"I had never heard of such limits. Somebody... showed me a chart on the federal rules of campaign giving that was so complicated..."

"... I could barely make any sense of it. On the advice of their lawyers, most people simply comply with these rules and don’t raise questions. As an American engineer in the land of the free, I wanted to understand just exactly why my First Amendment rights were being limited."

Said Shaun McCutcheon, the McCutcheon in McCutcheon v. Federal Election Commission, decided yesterday, in his favor.

My Supreme Court case wasn’t about throwing out sensible limits on money in politics. It was narrowly focused on the “aggregate limits” for contributions under the federal election campaign law—the maximum amount that anybody can give to a number of candidates and national party committees combined. The case was not about base limits: $2,600 (for either a primary or general election) or $5,200 (for a primary and general election combined) to a single candidate in a two-year election cycle, or the separate amounts of $32,400 to a party committee or $5,000 to some PACs and $10,000 to state parties. Congress and the courts have determined that these limits are so low that they don’t pose any risk of corrupting candidates or our political system.

It was the aggregate limits on giving to the candidates and committees that made no sense to me. The consequences of these rules were absurd. I could give the legal amount of $2,600 to 17 different candidates. But if I give that same legal amount to an 18th candidate, it constitutes a violation that somehow corrupts the system.

Lawprof Richard L. Hasen has a piece in Slate that's called — dramatically — "Die Another Day." Die another day, because X hasn't "died" in McCutcheon, but McCutcheon is a step toward the death of X, which should distress us, if we care about X. So even if you, like Shaun McCutcheon, think it makes no sense to stop a person from giving $2,600 to one too many candidates, you're supposed to be mad about the Supreme Court opinion because it portends further damage to the entity that's lumbered over the landscape for so long under the banner "Campaign Finance Reform." It's lost a few limbs along the way, but it's not dead yet. What it lost in McCutcheon was perhaps a useless appendage, capable only of flailing about and hurting well-meaning folk like Mr. McCutcheon, but Hasen wants you to take alarm, because McCutcheon foretells death!!!... death to whatever it is at the core of Campaign Finance Reform that we ought to want to keep.

McCutcheon is "subtly awful," Hasen says, revealing his awareness that ordinary readers may, like Shaun McCutcheon, think the aggregate limits make no sense and therefore the Court got it right. The Court "sidestepped... the question of whether to apply 'strict scrutiny'" because the difference between strict scrutiny and the less demanding form of scrutiny ("exacting scrutiny") didn't affect the outcome because the government's asserted interest had so little to do with aggregate limits. If the level of scrutiny wasn't raised, then what's "awful"? Or is it "awful" to Hasen precisely because he can't find anything unsubtle? You need something dramatically awful to stir up the public's antagonism toward the Supreme Court, so Hasen's idea is that Chief Justice Roberts is devilishly subtle.

Roberts, the subtle devil, has done 3 things that Hasen wants us to find ominous.

First, Roberts said the government could only justify its restrictions of campaign contributions in pursuit of the interest in preventing quid pro quo corruption. Hasen says: "Equality, for example, is a forbidden interest under the First Amendment." He means: The government can't justify restricting freedom of speech on the ground that it is trying to promote equality.

Second, Roberts performed "exacting scrutiny" in a manner that seemed rather... exacting. See the devious subtlety? Hasen does:

Why write an opinion that dramatically adopts strict scrutiny when one can accomplish nearly the same thing by quietly changing the meaning of the “exacting scrutiny,” which applies to contribution limits?

Hasen — to my amusement — goes directly from noting Roberts's avoidance of "an opinion that dramatically adopts strict scrutiny" to "Third and most dramatically..." Most dramatically? I thought the whole idea was that Roberts was doing 3 things that were subtle and not dramatic, that he was the no-drama guy. In that context, what does it mean that the third thing was the most dramatic? This is practically a Zen koan. What is the sound of one hand clapping and what is the drama of no drama? Is the most dramatic subtlety the thing that is most subtle? It's so subtle, it's dramatic. I am deafened by the silence and dazzled by the darkness.

But let's plod on, across the legal landscape, where the wounded entity Campaign Finance Reform stumbles toward its Roberts-dug grave. There's a third thing to be explicated. It's dramatic, we've been warned. Here it is:

Third and most dramatically, the court seems to open the door...

Egad! It's the dramatic semblance of opening a door.

... for a future challenge to what remains of the McCain-Feingold law: the ban on large, “soft money” contributions collected by political parties. 

How did Roberts seem to open that door? Because that ban is based on wanting to stop citizens from buying access to elected officials, and Roberts seemed insufficiently concerned about that problem. At this point, Hasen resorts to a long Roberts quote, which I suspect few of his (or my) readers will take the trouble to absorb, so let me just tip you off that it contains the buzzword of this post "dramatically":

When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi­cal process.

Roberts subtly-dramatically values "join[ing] together to further common political beliefs," and he's inclined to characterize widely distributed contributions in that light and to resist the government's attempt to lump them together with bribery and the quid pro quo contributions that are hard to distinguish from bribery.

Having set out those 3 subtle/dramatic things, Hasen tells his readers not to be "fooled by Roberts’ supposed restraint." I don't think Roberts is trying to "fool" anyone, and the modest framing of the opinion is real: Roberts did not elevate the level of scrutiny beyond "exacting" and he did not recognize a government interest beyond preventing bribery and quid pro quo corruption.

And I don't think Roberts purports to take what is traditionally called a position of judicial restraint, which is: deference to the acts of legislatures, presuming their constitutionality. Roberts is taking the First Amendment seriously and stepping up to the classic judicial role of saying what it means and enforcing constitutional rights. That's what typically gets called judicial activism by those who like something the legislature has done and who don't have much respect for the particular version of the constitutional right asserted in a case.

But Hasen, who likes campaign finance reform legislation and doesn't respect the version of the First Amendment asserted in McCutcheon, found it hard to call Roberts activist. That's what was so frustrating, so devious: If you're going to be activist, be activist out in the open where it's easy for your opponents to attack you as activist. But no, the serpent was subtle....