[EL] A second thought on Milyo
Ken Mayer
kmayer at polisci.wisc.edu
Wed May 2 10:42:33 PDT 2012
I have to come down on Milyo's side on this (gently). It's not that it is
impossible to make claims about the "public interest." Rather, it is that
it is impossible to objectively determine what the "true" public interest
is. The public choice argument is that you cannot get there by aggregating
individual preferences into a collective expression of those preferences,
and that claims to advance the public interest invariably involve the
subjective argument that "the public interest" is the same as "what I think
is in the public interest."
Kenneth R. Mayer
Professor, Department of Political Science
Affiliate Faculty, La Follette School of Public Affairs
University of Wisconsin - Madison
110 North Hall/1050 Bascom Mall
Madison, WI 53706
(608) 263-2286 (voice)/ (608) 265-2663 (fax)
-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Lowenstein, Daniel
Sent: Wednesday, May 02, 2012 12:35 PM
To: Milyo, Jeffrey D.; Kurt Walters; JBoppjr at aol.com; dan at meek.net
Cc: law-election at department-lists.uci.edu
Subject: [EL] A second thought on Milyo
I may have been too hasty in accusing Jeff of basing his argument on
a false premise. His original statement, with emphasis now supplied by me,
is "IF THE LAST 50 YEARS OF SOCIAL CHOICE THEORY HAVE TAUGHT US ANYTHING,
it's that there is no such thing as 'the' public interest...." If we
suppose that, in fact, social thought theory has NOT taught us anything in
the last 50 years, then I was wrong to call Jeff's statement false. It is
simply inapplicable.
Best,
Daniel H. Lowenstein
Director, Center for the Liberal Arts and Free Institutions
(CLAFI)
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: Lowenstein, Daniel
Sent: Wednesday, May 02, 2012 9:30 AM
To: Milyo, Jeffrey D.; Kurt Walters; JBoppjr at aol.com; dan at meek.net
Cc: law-election at department-lists.uci.edu
Subject: RE: [EL] Campaign finance reform and social choice
Prudence suggests caution before taking issue with Jeff Milyo, but
caution be damned, it is an overstatement for him to say "50 years of social
choice theory have taught us ... that there is no such thing as 'the' public
interest." Indeed, it was precisely 50 years ago that one of the three or
four most important founders of social choice theory, Anthony Downs,
published an article in Social Research entitled "The Public Interest: Its
Meaning in a Democracy." Jeff's 50-year period embraces the 40-year life
span of an influential journal, in which major social choice theorists such
as Downs and Mancur Olson frequently published, entitled "The Public
Interest." Jeff's own message claims that "there are some broad
correlations between democracy and good national outcomes." What can he
mean by "good national outcomes" other than outcomes that are in the public
interest? Indeed, outcomes that are in "the" public interest.
Jeff does not need to base his argument on such a falsely strong
premise. The plausible view of Downs and many, many others is that while
there is a public interest that can advance or decline, many and probably
most of the matters that make up day-to-day political struggles either pit
one legitimate interest against another and therefore cannot be resolved by
applying the concept of the public interest, or affect the public interest
so obliquely and uncertainly, that as a practical matter, again, it is not
helpful or at least not decisive to analyze in terms of the public interest.
That is a sufficient premise for the argument Jeff makes in his message.
Best,
Daniel H. Lowenstein
Director, Center for the Liberal Arts and Free Institutions
(CLAFI)
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: law-election-bounces at department-lists.uci.edu
[law-election-bounces at department-lists.uci.edu] On Behalf Of Milyo, Jeffrey
D. [milyoj at missouri.edu]
Sent: Wednesday, May 02, 2012 8:25 AM
To: Kurt Walters; JBoppjr at aol.com; dan at meek.net
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Campaign finance reform and social choice
The "home of the brave" debate has morphed into an argument that is more a
disagreement based on different premises about how democracy "works" .
(Kurt W. is romantic; Jim B. is enlightened.)
If the last 50 years of social choice theory have taught us anything, it's
that there is no such thing as "the" public interest; it is a fundamentally
nonsensical concept. Once we move away from the Romantic fantasy that it is
possible to construct a set of institutions that implement a General Will,
the argument for reform becomes a little more challenging. It is not
sufficient to just claim that money perverts democracy and this or that
regulation is obviously better simply because it reduces the flow of money
into campaigns and lobbying. So (putting aside the constitutional
constraints on reform), it is necessary to evaluate how reforms actually
work in practice, not just assert that any impediment to some special
interest influence is necessarily an improvement.
Democracy is a set of procedures that describe the rules of the game by
which special interests duke it out; that's it: no theoretical reason to
think you get good, wise or sensible policy out of such a process (although
thankfully, there are some broad correlations between democracy and good
national outcomes). Hindering some special interests, or blocking one route
that special interests influence politics have theoretically ambiguous
implications for outcomes.
So not only isn't it obvious what regulations accomplish in practice; in
fact, many empirical studies do not bear out the world-view of reformers
regarding the influential and pernicious role of money in American politics.
But if the perennial calls for more government control of politics teach us
anything, it is that you can never underestimate the statists' faith in
their own powers of introspection, even in the face of contrary evidence.
Jeff
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Kurt
Walters
Sent: Wednesday, May 02, 2012 9:31 AM
To: JBoppjr at aol.com; dan at meek.net
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Too Brave for the "Home of the Brave"?
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.ht
ml?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 If anyone else wants to
develop it, please be my guest.
--
Stephen M. Hoersting
--
Stephen M. Hoersting
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