Morton Keller, a distinguished political historian, has written a book entitled America’s Three Regimes:  A New Political History (2008).   By regimes, he means the set of institutions by which the country governs itself, and he divides American history into three such regimes, the last of which—the populist-bureaucratic regime—is ours.  He writes of the experience in this regime with campaign finance reform, and he is skeptical:  he argues that reform chased after ill-defined objectives and managed only to trample parties, enhance the power of interest groups and help accelerate the pace and demand of fundraising.

     His chapter on this topic is short, entitled “Unexpected Consequences.”  When McCain-Feingold was passed, he published a more extended essay in The Forum, and he was critical then, as he is now.  Keller, Morton (2003) "Money and Politics: The Long View," The Forum: Vol. 1 : Iss. 3, Article 5. Available at: http://www.bepress.com/forum/vol1/iss3/art5.  Keller’s main objection was to the projected impact on parties.  He thought they would be weakened.  Like so many others, he did not see that parties had become easy prey, to be picked apart legislatively, because they were weak. 

     Of course, McCain Feingold did not make things any easier for the parties:  it kicked at them while they were down.  Now they are told that they are healthier than ever before, even as it becomes clear that the national committees must claw for dollars while the congressional committees, buoyed by their association with incumbents, fare relatively well for none of the reasons typically given for healthy “parties” with mass, committed memberships.  Meanwhile, interest and ideological groups press on with their plans, funding them at ever increasing levels. 

     As the law flails away at “corruption” and its appearance, succeeding only in stimulating more spending and encouraging assertive interest groups, one fact stands out.  The law is now so complex that even a fine observer such as Keller struggles to chart its development.  According to Keller’s history, the FEC held in l978 that PACs could give unlimited sums to parties, but this was not really what happened.  PACs are a source of hard, not soft, money.  Keller stumbles, too, in confusing soft-money paid issue ads with independent expenditures made by parties with “hard” money, by leave of the Supreme Court in Colorado Republican Federal Campaign Comm. v. FEC (518 U.S. 604 (1996)).  It is also not the case that McCain-Feingold “cut donations” to PACs, except that, in a relative sense, their position deteriorated because their contribution limits, unlike those of parties and candidates, were not indexed for inflation.  America's Three Regimes at 254-255.

     Keller has certain details wrong, but who by now can say that the law has not become a cipher?  He is otherwise quite precise in his main themes.  He argues that the law did set a “new course,” Money and Politics at 3:  “regulation previously focused on the size and sources of campaign spending” now sought to “regulate it timing and content.”  This was a First Amendment challenge not clearly offsets by any tangible benefits in reducing the degree of “corruption” in the political process.  And the parties were the primary target of regulation, putting them at a further disadvantage in holding their own against interests.

     Keller has done considerable service in attempting to put this law into historical context, asking that we appreciate how McCain Feingold relates to the concerns and political pressures of the time and how, years from now, we might come to evaluate its impact.  The story of McCain-Feingold is a complex political story, one which is related more often, and oversimplified, in constitutional or policy terms.  There is some reason to think that the defense of the law depends to a considerable extent on maintaining a narrowed—neither an historical nor a political—perspective.

Bob Bauer