Bauer on Potter and Lessig on McCutcheon

Bob writes:

In short:

We have in currency two explanations for why the Supreme Court will not give campaign finance regulation more room: the Justices do not understand politics, and they have missed a critical Constitutional principle. These views of the Court’s performance have it faltering on either the facts or the law. In the one case, the solution is to turn the task back over to politicians—or a subset of them; and in the other, it is to get the attention of the Court and bring it to enlightenment or expose its originalist inconsistencies.

Advocates of the first solution are arguing for the recognition of a Congressional expertise free of—or at least largely uncontaminated by—self-interest and conducive to enactment of their program. Advocates of the second want the Court to correct the error of its ways and accept that government regulation of political money is a triumph of originalist principles.

They have their work cut out for them.


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