Progressive Reform and Progressive Politics

July 16, 2013
posted by Bob Bauer

Rick Hasen has thoughtful advice for progressives on campaign finance reform, and it can be summed up as an exhortation to live to fight another day. He counsels against misguided gestures (constitutional amendments), empty gestures (“lip service” to reform without action) and giving up altogether and moving on to other issues. Richard L. Hasen, Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, UC Irvine School of Law Legal Studies Research Paper Series No. 2013-117 (Forthcoming in Harvard Law & Policy Review)

There is much Hasen has offered for reflection and discussion, but there are two issues—one of diagnosis and the other of prescription—that his analysis quickly raises.

The diagnostic move he makes is to regret, as he has elsewhere, the loss of Justice O’Connor and her replacement with Justice Alito. The turn in the Court, he argues, was a 180 degree turn, Id. at 4 and he suggests that progressives can bide their time, revamp progressive jurisprudence for a new day, and hope for an eventual change in the composition of the Court in their favor. “The pre-Alito regime was not entirely coherent,” he states, but “the jumble of rules did strike a delicate balance between free speech rights and anti-corruption and political equality.” Id. at 5.

About this point one could have doubts. Justice O’Connor’s jurisprudence was inconsistent and unpredictable: she tended to call the cases as she saw them. The result was, as Rick has noted, that the Justice shifted her position twice on the constitutionality of corporate spending bans. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), she joined Justice Kennedy in dissenting from the state’s regulation of independent expenditures, and it bears recalling Kennedy’s position that speech restrictions cannot vary with the identity of the speaker—a central ground of the Court’s later decision in Citizens United. Id. at 699.

Rick has lauded Justice O’Connor for saving McCain-Feingold with her vote in McConnell, but he has also accepted that there was a cost: McConnell is not a triumph of doctrinal clarity or rigor. On another occasion, Rick has called it a “failure,” and he gave no quarter in describing this failing, writing that the Court majority “engaged in unusually sloppy and incomplete reasoning to justify its holdings” and—

The result is jurisprudential incoherence and a lead opinion in the most important campaign finance case in a generation that appears to pay only cursory attention to the First Amendment interests that must be balanced in evaluating any campaign finance regime.

Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission, 154 U. PA. L. Rev. 32-33 (2004)

It is reasonable to prefer an outcome at the price of doctrinal messiness—reasonable even to prefer it to a vote the other way that is cast on the basis of a consistent jurisprudential hostility to the campaign finance laws. But then it is fair for others to point out that the O’Connor performance did not necessarily set the standard to which progressives should refer in planning for the future. For if “the key is to lay the groundwork for the Supreme Court to reverse Citizens United and other cases, returning to its role of carefully balancing rights and interests in this very difficult arena,” Justice O’Connor’s handiwork in McConnell does not represent the “careful balancing” he is looking for. Three Wrong Progressive Approaches, at 14.

And while the current failings of the campaign finance regulatory regime include much of what troubles Rick, the law was not in particularly good shape before. It is a mild understatement to say that the “pre-Alito regime was not entirely coherent.” Rick refers to it as a “jumble of rules” which he believes somehow struck a “delicate balance” between free speech rights and regulatory interests. By a straight definition of the term, “jumble” suggests disorder, untidiness, even chaos. Whether a “delicate balance” emerged from this clutter is open to serious question.

Then, in its prescription of steps for a resurgently progressive jurisprudence, Rick’s presentation raises a vital question of emphasis. While insisting that regulation should be reasonable and “only reasonable,” Id. at 15, Rick seems largely concerned with establishing a foundation for limits. In practice this has meant that campaign finance regulation begins with the construction of limits and restrictions and then identifies exemptions and accommodates constitutional requirements, such as protecting independent expenditures. In the resulting “jumble of rules” the “delicate balance” Rick calls for has proven elusive. Perhaps the time has come to reverse the order of emphasis and consider what is required for the next-generation model of political engagement and participation, and then build into it appropriate, carefully fashioned limitations and disclosure requirements. What comes first in the progressive rebuilding project may make considerable difference.

Stated another way: progressive campaign finance reform should be developed within, and not apart from, a conception of vigorous political action. Rick Hasen sets as progressive goals “protecting robust free speech to deterring corruption and promoting equality.” Id. Included in the list should be the goal of effectively “doing politics,” and it should not be tacked on to the end.

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