The McCain-Feingold coordination rules: the ongoing program to keep politics under control.

• Author: Bauer, Robert F.

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)

1. 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. Additionally, more than most features, they illustrate how a fundamental distrust of political life in its lush variety and "organized complexity" shapes the rules applied to politics, but not logically or clearly for the better.

2. A BRIEF HISTORY OF "COORDINATION"

   1. "Expressive Coordinated Expenditures" and the Christian Coalition

      The Federal Election Campaign Act of 1971 defines various limits on contributions to candidates and political committees, and certain forms of spending. (16) For example, contributions from corporations and unions are banned altogether. (17) The limits apply to the direct donation of cash, but also to the in-kind payment of goods and services supplied to the candidate. (18) The law for some years contained a limitation in the form of an anti-coordination rule, providing generally that an "expenditure" of funds would be treated as a contribution to a candidate if made "in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate." (19) The idea was straightforward: if candidate Wilson hypothetically could not pay for 1000 brochures, but prevailed upon the Chamber of Commerce to do so, and then the Chamber financed a benefit for the candidate, it would be properly treated as a "contribution" subject to the same legal requirements as any other.

      For some time, it was unclear how the coordination rules were much different in nature than the proposition that a contribution could be made directly or in-kind. In other words, the coordination provision of the law was a standard regulatory measure, perhaps redundant, but not, in interpretation or enforcement, very intrusive or significant.

      Toward the end of the last century this changed when complaints arose over substantial spending for advertising and other public communications by large, influential membership organizations. (20) This was the era of "soft money," and especially ushered in the use of these funds to finance "issue advertising" by political parties, unions, and corporations. (21) The path to the reformed "coordination" rules started with a partisan complaint and a lawsuit.

      The Christian Coalition drew the complaint, and subsequently entered into protracted conflict with the Federal Election Commission over its distribution of voter guides and "Congressional scorecards," assigning ratings, favorable and unfavorable, to candidates with voting records on the issues important to the Coalition. (22) The complainants, followed by the government, alleged that the Coalition had "coordinated" its distribution with candidates and political party committees and, hence, made illegal contributions to them. (23) This dispute came before United States District Court Judge Joyce Hens Green in the case Christian Coalition v. FEC. (24)

      Judge Green was concerned that the FEC have available tools to enforce the law, but also that the tools be fashioned with care. She focused particular attention on a certain type of expenditures, which she termed "expressive coordinated expenditures." (25) These were, like the Coalition's voter guides, beneficial to the candidates favorably rated in them, but also "expressively" significant to the Coalition in setting out its views on public policy. The judge defined communications of this kind as ones for which "the spender is responsible for a substantial part of the speech and for which the spender's choice of speech has been arrived at after coordination with the [candidate's] campaign." (26)

      Judge Green wished to balance protection of the "expressive" elements of the communication with enforcement of the most direct forms of coordination that represent the specter of "circumvention" of the contribution limits. (27) The judge held that this sort of "express coordinated expenditure" could only be treated as "coordinated" for legal purposes, that is, restricted under the contribution limits, if the candidate had direct control over the expenditure, or had engaged in "substantial discussion" with the spender over its contents, timing, location, intended audience, or other material factors bearing on its creation and distribution. (28) The discussion would have to rise, for this...