George Will looks at Super PACs and sees the consequences of “reform”: it’s a mess, he writes, the result of pressures for a “thoroughly regulated politics” that drives political actors to evade foolish rules. The Constitution requires “unregulated politics”: recent reform experience shows that any other course is sure to end in a bad place. The choice he sees is between thoroughly regulated campaign finance, which is untenable, or none at all. An alternative account of unsatisfactory reform experience would focus on the type of regulatory program that has dominated the policy debate. The FEC is somehow expected to regulate campaign finance as other agencies regulate food or drugs, or fair commercial practice, and the FEC best equipped for the job would be re-structured to take the politics out of its composition and operation. Underlying all of this is a belief that the right rules enforced by the right people, and repeatedly revised in the light of experience, will bring errant political behavior under control and end cheating. By this definition the “right” rule is one that attacks a questionable practice at its source, however complicated the rule and however challenging it will be to enforce it.
This regulatory model–associated with the “thorough” regulation of campaign finance–can be faulted for lacking modesty and proportion, and for being certain to frustrate expectations. In the case of Super PACs, it has led to a quest to directly regulate political relationships, by providing that no friends or allies of the candidate can run a political committee that spends independently on her behalf, and then also to directly regulate speech, by attaching legal consequences to whether a candidate publicly approves of an expenditure by a PAC supportive of her candidacy. Proponents argue that this thorough brand of regulation is required for the rules to have the necessary bite.
These initiatives seem destined to run into the trouble that has plagued their predecessors. A campaign finance program that rests on rules structured along these lines may gain a temporary majority on the Court, as the McConnell case demonstrated, but the victory is likely to remain temporary.