A comment on my post of 8-March, McCain and McAble, prompted a reply that turned into this post. I’m grateful for the comment, since it challenged me to articulate more fully what I think is wrong with McCain-Feingold Campaign Finance Reform.
I repeat the comment here for ease of use. JPM writes:
If no distinction is made between the construct and the application, one can easily and logically conclude that CFR is minimally a farce, and moreover, a seeming infringement upon civil liberties. However, if the distinction is not made vis a vis CFR, an equal intellectual co-mingling would also suggest that government’s inability to implement “remedies” without gross politicizing and rampant incompetence means that government has no role in our lives. If one is uncomfortable with that intellectual absolute (as literally framed by the Constitution), then we’re all whores and just negotiating the terms and service.
The demonstrable “fact” is that with or without government intervention, there is no such thing as truly “free speech” when it involves communications among groups of people. It’s either limited by inconsistent, politically hackneyed limits a la CFR or limited by the inability to gain access vis a vis the economically disenfranchised. Regardless of CFR’s pathetic implementation by government, that doesn’t make the construct or issue go away. And once that’s acknowledged, the blaming [of] CFR on some conceptual level is intellectually akin to saying the civilized world should give up the fight of terrorists because our current “solutions” have not yet “solved” the problem. JPM
The cure for syphilis, in the age of Louis XIV, was a nice draught of mercury. This did considerable damage to the syphilis bacilli, in some cases curing the disease. It also did considerable damage to the patients, many of whom experienced severe brain damage.
This is a good analogy for CFR, failing only at the point where we contemplate the Sun King deciding each of us needs the cure whether we’re symptomatic or not. Louis was an absolute monarch, but he did not issue such an edict.
I agree that distinguishing construct from application is a key issue, and I think my point about government by the opinion of “excellent men” vs. government by law speaks to it. In the present case, the McCainites are caught in a prejudice immune to such moral distinction.
To them, there is no difference between construct and application. Therefore, it is to them, and their law, that we must present our grievance; not to some other construct or application. If some legislator comes along who can make this distinction, it would be another debate.
With this particular government intervention there is less freedom. Other interventions may require other responses.
CFR is an infringement on civil liberties. So are other things. Some of those things we’ve agreed to accept; crying “Fire” in a crowded theater being the hackneyed example.
CFR is not doing that, it is crying “shut up” in the public square.
CFR is an infringement on civil liberties. We need to ask whether it is reasonable, given both government ineptitude and the natural desire to prevent worse consequences, to accept a given infringement.
SCOTUS says CFR is an acceptable infringement. I disagree.
For the moment, I’m allowed to publish that (this) opinion. If a candidate in the next federal election makes this same opinion a key aspect of his campaign, however, the chances are good that I will be committing a crime if I link to his speeches.
Recognizing government as incompetent does not carry us all the way to chaos. One needn’t postulate anarchy in order to object to a specific infringement on civil liberty as beyond the federal government’s constitutional power.
The First Amendment, in common with the rest of the Bill of Rights, is about restricting the power of government. The construct is, “Here, the government has no role in our lives.” The application has been insufficiently cognizant of that, but we’re only whores if we let our sense of justice override the idea of equality of opportunity in favor of equality of outcome.
I agree that the ability to speak to large numbers of people correlates positively with economic means. A less strong, but still significant, positive correlation exists with respect to intelligence, articulateness, charisma, audience ability to listen, luck, and the number of movies in which you have starred.
Where does regulation designed to mitigate the unfairness of life reach a limit?
The idea that economic means can in some way restrict the ability to speak is true and irrelevant. It is not at all the same thing as restricting freedom of speech as codified in the First Amendment.
Before CFR, if I was willing to mortgage my house to the hilt, max my credit from all sources and solicit money from my friends, I could mount an ad campaign critical of any candidate in the 60 days prior to an election. After CFR, I cannot. I am still able, but no longer free.
I’m also prohibited from calling a press conference of any consequence because I didn’t even have a bit part in Fahrenheit 9-11.
Those with more economic resources than my own would find significant personal advocacy easier. Those with less would find it more difficult. Before CFR neither class had their speech restricted by law. Law and circumstance are not equivalent.
George Soros is economically better situated to “speak” than am I. One of the equalizing factors here used to be my ability to speak politically by contributing to, say, the NRA. My voice could be amplified by joining together with like minded individuals. >Thanks to CFR, that opportunity is also gone.
I can find no constitutional provision for enforcing equality of outcome. CFR pretends to do that. In fact, all it does is decrease equality of opportunity.
Contemplate this solution: instead of drafting ever more complex rules about what can constitute speech protected by the First Amendment, let’s just require total disclosure of all sources of all money for every Institute, Foundation, and Politician. Let’s have that information readily available.
And then let’s stop. We have no obligation to equal outcome in reading or thinking either, however much John McCain may want to bend us to his own definition thereof.
1 thought on “Construct vs. Application”
The following excerpt speaks to a very important point:Recognizing government as incompetent does not carry us all the way to chaos. One needn’t postulate anarchy in order to object to a specific infringement on civil liberty as beyond the federal government’s constitutional power.The First Amendment, in common with the rest of the Bill of Rights, is about restricting the power of government. The construct is, “Here, the government has no role in our lives.” The application has been insufficiently cognizant of that, but we’re only whores if we let our sense of justice override the idea of equality of opportunity in favor of equality of outcome.Comments:If one aspires to equality of outcome, one must talk to a source much more powerful than the U.S. Constitution. Depending upon one’s inclination, the Creator and/or Big Banger him/herself would seemingly be the appropriate extension number. And favoring equality of outcome does not raise Constitutional questions, while also being quite attractive as written– who wouldn’t favor the equality of outcome where all are equally happy, healthy, and computer literate!So this road takes us nowhere. Those who support freedoms (i.e., of speech) can, it seems, logically posit that, to talk about Constitution freedoms that are ostensibly part of the civil liberties extended to all, yet limited to the six Rupert Murdochs of the world, may meet the pin head-dancing of strict constructionists, yet practically prevent a gazillion more people from actually having access to those forms of speech than Rupert does.So the discussion then goes to, wait a second, I only want to talk about certain kinds of freedom; the kind that can be bandied about by the elite– not those that actually affect the lives of the millions of citizens. Because if we give an inch that maybe certain liberties might require more than a “clear and present danger” as defined a century ago, who knows what kinds of ethical, as well as legal issues we’ll have to face.That is why the construct must be separated from the application– and the construct of freedom can sometimes be defined as extending liberties as well as preventing governmental interference.Thanks for the opportunity to voice an opinion– and for being able to ask whether a form of “free speech”– such as, that a candidate in South Carolina who is trailing in the polls days before the election should have constitutional protection enabling push polling and assertions that his opponent fathered an illegitimate, minority child?JPM