Maybe the issue is indeed one of appearances, but appearances, the “look” of things, can’t carry the work of revising the standard of constitutionally protected “independence.” Professor Briffault sets as his goal the higher ambition of “maintain[ing] the integrity of the contribution/expenditure distinction that has been a foundational part of our campaign finance law for nearly four decades.” His proposal certainly helps expose the futility of the distinction but is very unlikely to save it.
Bauer on McConnell on CU:
However one views his reform program, Professor McConnell is right on two key points of his defense of Citizens United. The decision in CU is shoddy work, and neither that decision nor any other the Court has issued in recent years has helped shore up a campaign finance doctrine built on the distinction between contributions and expenditures.
Bauer on Justice O’Connor on Bush v. Gore:
In Bush v. Gore, Justice O’Connor appears to have concluded that whatever moved the majority to intervene in the Florida recount cost too much in backlash against the Court. Caperton has not stirred up the same volume and intensity of complaint. In fact, many critics enraged by Bush v. Gore have an understandable soft spot for Caperton, taking it to be a step in the right direction—away from Buckley’s ill-fated contribution/expenditure distinction. But, on the fundamental question of how the Court makes election law, the two cases are much alike, even if Justice O’Connor has second thoughts only about one of them.