In the present political silly season, no subject has generated more heat and less light than that of campaign financing. Senator McCain has practically made it the center of his drive for the presidency, and Messrs. Gore and Bradley have not been far behind. The only public official who has consistently brought intelligence to bear upon the question is Senator McConnell of Kentucky, who is not running for president. He has said, repeatedly, and truly, that all the efforts to outlaw "soft money" violate the First Amendment. He might have added that all the existing campaign finance laws are unconstitutional, and would have been held to be such, if the Supreme Court had known its business.
Consider that, under current law, as interpreted by the Court, no limit may be placed upon the amount of a candidate's own money that he may spend on his own — but not on anyone else's — candidacy. Hence Ross Perot or Steve Forbes may spend $100,000,000 on themselves — which they can easily afford to do — but they cannot give more than $1,000 to a gifted but impecunious younger politician, better able than themselves to articulate their policies. Suppose that there is someone out there with the soul of Abraham Lincoln reincarnated, but as poor as Lincoln was at the outset of his career. Suppose some wealthy patron saw his own convictions better advanced by this younger man. Something very like this launched the careers of Calvin Coolidge, Richard Nixon, and Ronald Reagan. Surely, we do not want to exclude the very rich from presidential politics, but neither do we want them to constitute a unique political class.
Any limit upon political contributions is constitutionally suspect. The reason lies in the First Amendment, which prohibits "abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the government for redress of grievances." The Supreme Court has held, reasonably, that the right to advance one's political opinions by the expenditure of one's own money is indissolubly linked to the right to advance them by one's personal speech. Why this right may be limited to $1,000 is never explained. But the rights of speech, press, assembly, and petition, do not stand in isolation from each other. They obviously form part of the process by which "We the people" choose those who are to hold office under our authority. It is essential for the integrity of that process that those who hold office do not write laws telling the rest of us how to exercise our rights in deciding who next shall fill those offices. To the extent that a government bureaucracy decides the allocation of resources of political speech, to that extent is the electoral process a reflection of the opinions of the government bureaucracy, and not of the people. In a democracy the people choose the government; the government ought to have no role in choosing itself. Yet it is notorious that every campaign finance law that has ever been passed, has made it more difficult for challengers to unseat incumbents. The $1,000 limit is obviously designed to safeguard the built in advantages of incumbents. Their offices make them familiar to voters, as well as providing means of ingratiating themselves, which their challengers must overcome. Incumbents of both major parties, as a political class, have conspired (as in McCain-Feingold) to make the hue and cry against "special interests" a pretext for safeguarding the existing power structure.
What about those infamous "special interests"? Do not those who invest in candidates and parties expect a return on their investments? Do not lobbyists spend untold millions shaping the laws in their own private interests? These questions are perfectly appropriate. What is amazing is that today no one seems aware that they were the subject of the most profound consideration by those who framed, and those who ratified, the Constitution. The Constitution is indeed, in large part an answer to these questions, an answer of which our present politicians seem largely ignorant.
In the famous 10th Federalist, James Madison framed the problem of dealing with "factions," a word which was a virtual synonym for what we call "special interests." According to Madison, however, faction is an inevitable by product of liberty, and to try to cure the evils of faction by abolishing liberty would be a "remedyâ€¦worse than the diseaseâ€¦Liberty is to faction, what air is to fireâ€¦But it could not be a less folly to abolish liberty, which is essential to political lifeâ€¦than it would be to wish the annihilation of airâ€¦" "The latent causes of faction," writes Madison, "are sown in the nature of manâ€¦"
But the most common and durable source of factions, has been the various and unequal distribution of property. Those who hold, and those who are without property, have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a monied interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests form the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of government.
Let us note that "the spirit of party and faction" is involved in "the necessary and ordinary operations of government." Not the suppression of that spirit, but its emancipation, is what the Father of the Constitution promises. How does this comport with good government? In the extended, federal republic of the United States, the very size of the country guarantees a number and variety of special interests, so great, that no one, or few, can combine to form a majority. This was certainly true in 1787, and is much more true today. It is this number and variety that enables a republican statesman the freedom to seek that combination of interests that serves the public interest and advances the public good. The interests that form the ruling coalition will each have to moderate its demands, in order to be part of that coalition.
Statesmanship consists in promoting this moderation to the point that the special interests will, in fact, be serving the public good. Often however the demands of justice itself will have to be moderated, to gain the support of interests that are less than just but which are indispensable to forming a majority. A supreme example of this are the concessions made to slavery in the 1787 Constitution, concessions without which the Constitution would never have been ratified. Yet these concessions, in the end, served the case of freedom better than any alternative possible.
The most notable example in American history of a campaign against special interests, is Andrew Jackson's war against the second Bank of the United States. Jackson's speeches describe in lurid terms a vast secret conspiracy of bankers against the common people. Yet the practical result of the destruction of the bank was the transfer of the financial capital of the country from Chestnut Street, Philadelphia, to Wall Street, New York. This of course was the intention of Jackson's closest adviser, Martin Van Buren of New York. Then and thereafter, campaigns against special interests have, more often than not, been camouflage for other special interests, more shady, and less defensible than those they oppose.
Many years ago there was a sign in Grand Central Terminal, New York, that said, "Beware of Pickpockets." As the sign caught the eye of passers-by, they instinctively put their hands on their wallets, to the advantage of the pickpockets. Think of campaign finance reform legislation as another "Beware of Pickpockets" sign.