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:, at 27.

Is this a viable or promising reform strategy?  Recent experience suggests it is not.

Not too long ago the fifth vote miraculously materialized – – Justice O’Connor came over to the reform side in McConnell.  McCain-Feingold survived.  But the chorus of complaints about it remained loud, and the dissenters had no intention of giving up the fight.  And fight they did. The war moved with considerable success to the Federal Election Commission and the courts, and it goes on.

Reformers did not lose all the battles.  The Court has stood firmly behind the constitutionality of disclosure requirements, and it appears reluctant to revisit the soft-money restrictions on parties, or the prohibition on direct corporate contributions. The larger point is that the divisions over campaign finance will not simply disappear with a change of one vote or even two. The consequence of Rick’s reform vision is that we would be in for a long period of seesaw jurisprudence, with neither side accepting the legitimacy of the decisions decided against them, chronic conflict over the rules, and both confusion about what the law requires and inconsistencies in its application.  Along with all that will come, as always, the “unintended consequences”: the effects experienced will not be the ones hoped for or foreseen.

It is not inconceivable that one of the combatants could retain the upper hand for an extended period of time.  But how long? And in what would consist the victory that is achieved? The losing side – – whichever one it is – – will not be convinced, and it will not lose its will to resist.

On this topic – – the question of government regulation of the resources available for political advocacy and mobilization – – we can expect strong disagreement that will not be overcome by a shift of one or more votes on the Court.  But this does not mean that progressives have to give up all hope of reform.  Between the most uncompromising views either very much for, or very much against, regulation, there may well be a basis—common if not middle ground–for a discussion of what a reconstructed legal regime might look like.

We have seen a stirring of this dialogue: the list includes help to the political parties; the issues presented by candidates in their relationship to Super PACs; revised disclosures that focus reporting on consequential spending and not on small individual donations; a revamped enforcement process.  Rick may not count this as “comprehensive” reform.  But if reform in the next phase does not depend on being on the winning side of 5-4 decisions and just switching the identity of the impassioned dissenters, it may have more of a future.

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