I appreciate your honest and cogent argument that defends both your right to challenge your political foes by writing essays and Sam Wyly's right to challenge his political foes by spending $2.5 million in New York, Ohio, and California to fund "issue" advertisements that attacked John McCain while supporting Geo. W. Bush's "environmental" credentials. Your honesty of intent and his dishonesty of intent may not be arguable: you are able to discover credible deniability for his deceit prior to indictment or accusation. To be clear, I am no supporter of either McCain or Bush (or Gore, for that matter). The issue I want to address is the posing of campaign financing in terms of first amendment rights alone.
I admit that the "sacred" scripture of our founding documents in this nation bear greater weight than do the slogans or aphorisms sported by either side in a transient political debate, be it second amendment questions of gun control or first amendment questions of political expression, such as flag burning or political campaigning. But then again, I agree with your libertarian essay that says there are no "natural rights." And so, perhaps the law of the jungle, the rule of power over principle, is best. Well, depending on the principle, of course, for instance is it "yours" or "mine?" And to decide the value of one over the other, we introduce the concept of "ought!" More on this.
To be sure, greater harm would likely come from permitting government to limit the kind or "amount" of speech permitted in promoting or detracting from a candidate's viability than would come from allowing unfettered debate, name-calling, lionizing, you name it. Free-for-alls have the advantage of being free for all to participate in as they will or won't. Free, of course, does not refer to "at no financial cost," of course.
Jonathan, you wrote that "Any scheme of campaign regulation that would allow government to intervene with Sam Wyly's ads would allow it to interfere with my essay as well. Let's not go there." Wise advice. Sort of.
There was a historical time when the "divine rights" of kings superceeded the desired rights of common people. It was a respected and inviolable principle of law that one person, the king, deserved complete deference, while all others, his subjects, owed complete allegiance and compliance to that kingly desire. In many places around the world, the belief in that "right" has expired. But the belief in the rights of those who dethroned the king are now held in highest esteem as inviolable and if not divine, then heavenly enough to deserve universal compliance. I am referring to property "rights," of course. Property "rights" over personal rights. I think we could define the last millenium as a stage on which this struggle took place. What will be the new millennial battle? I think it will be the endgame and crux of this conflict.
Briefly, the British Magna Carta has been presumed by many to be the Genesis of Western democratic stirrings when really its most liberating result was only an emancipation of the nobility from the tyranny of the divinity of the sovereign king. The driving force and power behind the usurpation of divine-right power by the nobility was their material power, their control of land and its resources, including those lowly humans who toiled on it.
Since that time, the regular expansion of empire has been one of material control ever-expanding, it seems to me. The "king" or the nation, the flag or the pontiff, the rallying-point was a symbol to ellicit ancient and deep-rooted fealty in the actions and responses of a still subjectified and subservient majority of people.
I am no Marxist. I do not adhere to the mere materialism of history's engine. Sociology may be awash in materialistic dialectical theory, and in that there may be some truth. As dogma, it remains unconvincing. But I see a progression that is not entirely materialistic, and yet can not at all avoid the momentum of history as it swings the wrecking ball of materialism into the path of human history and development. If, as I think occured, the property rights of the nobility became the directing factor in the evolution of law after the harnesing of regal sovereignty, then not by nature but by social evolution we have evolved a codification of law that permits property rights to contravene and supercede individual rights. As is our nature, since there is a tradition of such a social and legal attitude, we generally assume the "naturalness" of these laws and this tradition. In challenging this tradition by saying I perfer individual human rights over property rights, I admit my bias, state my position, and embrace the notion that "natural rights" are a fiction.
Among the list of FICTIONAL rights I oppose, in openly promoting individual freedoms, is the so-called "right" given specifically to corporations by Chief Justice Morrison R. Waite (in 1886), who said corporations are entitled to the same "rights" and to the same protections granted to real living people by the 14th amendment With the emancipation of slaves came the enslavement of all races to corporate superhuman longevity, wealth, unaccountability, and the enthronement of property "rights" as superlative and overriding of individual rights. In the wake of the Civil War, American history's most potent legacy may be the planned irrelevancy of the Bill of Rights in the shadow of rising corporate power, personified by the Robber Barrons.
"Incorporation" I would argue, is the legal concept we must examine if we are to come to some method of making decisions and passing judgements that do not merely pander to factions. The ex-humation of Hume to argue against the establishment of "oughts" is acceptible but unnecessary. There are even extant modern attempts to do away with such absolutisms, for instance those who propose we adopt E-Prime, a revision of English that abolishes the pseudo-verb of identity "to be," especially in its commonest usage "is." Hence, "John IS a bigot" could not be expressed that way. Rather, "John seems to me bigotted" would capture the sentiment, but also preserve the attribution and responsibility for the statement. "Air IS invisible" might require more explanation, as in "Clean air seems invisible." Or "Corporations ARE persons in the eyes of the law." That might get interpretted "Corporations have paid handsomly for legislation granting them citizenship rights with which they can compete against constitutional protections of individuals." Here, something of a statement in the contrast is made. Perhaps the truth is in the contrast.
But I have digressed far from the initial question. Is Wyly's $2.5 million spent to influence a primary election defendable on the same principle, to defend the same "natural right" that, Jonathan, you have when you write an essay that supports or condemns a candidate running for office? First off, you've said there are no "natural rights." Technically, I agree. There are only those rights we, as conscious people, are willing to fight for and defend once established. So. Do we have a "right" to fight for the abolition of the advantage in influence wielded by the monied and propertied aristocratic members of society? Well, if there are no "natural rights" and if "property rights" are among the fictions of historical "rights" along with "divine sovereign rights," then perhaps we are in the era when individual rights, for no damned good reason except that lots of people want 'em, will supercede both "divine sovereign rights" and "property rights" wielded by people who succeeded in bamboozling the majority for a long time into believing them supreme.
Now, if the majority can construct, out of thin air (and not out of nature) a general belief that a minority of propertied and priveledged tyrants has manufactured a system to perpetuate general misery so as to sustain a happy existence among their propertied class, does nature detect a fraud, or a compatriot? For what else did the king do, in his time? And what else did the nobles do, in their time? Perhaps the time has come for the general enjoyment of the benefits of individual effort. Property, that fiction of past empires, may have run its course as a material and artificial sovereignty.
To argue that Wyly's power play is equivalent to your eloquence is, please pardon me, to overvalue your eloquence, superlative though it may be. To say that his access to the conduits of "free speech," though millions of times more voluminous than you can hope to command, is no threat to your free speech is, I do not hesitate to say, naive. In terms of base value, his opinion and yours are equivalent democratically. In terms of your speech potential and his, yours does not exist by comparrison. It is not speech that Wyly wields, but volume. Enough to drown out me, you, and every body else he disagrees with. If you don't think there's a "right" to free speech, then maybe there's no "right" to oppose his tactics. But if you think it's worth fighting to be heard, rights or no rights, then the tyrannical tactics of Wyly, his buddy Bush, Gore and his bullhorns, and the rest of the loud-mouthed political establishment need to know that there is a whole population, a community of Americans, that rejects their lies and rhetoric and won't be silenced or shouted down by money.
As for passing laws to make sure it happens, unfortunately, the more outrageous public behavior becomes the more official controls are generally supported. If government wanna-bees want the "right" to not be controlled in their campaign spending, I guess they better stop trying to buy elections, deceive the public, promote cronyism and insider advantages. Otherwise the electorate might exercise their un-natural "right" to kick their asses and limit their behavior. Even if it ain't fair, it ain't un-natural either to want not to be the constant loser in a game of dog-eat dog. Hell, people will invent "rights" if they have to. If they can invent God, they can invent "rights." It may all seem unnatural, but then, if it exists, how can it be?