A scan of recent days’ writing reveals two lines of argument about the Supreme Court’s failings in campaign finance. One holds that the Court’s understanding of politics is weak and leaves it helpless to grasp, in practical terms, the issues presented. It is suggested that Congress knows best; its members, also political candidates, are experts in the electoral process. Others argue that there is hope for the Court but it would require an improvement in the arguments it hears, and Professor Lessig and his allies continue to urge that the Justices be pressed on his “originalist” argument for an expansive view of the corruption—“dependence corruption”—that Congress should be empowered to control. There is more to add in each instance to round out what the proponents of these points of view have chosen to offer. The modern reform program does not generally invest much in the stalwart support of politicians. For the most part it is highly suspicious of pols. In gerrymandering, reform advocates contend that politicians invariably design districts to their narrow political advantage. In campaign finance, the Federal Election Commission is regularly reviled for being a hand-puppet of the two political parties who appoint Commissioners compliant with their wishes. Then there is ongoing accusation that elected officials fail or refuse to police their own ethics, through the legislative disciplinary bodies. In the House, this distrust led to the creation of the Office of Congressional Ethics as an “independent” enforcement mechanism structured to compensate for official fecklessness.
How, then, would a reform vision for campaign finance draw hope from turning over the work of reform to elected officials who will raise and spend money under the very rules they write? There is no way of knowing. Perhaps it is the last and only way out for those disillusioned with the Court; maybe they don’t expect too much, but whatever the expectation, it will exceed what the current Court majority can offer.
Or, as experience demonstrates, the politicians on whom they would rely are a select few committed to the cause of reform and able with editorial support and political pressure to prod their colleagues into following. The expertise to which argument appeals is really the preserve of this few: it is more their authority than the expertise of the many that would be called on. And this authority, in an ironic turn, is derived from the ways these few differ from their colleagues—a difference in the priority they assign and the perspective they bring to the issue.
So the expertise in question is of a particular kind and not widely distributed. It is often classified as expertise because it yields expert opinion consistent with the preferred legislative program. The politicians who are convinced that money accounts for certain legislative behavior, and who have solutions to offer, are the acknowledged experts. Others who don’t share these views are not.
Full Article: What to Do About the Court: Two Views.