The Super PAC is the leading issue in campaign finance, and this is only superficially because it is new, exotic and, to many who write about it, alarming.  It has without question brought to head the fault line running through the contribution-expenditure distinction and expedited the obsolescence of the Buckley framework.  And it is forcing the question of whether we should be concerned in campaign finance about corruption or its appearance, or perhaps about something else.  And the answer is “something else.”

Lawrence Tribe and Floyd Abrams have each spoken or written recently about Citizens United, and their views, while not the same, suggest a continuing movement toward appraisals that are balanced between full embrace and outright condemnation. And, as Professor Tribe suggests, a measured judgment of the Court’ performance in that case helps with the re-orientation of the campaign finance debate that is long overdue.

The study by Emory’s Alan Abramovitz, recently discussed by Jonathan Bernstein, heavily discounts the effect of heavy outside spending on the 2014 Congressional elections. His conclusion: that the impact was zero or barely higher, and that the more significant factors were state-level presidential partisanship and incumbency.  But neither Abramovitz nor Bernstein mean to wave away the public policy or regulatory implications of campaign spending.  Candidates still need the money and ask for it, and questions are raised by their dependence on those who supply it.

Still, this study and others are useful reminders of a confusion in the campaign finance debate—the difference between conceptions of a healthy electoral process and worries about the corruption of government. It is not necessary to the importance of donors or spenders that they be clearly able to “buy elections."  It should be enough that their spending might sway the choice of the campaign issues raised and debated and determine the competitiveness of candidates associated with particular policy positions. This is not a question of the effect of their money on government, but on the electoral process itself. 

More balance in the public and press discussion of campaign finance issues would be desirable. This last week the FEC held a hearing, and whatever press coverage came out of it was largely devoted to belittling it.  And then there was more of the same:

The five year anniversary of Citizens United finds critics largely where they stood when the opinion as first issued. Enthusiasts remain cheered and critics have lost none of their gloom. One difference is that time has passed and the inquiry has shifted from predictions about what CU will have wrought to claims about what the data shows about its effects. There is no agreement here, either, and any one analyst’s interpretation of data typically corresponds closely with her heartfelt views of the decision’s rightness or wrongness. Like most campaign finance debates, this one does not change minds.   We are in for endless and inconclusive argument about CU’s contribution to oligarchic rule, or its responsibility for “dark money, or for trends identified in the volume of money spent in politics.

These “big picture” disputes may block a clear view of other, more subtle but still significant changes in campaign finance doctrine and practice brought about or encouraged by CU. These are changes that can’t be precisely pinned to CU alone: the whole course of campaign finance doctrinal development was driven, principally by Buckley, in particular directions, and CU, after all, is an “independent expenditure” case the logic of which rests in the main on the 1976 case. But CU as a case about independent corporate spending, and about campaign finance regulation more generally, occupies a special, prominent place in this history, and it is in this context that it might be best understood.