The following was posted on the the National Constitution Center's Constitution Daily blog at  http://blog.constitutioncenter.org/2013/11/the-mccutcheon-case-hard-money-soft-money-and-now-something-in-between/. 

Campaign finance regulation in the United States is complex, and judges have begun to complain about it. Most famously, Justice Kennedy spoke about the proliferating and abstruse rules in his opinion for the Court in Citizens United. At oral argument in a recent case, Justice Scalia suggested that no one really understood the law. The complexity of campaign finance rules is not just the handiwork of the regulators: the Court’s own doctrine can be hard to fathom. Once there was supposedly a clear distinction between “contributions” and “expenditures,” but this is no longer quite the case. And the line that once separated legal, clean “hard money” from illegal “soft money” may soon be harder to discern, after the Court has decided the pending case of McCutcheon v. Federal Election Commission.

Professor Pamela Karlan would have the Supreme Court be more attentive to the impact of its decisions on the current pathologies of American politics. She points out how cases like the one the Court will decide shortly here on recess appointments bear directly on the capacity of the government to function. See Nat'l Labor Relations Bd. v. Canning, No. 12-1281 (S. Ct. docketed Apr. 25, 2013). Then, toward the end of her piece, Karlan ties in campaign finance reform. The Court's decisions on political spending can either “lower the temperature” of contemporary politics or further inflame it. Karlan sees the court as performing poorly on this score in the past, as in Citizens United, and as poised to make the same mistake in McCutcheon v. Federal Election Commission.

Joe Nocera has put out a call for reform and opens the discussion with a few that he favors. Tying his list together is his hope to "invigorate the electorate" and encourage "more responsive, and less extreme, political candidates.” These different goals can pull in different directions. An electorate is often invigorated by negative campaigns—which is not to say that candidates have to be extreme in order to be negative, or that only negative campaigns are invigorating, but the connection is not unknown, either. And there is also nothing to suggest that extreme candidates, however Nocera defines “extreme,” are unresponsive. Many are responsive to constituents that reward them for this type of behavior.

Of the different reforms Nocera lists, two illustrate the reasons why some reform programs open with hope and end in frustration, and others might stand a chance.

A scan of recent days’ writing reveals two lines of argument about the Supreme Court’s failings in campaign finance. One holds that the Court’s understanding of politics is weak and leaves it helpless to grasp, in practical terms, the issues presented. It is suggested that Congress knows best; its members, also political candidates, are experts in the electoral process. Others argue that there is hope for the Court but it would require an improvement in the arguments it hears, and Professor Lessig and his allies continue to urge that the Justices be pressed on his “originalist” argument for an expansive view of the corruption—“dependence corruption”—that Congress should be empowered to control.

There is more to add in each instance to round out what the proponents of these points of view have chosen to offer.

As the Supreme Court decides McCutcheon, should it be looking for a middle ground? Some, like Rick Hasen, think so; others, like McMichael McGough, do not. But it is worth considering what it means for a campaign finance jurisprudence to be “moderate.”