Professor Pamela Karlan would have the Supreme Court be more attentive to the impact of its decisions on the current pathologies of American politics. She points out how cases like the one the Court will decide shortly here on recess appointments bear directly on the capacity of the government to function. See Nat’l Labor Relations Bd. v. Canning, No. 12-1281 (S. Ct. docketed Apr. 25, 2013). Then, toward the end of her piece, Karlan ties in campaign finance reform. The Court’s decisions on political spending can either “lower the temperature” of contemporary politics or further inflame it. Karlan sees the court as performing poorly on this score in the past, as in Citizens United, and as poised to make the same mistake in McCutcheon v. Federal Election Commission.

This raises again the question of whether campaign finance rules constrain or, by their absence or inadequacy, feed negative politics. McCain-Feingold was enacted in part on the assumption that the rules can soften the hard edges of political speech. Two measures were devised to deal with it. One, a limit on corporate and union “issue” advertising, was designed for multiple purposes, but containing attack ads was one. It has come apart under the weight of recent Court decisions. One other provision—the “stand by your ad” provision—was meant to hold candidates accountable for their attacks and induce restraint; and it still stands, but only as an exercise in legislative futility. Karlan is worried about what more the Court will do, or fail to do, to make matters worse. And because of McCain-Feingold’s rough treatment at the Court’s hands, Karlan could reasonably believe that the law was denied the chance to work.

It can be just as reasonably and perhaps more logically believed that advertising reflects a polarized politics but does not cause it. In evaluating the arguments a about “negativity” seven years ago, John Greer suggested just this: “as disagreement between the parties increases, so will attacks.” John Greer, In Defense of Negativity 152 (2006). Campaign finance rules may redirect the channels through which negative attacks are funded—from the independent expenditure campaigns of the 1980’s, through the party soft money issue advertising of the 1990’s, to the 527 activity of the first decade of this century, to the super PAC era today. Campaign finance rules influence the means of expression; there is little evidence that they shape their content.

Of course, restrictive campaign finance rules could raise the cost of different forms of independent, “shadowy” negative campaigning, making it harder to finance efficiently and maybe even (though not certainly) diminishing its volume. So Karlan is right that the actions of the Court are not without effect on electoral activity. But it would be a controversial aim of jurisprudence to impede political spending in the belief that the speech it funds is unhealthy, and especially open to question if the targeted speech is the symptom and not cause of the identified disorder—in this case, a polarized politics.

The Court is often criticized for straying into political judgments it is not equipped to make. This is one judgment—how to “lower the temperature” of contemporary politics through campaign finance jurisprudence—that the Justices would do well to forego.

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