As the Supreme Court decides McCutcheon, should it be looking for a middle ground? Some, like Rick Hasen, think so; others, like McMichael McGough, do not. But it is worth considering what it means for a campaign finance jurisprudence to be “moderate.”

If by “moderate,” it is meant that the Court should address one at a time the issues before it, as necessary to decide the particular case, and that it should decline the temptations to rush into place a particular program, then moderation is certainly a virtue. The hastiness of the Court majority to reach the result it did in Citizens United was unfortunate, and that result was neither the right one nor well-reasoned. But if moderation is essentially a difference-splitting exercise, whereby the Court keeps a little of this but tosses out a little of that, it is not to be praised.

Yet this may seem to some the best result they can hope for—and hence, we see appeals for moderation, directed to the side of the Court that has displayed little patience for campaign finance regulation. Splitting the difference, however, is a political move that tends to contribute to an incoherent jurisprudence, and when used, it has gotten the Court in a bind and its jurisprudence into a mess.

Buckley split the difference, too: it distinguished contributions from expenditures, but by now it should be clear that its theoretical assumptions about the character of each—its relationship to speech and association, its corruptive potential—were off the mark. And the Court knows it: at the McCutcheon argument, it was repeatedly suggested without objection from any Justice that there was little reason to distinguish between contributions and expenditures when assessing the risk that the spender might gain undue influence over elected officials. Still, Buckley remains the constitutional law of the land, and from that point forward, the Court periodically went about difference-splitting as cases came before it that did not lend themselves to a rigorous application of the Buckley-centered jurisprudence.

We see the effects in a fair amount of judicial legislating, as in Massachusetts Citizens for Life, when the Court wished to spare a small nonprofit the consequences of violating the corporate spending prohibition and spun out of whole cloth a special exemption for that purpose. It improvised in similar fashion in constructing the test by which it determined, in Randall v. Sorrell, that Vermont had set its contribution limits too low. In the two Colorado Republican cases, the Court upheld the coordinated spending limits because the close if not controlling relationship of parties to their candidates presented a real risk of corruption—but it also found that when it suited them, parties could terminate that political intimacy and spend independently and without limit for those same candidates. Now, as the Court considers McCutcheon, some say the Court could strike down the aggregate limits on candidates but keep them for parties on the grounds that parties acting through all their units can attract the truly “big money” and serve as the conduits for corrupting the party leadership.

A ruling along these lines would compound the troubles of parties in competition with independent groups, and it would be a small victory for the individual donor to candidates who is offered more “speech by proxy” while able to do substantial business on the side for the same candidates through the wild world of candidate-specific super PACs. But it may be appealing as a moderate outcome because it provides some relief for critics of regulation while slowing the advance of deregulation, all at the same time. Everyone comes away with something.

For progressives, rejecting a splitting-the-difference jurisprudence does not have to mean yielding to the Court’s deregulatory instincts and accepting the inevitable defeat of any reform program. It calls for reconceiving that program. Instead some progressives believe that if they play for time, their day will come. They are looking ahead to that moment when the current majority of the Court on these issues will be replaced with another and the task of rebuilding campaign finance jurisprudence along traditional lines can begin.

But the problem they face transcends the inconvenience of a temporary minority position. It is much more the absence of a fresh framework for thinking about campaign finance that can address—in this time, not for the Watergate era—the role of money in politics and, specifically, the requirements for expanded democratic participation, a vibrant politics, and an increased level of public confidence in the integrity of government. In the meantime, moderation, defined as difference-splitting, may have its appeal, but it is best understood as a tactic, not to be confused with a jurisprudence, and the law it generates rarely withstands critical scrutiny or the test of time.

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