The race is on to explain what happened in these midterm elections. In the analysis of campaign money, certain themes are emerging. It is argued that the outside groups facing major questions after 2012 “proved their worth” this year. This demonstration of value consisted in part of how much money they spent but in part in their adoption of improved strategies, including imitation of Democratic data-gathering and micro-targeting. The analysis has run on a few assumptions, stated explicitly or just hinted at it, some of which will inevitably inform the campaign finance policy debate.

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.

Exploiting the political process for personal gain will not be tolerated, and we will continue to pursue those who commit such illegal actions

 Acting Assistant Director in Charge of FBI Field Office, on the Sorenson Indictment

Mr. Kent Sorenson was indicted and now has pled guilty in a matter involving falsified campaign finance reports. One campaign paid him to switch his support from another, and the compensation was routed through other vendors to the campaign to conceal money paid for his changed candidate preference. His guilty plea covers the federal reporting violation and the obstruction of justice committed when he denied publicly that he had been paid for his switch in allegiance and asserted that anybody who doubted him could simply consult the campaign’s reports where they would not find any such compensation.

As a straightforward reporting offense, Mr. Sorenson's case is of limited interest. But another question, presented squarely by the comments of the senior FBI official, is whether the criminal laws reach compensated political endorsements that are openly disclosed. Is it true, as this official suggests, that it is a crime to "exploit the political process for personal gain” in this way? Or that it should be?

If there can be said to be an “establishment” response to the Perry indictment, it has been loudly expressed so far in his favor. This is understandable: a case about a veto, or the threat of a veto, built on a vaguely worded statute and poorly illuminated by a two-page, summary indictment, was bound to raise questions.

But Perry has not only been defended against the application of the Texas statute in question, but also more profoundly as a victim of the “criminalization of politics”. Even if the law could be construed to reach the alleged conduct, it is argued, it should not be. Whether the Governor was moving to oust an adversary from office or protecting contributors from an inquiry into state grants, the prosecutor is mistaking hardball politics for corrupt politics. It is one example among others, the critics say, and they point to the failed Edwards prosecution as another instance of the same irresponsible application of the criminal laws.

The “criminalization” of politics is self-evidently undesirable. Then again it is far from sure what the argument against it is meant to cover, that is, the nature of the “politics” that we should worry about criminalizing.