No recent political subject has generated more heat and less light than that of campaign financing. John McCain seems determined to make it the hallmark of his political career, doggedly pursuing in the Senate what he failed to accomplish in last year's presidential primary. But in doing so the Arizona Senator has placed himself at odds with the Constitution. The only public official who has consistently brought intelligence to bear upon the question is Sen. Mitch McConnell (R-Ky.), who has said, repeatedly and truly, that all the efforts to outlaw "soft money" violate the Constitution.
The First Amendment 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." But these rights do not stand in isolation from each other. They 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 decide who next shall fill those offices. To the extent that a government bureaucracy decides the allocation of resources of political speech is the extent to which the electoral process is a reflection of the opinions of the government bureaucracy, and not of the people.
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 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 Paper, James Madison framed the problem of dealing with "factions," a word which was a virtual synonym for what we call "special interests." "The latent causes of faction," writes Madison, "are sown in the nature of manâ€¦"
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 forms 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." The father of the Constitution promises not the suppression of that spirit, but its emancipation.
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 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.
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 described a vast 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 — where else? — 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 put there by the pickpockets.