In judging the Robert’s Court record on campaign finance, Rick Hasen finds that progressives have little to cheer about, except that it might have been worse. He looks into the reasons why the Court majority has moved more slowly toward deregulation than some might have predicted, and, as one might expect, his analysis is insightful.Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902. But he also assigns the Court heavy responsibility for the state of reform. Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform.
To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of reform programs—that is, certain reform programs that follow the very Watergate-era model that has largely come apart. But an account focused on the Court skips to the middle of the story; it leaves too much out.