[EL] Too Brave for the "Home of the Brave"?
JBoppjr at aol.com
JBoppjr at aol.com
Wed May 2 08:22:32 PDT 2012
Rereading Dan's post, I still believe that he made both of the arguments
you say I "misrepresented." Well it is one thing if I am mistaken about his
argument but another that I misrepresented it. Why do liberals never
consider the possibility of an honest misunderstanding, but always seem to
assume that people have evil motives? I certainly did not misrepresent his
argument and don't even think I misunderstood it.
In any event, let me take this on "wealth and ideology do not correlate at
all, which would be an… interesting claim." It is true that at other times
and in other places, there was a strong correlation. For instance in
feudal times, when wealth was based almost exclusively on large land holdings
and numbers of serfs, wealth and ideology did correlate. However, as those
societies, mainly in Western Europe, transitioned to a capitalist economy,
the relationship between wealth and ideology broke down. The genius of
capitalism is that there are endless paths to wealth and anyone could become
wealthy. Of course, liberals have opposed this in innumerable ways,
preferring government to spread around the existing wealth rather than encouraging
new wealth creation.
We see this dynamic today. The wealthily constitute a very diverse group
in every way. Look at the difference between trust fund babies and the
newly successful entrepreneur. Their source of wealth, their outlook on life
and their ideology could not generally be more different. So it is
capitalism which has broken the correlation between wealth and ideology. I
celebrate this; liberals want to end it.
So once you see how capitalism works, you find that I have made a very
interesting claim. Jim Bopp
In a message dated 5/2/2012 10:36:45 A.M. Eastern Daylight Time,
kwalters at campaignmoney.org writes:
You're completely misrepresenting Dan's argument. He is emphatically not
saying that contributors/expenders selecting candidates (even who genuinely
agree with them in their heart of hearts) is quid pro quo. He's saying that
both the selection problem (for lack of a better term) and quid pro quo
are problematic for the same reason: that it "results in government actions
that benefit the providers at the expense of persons of average means or
less."
I would venture that for Dan and many others, whether the politician in
question is an "evil" person is beside the point. The important matter is
whether government is acting in the interests of the public at large or in the
interests of a select few.
Also, lobbing out
It appears that you just don't like the way democratic elections work.
What system do you prefer, a monarchy?
is a diversion and immaterial to the discussion. Saying that the method of
democratic elections can be improved is not advocating monarchy.
Finally, you pull out another strawman when you argue that "There is no
such thing as only people of average means behind one candidate and only rich
people behind another." Again, that's not anyone's argument. I think the
argument is more that selection bias affects which candidates are eventually
available to vote on, a filtering effect that would happen much earlier
than the general election. Saying that there is at least some big money
behind every party/ideology, even if that is true, is not the same as arguing
that wealth and ideology do not correlate at all, which would be an…
interesting claim.
-Kurt Walters
From: "_JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) " <_JBoppjr at aol.com_
(mailto:JBoppjr at aol.com) >
Date: Wed, 2 May 2012 08:08:39 -0400
To: "_dan at meek.net_ (mailto:dan at meek.net) " <_dan at meek.net_
(mailto:dan at meek.net) >
Cc: "_law-election at department-lists.uci.edu_
(mailto:law-election at department-lists.uci.edu) " <_law-election at department-lists.uci.edu_
(mailto:law-election at department-lists.uci.edu) >
Subject: Re: [EL] Too Brave for the "Home of the Brave"?
If the candidate already agrees with the contributor before he
contributes, as your statement of the "problem" says, then there is no quid-pro-quo.
That a contributor supports someone who already agrees with them on the
issues and as a result they win is not corruption or bribery. And if the
politician does what he said he would do in office is not evil but a honest
politician. And all the average people who voted for this guy benefited from
the monetary support the candidate received from the contributor since their
candidate won.
It appears that you just don't like the way democratic elections work.
What system do you prefer, a monarchy?
Furthermore, there are huge providers of money behind every political
party, every ideology and almost every candidate I can think of. So no matter
who wins there are rich people behind them. There is no such thing as only
people of average means behind one candidate and only rich people behind
another.
If you look at the overall demographics of voting in the U.S. The
Democrats are predominately supported by (1) the very rich and (2) the very poor.
So if your theory is that the rich line up against the poor, it is actually
flat wrong.
The Republicans, however, are supported by the great middle class from the
blue collar voter to the upper middle class.
But while I am envious that the Democrats get disproportionate support
from the wealthy, I don't think they should be prohibited because of their
foolishness. We just have to figure out how to compete with it. Jim Bopp
In a message dated 5/2/2012 1:05:30 A.M. Eastern Daylight Time,
_dan at meek.net_ (mailto:dan at meek.net) writes:
Why is this a problem? For the same reasons that bribery and quid pro quo
corruption are problems: Because it is antithetical to democracy, to the
principle of one-person one-vote, and to the goal that each individual
citizen has a meaningful say in electing government officers. Arranging,
through contribution and/or expenditure of huge sums of money, to elect only
those who agree with the providers of the money results in government actions
that benefit the providers at the expense of persons of average means or
less.
So let me ask you, why is bribery a problem? Why is quid pro quo
corruption a problem?
Dan Meek
_dan at meek.net_ (mailto:dan at meek.net)
10949 S.W. 4th Ave
Portland, OR 97219 503-293-9021
866-926-9646 fax
On 4/30/2012 11:00 AM, _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) wrote:
Why is this a problem?
The problem is that the contributors and expenders select the winning
candidates by funding their campaigns. They select persons who already share
their points of view.
There is no quid-pro-quo and this is just democracy -- supporting a
politician who agrees with you already. So it is corrupt to support a politician
who agrees with you! Jim Bopp
In a message dated 4/29/2012 5:55:19 P.M. Eastern Daylight Time,
_dan at meek.net_ (mailto:dan at meek.net) writes:
Anonymity of contributions (and/or independent expenditures), even if
somehow the officeholders could not find out who made the contributions or
expenditures (highly unlikely), is a solution to only a small part of the
problem. The problem is not primarily that contributions or expenditures
influence an officeholder who is otherwise a blank slate. The problem is that
the contributors and expenders select the winning candidates by funding their
campaigns. They select persons who already share their points of view.
It does not matter whether the candidate knows where the money originates.
Dan Meek
_dan at meek.net_ (mailto:dan at meek.net)
10949 S.W. 4th Ave
Portland, OR 97219 503-293-9021
866-926-9646 fax
On 4/29/2012 8:26 AM, Mark Schmitt wrote: Here's a third objection (and
there are surely others): Let's stipulate that the executive branch works as
you claim it does: agency officials routinely take arbitrary regulatory
actions to reward the sitting president's political friends and punish his
political enemies. Even if that were the case, your solution of blocking
campaign spending disclosure would work, at best, on only one side of the
problem, because it hides only one side of the transaction. It might make
retribution harder. But the party in power would still know exactly who its
friends are, and could reward them. But no one else would know. Journalists,
opposing campaigns, researchers, and congressional investigators and even
prosecutors would have no ability to determine whether the administration was,
in fact, rewarding its financial backers. And if the agency administrators
are the unprincipled political operatives you depict, they're also unlikely
to be ignorant about who the administration's political opponents are.
(Whether they are named on a campaign-affiliated web site or not.)
Ian Ayres' solution (in the 2002 book Voting with Dollars, with Bruce
Ackerman) of mandatory anonymity on contributions was theoretically appealing.
If every single legislative or administrative action could take place
behind a veil of total ignorance, on all sides, about who the donors were, that
might be as effective, in its own way, as total disclosure. But it's a
thought experiment, not a realistic proposal, because of course elected
officials will know exactly who their financial supporters are, even if they're
not sure of the exact amounts. And they know who their opponents' backers
are, just as they can know with reasonable accuracy what share of the vote
they'll get from a given county or state or demographic category.
In the dystopian "government by waiver" coupled with massive cronyism and
revenge that you depict, the broadest possible disclosure would be
absolutely essential, in order to actually reveal or test the patterns of
favoritism and revenge you see. For example, in your 2011 National Review article,
you cite three examples of the administration taking action against
businesses: the NLRB action against Boeing; the move by the HHS Inspector General
to exclude Forest Laboratories from participation in federal health
programs, following three criminal guilty pleas on fraud charges; and an EPA
rejection of Shell's permits to drill in the Arctic. Without disclosure, we would
have no evidence at all about whether these decisions were politically
motivated. With disclosure, they become testable propositions. As it happens,
Boeing is primarily a Democratic donor and, as a Chicago company, a huge
source of money for Obama; Forest Labs CEO Howard Solomon is exclusively a
Democratic donor and a big one; and only Shell is mostly a Republican
donor. These may have been bad administrative decisions, but there's no reason
to think they were retribution for political spending. Without disclosure,
we can't even try to answer that question.
All three actions have since been settled, dropped, or reversed, also by
administration officials.
On 4/27/2012 1:05 PM, Steve Hoersting wrote:
In the event I was not clear, the kind of retribution I of which I speak
is largely regulatory/economic.
I am not speaking just of crony capitalism. I am speaking of the
increased importance of political participation in an environment Richard Epstein
describes as "Government by Waiver." Among the ideas is that, as agency
power is subject to less review from the other branches, and more and more
statutes vest vast powers in administrators with repeated statements such as,
"The Secretary shall...," a businessman speaking against the team empowered
to decide, on a multitude of unverifiable factors, whether he will be a
medical provider at all in, say, a nationalized medical system is not
"Brave." Rather he is something beyond brave where the team, officeholder or
official he would speak against has shown a predilection to reward allies and
frustrate opponents, and has a 50-50 chance of winning.
Two objections I expect... And two quick replies:
1) Socialist Workers only protects dissidents and the like, certainly not
business leaders or the wealthy. Not so. The paradigmatic case -- NAACP
v. Ala. -- protected all contributors to the NAACP. This must have
included some of the wealthiest, established persons in Birmingham at the time.
The exemption goes to those who need it.
2) You'll never prove retribution. It is important to remember, this
isn't tort law. No one is saying the official is liable here. And the
official cannot say he would be "damaged" by full political participation,
particularly after Carolene Products. The "reasonable probability of retribution"
standard of Socialist Workers, Doe v Reed and the like, is within the
context of the 1st Am. -- and exists only to free political speakers. It
should be a far lower standard than in tort law.
Steve
On Fri, Apr 27, 2012 at 12:04 PM, Steve Hoersting <_hoersting at gmail.com_
(mailto:hoersting at gmail.com) > wrote:
Dear Rick,
When last you and I chatted about disclosure and its exceptions, I closed
on this point:
But ask yourself, for a later discussion: Can you imagine actions taken
with the aid of public disclosure that even "someone important" [and I'm sure
you meant J. Scalia] might likely say is too much, even for "the Brave?"
Everyone discussing disclosure exemptions, Doe v. Reed, Civic Courage and
The Brave do so on the premise of managing the problem of
citizen-on-citizen retribution. But they ignore a quickly shifting landscape. The real
question is quickly becoming this: What about the rights of a potential
speaker who witnesses or reads of government-on-citizen retribution visited on
others? This person wants to participate in the election, but doesn't want
to risk being the next one made an example of.
An op-ed today, by WSJ's Kim Strassel, brings this issue to the fore.
_http://online.wsj.com/article/SB10001424052702304723304577368280604524916.h
tml?mod=WSJ_Opinion_LEADTop_
(http://online.wsj.com/article/SB10001424052702304723304577368280604524916.html?mod=WSJ_Opinion_LEADTop)
If the regulatory process is soon to be so divorced from congressional
budgetary processes and meaningful judicial review -- and I am thinking now of
the powers vested in an IPAB or Dodd-Frank's new consumer czar -- the
prospect of post hoc regulatory decisions, made by winning officeholders who
have already demonstrated a willingness to reward friends and frustrate
opponents, can intimidate businessmen deciding whether to speak at all in the
election.
An answer to this drain on popular sovereignty is for business-men and
-women to 1) seek the Socialist Workers exemption 2) to campaign disclosure of
independent communications (not candidate donations) 3) for potential
speakers who 4) have observed the actions of abusive officials of any party,
want to speak against them in the election, and do not want to be "next."
These business men or women would file as John Does or Jane Does to protect
their anonymity while the district court adjudicates their application. If
the request is denied, they would have the choice to proceed or stay
silent -- forming a record for appellate review.
If no one receives the Socialist Workers exemption from a district court,
appellate courts will have to consider that fact when revisiting not only
Socialist Workers' efficacy as a safety valve, but the importance of "the
informational interest" itself. If no lower court will grant the exemption,
then, in the new wave of regulatory power sure to come, the Carolene
Products compromise -- that economic deprivations will not be handled in the
courts but rather in robust political processes -- is all but dead.
Even after the Judicial Revolution of 1937, and irrespective of who wins
in November, regulatory power is only legitimate if it is the result of
robust political processes.
Now back to Scalia, our discussion, and the Home of the Brave. Where
citizen-on-citizen intimidation is facilitated by disclosure, as in the Prop 8
cases and Doe v. Reed, Scalia wants citizens to toughen up and get some
"civic courage." But I believe where government-on-citizen intimidation is
facilitated by public disclosure Scalia would not look favorably upon this
at all. Scalia knows our Founders pledged their lives, fortunes and honor
in their 18th century campaign against the King. But these men were already
acting outside the political system of their day, not within it. Their
"Courage" cannot be the model Scalia would hold businessmen to while U.S.
courts are open. The reasonable probability of government-on-citizen
retribution can be a difference in kind.
It is conventional wisdom that Scalia likes what he calls "real"
constitutional law -- not just adjudicating rights under the first ten amendments,
but deciding questions about relative power distributed among co-equal
branches. Scalia would recognize that, after 1937 and the Carolene compromise
of 1938, regulatory legitimacy derives almost entirely from robust
political processes. I have to believe he would understand that those asked to
speak electorally in an atmosphere of a probable government retribution
knowing their is a 50-50 chance their side will lose the coming election are not
"Brave" but martyrs or fools.
Most importantly, Scalia knows that when robustness is chilled, the
Carolene compromise itself is called into question. Not only are speech rights
deprived, the electoral crucible that ensures popular sovereignty begins to
produce tainted results; and the very structure of government and relative
power among the branches risks being altered.
This is a theory I will be promulgating when I get the opportunity, in
addition to this old op-ed.
_http://www.nationalreview.com/blogs/print/266623_ (http://www.nationalreview.com/blogs/print/266623) If anyone else wants
to develop it, please be my guest.
--
Stephen M. Hoersting
--
Stephen M. Hoersting
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