In 2002, McCain/Feingold was passed with the noble-sounding goal of limiting the influence of  money on our legislative and election processes.  Less than two years later, the statute survived a challenge at the Supreme Court level, to the complete shock of anyone with a traditional definition of “free speech”.   In addition,  there is plenty of evidence that it was political speech, and in particular, the right to speak out against the policies and members of the government that The Framers sought to protect.  And in today’s day and age, “speaking out” can take many forms, including television, print, radio and the Internet.  Money, sometimes a lot of money, is required to participate in these mediums (although the Internet is changing this game entirely).   To now have strict limits on such expenditures, has the unintended (or perhaps entirely intended) consequence of limiting the amount and/or effectiveness of a single individual or organization’s ability to “speak out” and most troubling, to challenge our elected officials and their policies.

Why people would want to speak out?  In the same First Amendment, it states (in part) that “Congress shall make no law…abridging …the right… to petition the Government for a redress of grievances”  — in other words, to communicate to the government one’s thoughts or desires on how the government should or should not act.  Today, this activity is often referred to as lobbying.  As the number of issues that the government gets involved with grows, the incentive or requirement to lobby the government, to “speak out” in one way or another in an effort to affect the outcome, increases as well.

Originally, the number of issues that the government got involved with was very small, because the Constitution dictated as such.  So to petition the government, possibly spending money to do so, about an issue that the government was not going to address because it was legally bound not to would be an irrational act.  Then around the time of FDR, through a variety of new interpretations of the Constitution, suddenly many more issues were fair game for petitioning, that is, lobbying.  That trend has only accelerated to the present day.

So lobbying, therefore, is more important than ever before, and for entirely understandable reasons.  Politicians listen to the lobbying, because they feel they are in a position to do something about it, with “it” nowadays being just about anything.   With the stakes so high, the contributions to politicians’ campaigns soar proportionally.

Which brings us back to McCain/Feingold and the limiting of expenditures.  If there is greater-than-ever-before incentive to lobby, and yet the mechanisms to undertake that lobby are restricted, there is tension in the system.   Like excess pressure in any system, the pressure will seek to relieve itself any way it can, and again, government can not successfully figure out those ways in advance.   The collective will of the people is simply too complex.  Therefore, efforts to regulate or manage this pressure will certainly fail, which renders efforts to do so a waste of resources, and worse, a needless stimulation of civil discord.   With McCain/Feingold, Congress attacked the symptom and not the disease.

What would work instead?   Going back to root cause of the problem, namely, that government is now entangled with every aspect of our lives, in ways far more numerous than The Framers sought.   If we instead seek to strictly limit the role of government, we will necessarily limit the need to lobby.   The money spent doing so will drop as an uninteresting byproduct.