In a Washington Post piece, Rick Hasen argues that if the aggregate individual contribution limits fall in the McCutcheon case, the results could be both good and bad.  To the good: parties could raise and spend more freely, and therefore would be strengthened when more vigorous parties are needed to temper polarization and alleviate governing gridlock.  To the bad: “more” corruption would result from expanded large donor influence over the political process.  Rick wishes that the two goals, clean but also functional politics, could be achieved in tandem, but with the Supreme Court’s  limitation on Congress’s authority to prevent corruption, he is convinced that we might have to accept more corruption in return for possibly better government.
How much can a candidate do for a Super PAC without illegally “coordinating” with it? Recent proposals would answer that she has to keep her distance—no publicly (or privately) stated support and no fundraising for the independent committee. A bit of a surprise has developed in the debate. While questioning how far these restrictions can go, Rick Hasen concludes that as a matter of constitutional law, Congress may prohibit the fundraising, and on this point, he sides in theory with Brad Smith of the Center for Competitive Politics. Richard L. Hasen, Super PAC Contributions, Corruption, and the Proxy War Over Coordination, Duke Journal of Constitutional Law & Public Policy (forthcoming), 16-17, available at ; Bradley A. Smith, Super PACs and the Role of “Coordination” in Campaign Finance Law, 49 Willamette L. Rev. 603, 635 (2013). Rick Hasen and Brad Smith are not often found in the same jurisprudential company.  So it is interesting to consider how they may have arrived there and why, in their judgments about the regulation Buckley would allow, they appear to have erred.

Selling the American Anti-Corruption Act

December 5, 2013
posted by Bob Bauer

Consider this program to—


Represent.Us is not just building a movement in support of the [American Anti-Corruption] Act, we’re going to use our collective power to stand against those who stand for corruption. If it becomes law, the Act will completely reshape American politics and policy-making and give people a voice.

This is a bold claim that the sponsors of the American Anti-Corruption Act have made. Perhaps “bold” is the wrong word; “audacious” might be more accurate. The sponsors declare that the adoption of their proposal will “completely” reshape American politics and that it will be “completely transformative” in giving the people a voice in their government.

Lying in Campaigns—and the Functions of Super PACs

June 10, 2013
posted by Bob Bauer
Rick Hasen recently published an interesting article on the legal remedies for malicious lying in politics. Richard L. Hasen, A Constitutional Right to Lie in Campaigns and Elections, 74 Mont. L. Rev. 53 (Winter 2013) . He fears that “false and misleading speech may be increasing” in a “highly charged partisan atmosphere, in which each side cannot agree upon the basic facts,” and that the media, including the burgeoning fact-checking corps, “are not able to meaningfully curb candidates' lies and distortions.” Id. at 54. 55. Legal responses seem largely beyond reach, particularly after the Supreme Court’s decision in Alvarez v. United States, 132 S. Ct. 2537 (2012), which Hasen reads to indicate that “broad laws targeting false speech stand little chance of being upheld, regardless of topic.” Id. at 69.