This is the position I submitted to the New York Times’ “Room for Debate” Forum, on the question of the state of campaign finance regulation and possible directions for its future:

 

Forty years after the passage of the federal campaign finance laws, we have considerable experience with how they work, but the debate about them has become tired and repetitive. No one is happy with the situation as it now stands: not those who worry about corruption, not those troubled by the First Amendment cost of extensive regulation, and not those who yearn to bolster public confidence in the integrity of their government. There is everywhere evidence that reconsideration and rebuilding are in order.

Justice Stevens has taken the occasion of another address to critique the Supreme Court's campaign finance jurisprudence. This time, his attention fixed firmly on the McCutcheon case, he asks why the Constitution should protect campaign contributions made by one state or district’s residents to a candidate who represents another. Mr. McCutcheon, he argues, had no clear right as an Alabaman to contribute to candidates in other states, and the Supreme Court mistakenly overlooked this weakness of his case.  The Justice cites as authority for his position the Supreme Court's validation of Congress’s prohibition on contributions by foreign nationals. Of the Supreme Court’s failure to deal with the question of a contributor’s right—or lack thereof—to support a candidate in another jurisdiction, Justice Stevens writes that it was a glaring oversight—an “oops,” as he puts it.

Granting the differences between the two cases,  it is somewhat remarkable that a Supreme Court in a hurry to affirm corporate free speech rights in Citizens United is proceeding at a leisurely pace, in Susan B. Anthony List v. Driehaus, in adjudicating the constitutionality of Ohio’s “false campaign statement” law.  Maybe any complaint along those lines should yield to relief that the Court decided the case—a political campaign case!—unanimously.   And as Rick Hasen has pointed out, the safest bet was that the Court would do as it did, clearing the way for a pre-enforcement challenge while putting off judgment on the core constitutional issue.

First libertarian party committees, then the Republican National Committee, filed a suit last week to claim for political parties the advantages enjoyed by Super PACs. Each wishes to raise unlimited individual funds for “independent expenditures.”  The cases are a predictable consequence of Speechnow.org v. FEC: these party committees are arguing that what is good for the outside groups should be good for them, so long as they are also spending independently of their candidates.

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.