. Heather Gerken and Joey Fishkin concur. They worry that greatly expanded sources of private funding for parties could be a mistake, and as their writing on campaign finance is always fresh and provocative, it is well worth exploring their concerns.
- Parties and the Rethinking of Reform
- The Lessig-Mann Dust-Up
- Professor Lessig’s Conception of the “Referendum Presidency”
- The Question of Super PACs in the Post-Buckley World
- Questions of Criminal Enforcement
- The Judging of Politicians by Judges, Part II: Blagojevich in the Seventh Circuit
- Campaign Finance and Issue Advocacy: The Fight About Wisconsin
- The Judging of Politicians–By Judges
- The D.C. Circuit in Wagner: Aspects of Appearances in the Defense of The Embattled Law