In a second round, at the second level of the Chevron test, a federal district court has struck down the FEC's attempt to read a "purpose" requirement into the “electioneering disclosure” rule. Van Hollen v. Federal Election Commission, No. 11-0766 (ABJ), 2014 WL 6657240 (D.D.C. November 25, 2014). The general view is that the Court probably got this right and that to the extent that the issue has remained unresolved for this long, the FEC (once again) should take the blame. Those adopting this position point to Judge Jackson's opinion, in which she lays out in some detail the obscure route by which the FEC arrived at its position.

But, as so often, the FEC is paying handsomely for the complexity of the issue and the sins of others. A fair share of the responsibility for this disclosure controversy lies with the Supreme Court's garbled jurisprudence, which has produced confusion about the constitutionality of campaign finance requirements applied to “issues speech”.

When the Supreme Court took up the McCutcheon case, and again when it was decided, commentators suggested that the Court might be poised to reconsider the constitutional foundations of contribution regulation. The Justices had done what they needed to do to expand and solidify the right to independent spending; now they would turn their attention, in the same deregulatory spirit, to contribution limits, perhaps laying the foundation for invalidating them. McCutcheon does not by its terms really justify this fear. It did direct attention to the question of how—and not whether—contributions are regulated. And other cases percolating in the court system have begun to confront those questions.

Arguments about the prospects for campaign finance regulation now fall broadly into three categories: (1) close up loopholes; patch up the rulebook; (2) wait for scandal to break the logjam; and  (3) rethink the issues.  In recent weeks, we've had clear restatements of these alternatives.

A recent posting here suggested that the constitutional analysis of ID statutes is foundering on the issue of partisan motivation—the politics of ID. The centrality of this motivation is inescapable. it is impressing itself on a prominent jurist like Richard Posner, once dismissive of claims against ID statutes, and it is supported by the evidence considered by political scientists (see here and here). Yet the jurisprudence developed around ID has fared poorly in showing how political motivation can be incorporated into a constitutional test.

Judges Easterbrook and Posner square off in their opinions on the Wisconsin voter ID statute and their exchange comes down to two questions: the differences in the design and effects of ID statutes, and the significance of partisan motivation. Frank V. Walker, Nos. 14-2058 & 14-2059 (7th Cir., Oct. 6, 2014). Easterbrook is casual, if not careless, in discussing the differences, and in his treatment more generally of facts. Posner insists on their importance. Easterbrook sweeps aside the question of political motivation, and Posner does not.