October 8, 2015
posted by Bob Bauer

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”.

It’s not clear what he means by “chaos”, and carefully reading through his piece, one could pick out a number of possibilities: declining American confidence in the political process, very heavy spending, pervasive corruption.

In each instance Wertheimer seems to assume that he is stating the obvious. But, of course, the polls always reflect American dissatisfaction with (and suspicion of) the way campaigns are funded; each era of campaign finance is defined in part by claims that the quantity of money being spent is excessive; and the relationship of all the spending to “corruption” defined one way or the other has been much studied and not very clearly established.  By these measures the risks presented by Super PAC spending is not materially distinguishable from the sources of major money—such as independent expenditures, bundling, issue advertising– that came before.

What he or others may have in mind by “chaos” is a system of rules that is increasingly lacking in coherence.  In part the regulatory system in place since the 1970’s has been overwhelmed by changes in constitutional law and political practice.   Citizens United is unquestionably a major chapter in this story.  But it has been apparent for years that pressure was building on the distinction in the law between regulated “contributions” and largely unregulated “ independent expenditures”, between express advocacy and other election-influencing communications, and between the limited money that the wealthy may give directly to candidates and the prodigious and unlimited amounts they may also raise for them.

Buckley and the law operating within this jurisprudence could and did run on fumes for decades, but the problem is that they were not built to last and are now breaking down.  What appears to be “chaos” is this breakdown, once occurring more slowly, now on a brisker, highly visible pace, and there is little clarity about what new legal “order” will take its place.

It is understandable that anyone committed to the eroding regulatory regime will look for an explanation in aberrant ideology, foolishness or bad faith.  The Court is blamed,or the FEC, or the Congress, or sometimes a President.  But it is also possible, and there is every good reason to believe, that the structure established in the 1970’s is showing its age and the flaws in its design.   This can look like “chaos.”

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