The McCain-Feingold Coordination Rules: The Ongoing Program to Keep Politics under Control

Article excerpt

There is a quality even meaner than outright ugliness or disorder, and this meaner quality is the dishonest mark of pretended order, achieved by ignoring or suppressing the real order that is struggling to exist and to be served. (1)

I. CAMPAIGN LAW AND CITY PLANNING: COORDINATION

Campaign finance regulation is not widely classified as "urban law," except, of course, to the extent that municipalities, like other units of government, may impose controls on political monies raised and spent to influence city elections. This latter sense is a narrow one: it does not support the application of the term "urban law." But there are ways of thinking about cities, about the qualities of urban life and the challenges of urban planning, that illuminate, if only by analogy, the special difficulties presented by modern attempts to regulate politics. There is always occasion for a different angle of vision on the nature of those difficulties, and this Essay attempts to present one.

The particular thought about cities that provides the point of departure is that of Jane Jacobs. Jacobs sharply criticized urban planning that did not respect the special rhythms and inner structure of city life. The tradition of planning she assailed in her book, The Death and Life of Great American Cities, exhibited, to her mind, "great disrespect for the subject matter itself--cities." (2) Of Ebenezer Howard, the English planner responsible for the concept of the Garden City, she wrote that "he hated the city and thought it an outright evil and an affront to nature." (3) It was, for him, a "Megalopolis, Tyrannapolis, Necropolis, a monstrosity, a tyranny, a living death." (4) Howard proposed, in effect, to subdue the city, for he "conceived of planning also as essentially paternalistic, if not au thoritarian. He was uninterested in the aspects of the City which could not be abstracted to serve his Utopia. In particular, he simply wrote off the intricate, many-faceted, cultural life of the metropolis." (5)

Howard, and others like him, could not see cities as "lively, diverse, intense" (6) or examples of "organized complexity" (7) constructed from the "interrelations of ... many factors." (8) Planners with his vision saw them instead as a form of corruption, an enemy of nature, inconsistent with "purity, nobility and beneficence." (9)

This manner of thinking that reveals anxiety toward disorder and the threat of "corruption" it poses, might also bring to mind the contemporary conceptions of politics on which modern campaign finance reforms rest. Politics in its natural state is restless, untamed, and aggressive, and its way is that of ceaseless bargaining, untrammeled speech, and shifting alliances--all shaped by both high ideals and ruthless self-interest. The law of the land has progressed steadily toward a comprehensive regime of controls, a form of planning, enforced by legal sanction, and intended to introduce into the political form "purity, nobility and beneficence." (10) This consists of conceptions of "clean" politics conducted through elevated dialogue on the "merits" without the contamination of self-interested pursuits or the special advantages achieved through the possession of great wealth. (11)

The field of political regulation affords many examples of how this vision has been pursued, but none seems as apt for the present purpose as the restrictions imposed in the most recent round of campaign finance reform known as McCain-Feingold (or in the House, Shays-Meehan). (12) Among its provisions, in particular, are those restricting "coordination" with candidates and political parties. (13) The "coordination" rules are intended to enforce the limits on contributions to candidates and parties. (14) Congress is concerned specifically with circumvention of those limits: the threat of circumvention is addressed by restricting political communications and also political relationships. (15) More than most features of campaign finance reform, "coordination rules," in the name of law enforcement, attack the roots of political discourse and commerce. …