The Campaign Legal Center has alerted its readers to a “flood” of challenges to campaign finance laws, and its message is that the reform advocates must remain at their battle stations. It is certainly true that interests hostile to any campaign finance regulation are hard at work; they might well believe that in this time, with this Supreme Court, their moment has come and no time should be wasted. But not all of these challenges are fairly lumped together and described as one indiscriminate assault against any and all reasonable regulation. A few raise questions that even those favoring reasonable limits on campaign finance should take—and address—seriously.

The District Court in New Mexico that struck down a municipal ban on corporate contributions broke away from other courts that, confronting the question, resolved it the other way under the Supreme Court’s decision in Beaumont. Giant Cab Company v. Bailey, No. 13-cv-00426 (D.N.M filed May 6, 2013); Federal Election Commission v. Beaumont, 539 U.S. 146 (2003). Rick Hasen is confident that Beaumont assures reversal if the case proceeds on appeal (which it may not). Maybe so; but the New Mexico case and perhaps others to follow put in question Beaumont as controlling authority for absolute prohibitions on corporate contributions. In the wake of Citizens United, the outcome remains unclear.

In his recently published criticism of Stanley Fish, Russell Jacoby returns to Fish's position (in Jacoby’s words) that “there are no abstract principles outside of society and history.” “Making It,” The New Republic (September 2, 2013 at 36). This position, Jacoby reminds the reader, accounts for Fish’s insistence “that there’s no such thing as free speech”—that speech has no worth independent of context and any value it is assigned is the outcome of a political struggle. See, e.g. Stanley Fish, There’s No Such Thing As Free Speech (1994) at 102. (“Free speech is not independent value but a political prize….”)

Professor Erwin Chemerinsky has succinctly delineated the options available to the Court in McCutcheon v. Federal Election Commission. Erwin Chemerinsky, Symposium: The distinction between contribution limits and expenditure limits, SCOTUSblog (Aug. 12, 2013, 2:42 PM), http://www.scotusblog.com/2013/08/symposium-the-distinction-between-contribution-limits-and-expenditure-limits/. He then notes with regret one voice missing from the current Court’s jurisprudential chorus: the voice for reversing Buckley v. Valeo’s special protections for “expenditures,” once supplied by John Paul Stevens. Justice Stevens famously called in Nixon v. Shrink Missouri PAC, 528 U.S. 377 (2000) for acceptance of the "simple point” that “money is property; it is not speech.” Id. at 398.

Campaign finance jurisprudence is caught in the crosscurrents of formal doctrine and less clearly articulated judgments about the interests it is crafted to serve. One such judgment has to do with the “little guy”: the pamphleteer or small-scale political enterprise that raises and spends money to influence elections but whose activities have little or no corrupt potential and should not come within the regulatory grasp of the state. The Court has gone to considerable and inventive lengths to spare the little guy the dead weight of the rulebook, See, e.g. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) and FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) and it may have occasion in the near future to do more of the same. Because the doctrine is only roughly fitted to the purpose, the protection of the “little guy” has served the “big guys” well; an approach cobbled together on the fly for the smaller, more local enterprise has shielded the major political spenders.