Discussion of the role of politicians in the production of  campaign finance laws has produced striking differences of opinion.  George Will warns that elected officials will always serve themselves when writing the rules, and the outcome will more likely than not be unconstitutional.  But Norm Ornstein—dissatisfied with the Court’s polarized performance on campaign finance, among other issues—would prefer to see more politicians among The Nine. Off the campaign trail and on the bench, they can provide a “real world” perspective on law and politics that would make for better judicial review.

It is hard to see how far either point can be taken.  Will is right: incumbent or partisan self-interest has been a major problem with the development of the campaign finance laws.  He is correct, too, that the continuous reference to campaign finance controls as a response to “Watergate”—meant to confer nobility on recent reform undertakings—is seriously misleading.  But then what?  Elected officials do write campaign finance laws, and it is only one of any number of instances, if not the clearest one, where  political self-interest leaves its mark on legislative performance.  The task of judicial review is to take account of the dangers of self-interest while leaving adequate scope for reasonable campaign finance regulation—like disclosure.

Would this work be better done if assigned to former elected officials elevated to the Court, as Ornstein argues?  In recent years, the elected officials lionized for having a “real world” perspective on law and politics typically favored regulation of the McCain-Feingold stripe.  They produced affidavits, most often after leaving office, swearing to the corruptive effects of money.  They did not represent in any sense the larger community of elected officials on either side of the aisle, but instead were praised for breaking with their colleagues and exposing the evils of contemporary campaign finance.  Theirs was one “real world” perspective, blessed as such in media and organized reform circles in large part because it was consonant with a specific regulatory program.  Norm Ornstein presumably prefers his politicians to have this “real-world” view: the reform politician’s, and not the party politician’s, perspective.

George Will believes, gloomily, that campaign finance just cannot be entrusted to elected officials whose self-interest will always carry the day.  Norm Ornstein goes far the other way: he would have politicians write strong reforms, then join the ranks of Supreme Court Justices to review them.  But he would chose only some of these politicians: the ones with the right “real-world” perspective.

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