[EL] Campaign finance reform and social choice
JBoppjr at aol.com
JBoppjr at aol.com
Thu May 3 06:41:37 PDT 2012
Dan, thank you for your response. I have a comment regarding 2 of your
points:
(1) "I expected a more reasoned argument from Mr. Bopp."
I set out my reasoning in my comment before I ask you this question.
My reasoning was also set out in previous comments on this thread.
Again, my point was that you were saying that it is a problem that rich
people support candidates who agree with them. If it is a problem when
contributors support candidates who agree with them, and it is a problem when
a contributor supports a candidate who disagrees with him or her in order
to influence the candidates vote (quid-pro-quo) then no one can support any
candidate without it being a problem. You then cannot conduct elections at
all without these "problems.". So my questions was: what system do you
support?
(2) "How about "insurgent" candidates even in the Democratic and Republic
primaries who have not already been selected by the big-money donors?"
First, there are many "insurgent" candidates supported by big
contributors, but under the campaign finance contribution limits it is hard for them to
do it and thus become know. Stewart Mott's support of Gene McCarthy is one
example before contribution limits, and the rich folks who gave to Super
PACs supporting Santorum and Gingrich are others.
But you ask the question in a way that means that I can never give an
answer acceptable to you. You say tell me about "insurgents" "who have not
already been selected by the big-money donors." Well that means that as soon
as a big-money donor contributes -- the example is eliminated. There are
never any insurgents, who are selected for support by at least one-money
donor, who is also not selected for support by at least one-money donor.
Jim
In a message dated 5/3/2012 1:10:15 A.M. Eastern Daylight Time,
dan at meek.net writes:
Returning to Mr. Bopp's reply to me:
"It appears that you just don't like the way democratic elections work.
What system do you prefer, a monarchy?"
I expected a more reasoned argument from Mr. Bopp. Elections are more
"democratic" when there are reasonable limits on political contributions and
independent expenditures and when the identities of the contributors and
independent expenders are disclosed. Mr. Bopp seems to believe that the only
"democratic" election is one in which voters can be swayed by campaigns
funded by unlimited contributions and expenditures. I am not sure whether he
thinks the sources of those funds should be disclosed.
"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."
No, there are not huge providers of money behind political
parties/candidates besides the general election candidates of the 2 major parties. Can
Mr. Bopp really think of Green candidates with huge providers of money? How
about non-affiliated candidates? How about "insurgent" candidates even in
the Democratic and Republic primaries who have not already been selected by
the big-money donors? His thinking seems to be limited to only the
general election nominees of the 2 major parties and nothing else. But those
elections are typically between two candidates, each of whom has already been
selected by the large contributors and/or expenders.
"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."
Of course, that is not my theory and is not relevant to my statement.
Further, both the Democrats and the Republicans are predominantly supported by
corporations and wealthy individuals, while the Democrats also receive
most of the monetary support from unions. The Republicans use part of this
money to persuade low-income "Christian conservatives" to vote for them,
while the Democrats use part of this money persuade other low-income folks to
vote for them. The result is election of candidates selected by the big
contributors and independent expenders.
Poor folks make virtually no monetary political contributions. I recently
read that 94% of Americans make zero political contributions, while 99.5%
contribute less than $200. In Oregon, under a regime of no enforcement of
limits on political contributions, over 87% of the funds contributed to
campaigns in 2010 came in amounts of $500 or more per contribution. Poor
folks are not using money to select the candidates who win.
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 5/2/2012 10:52 AM, Milyo, Jeffrey D. wrote:
Overstatement? Well, I never!
Dan makes a good point that the claim about public interest is unnecessary,
but being told you are partly correct is sort of like being only mostly
dead... Ken M.'s response is correct and sufficient as a response, but in the
custom of this company, I'll expound further:
Dan is correct that there are special cases (e.g., the median voter
theorem) in which it may make sense to speak of a "public interest" (I would argue
even those cases); but as a general proposition, definitely not...
In general and in the abstract (absent institutional constraints) majority
rule processes are intransitive (unpredictable); further, even when
institutions constrain majority rule to some equilibrium outcome, there are in
general, multiple equilibria. Further, pure majority rule is but one process,
and different collective choice rules (institutions) can lead to different
outcomes even holding constant individual preferences. That is the basis for
my claim that the most important lesson from social choice theory in the last
50 years is that *in general* the concept of a public interest is
nonsense... (and I thought was being understated; I really think it is the most
important lesson from social choice *ever*... see all of the crimes against
humanity committed for some supposed greater good).
As for the claim that because there is some correlation between democracy
and what I called "good outcomes," there must be a notion of the public
interest that defines "good outcomes"... I only mean that when some scholars hold
up some outcomes as desirable, you may well find some correlation... but if
you want to say that this implies there exists a consensual public interest
to prevent famine or reduce infant mortality, I guess I could go along with
it that far... (although some current and historical governments might
disagree). I'll look forward to the evidence that campaign finance reforms
prevent famines or improve life expectancy... But if you mean something more
fine-grained by "public interest", that's nonsense -- on stilts.
Jeff
-----Original Message-----
From: Lowenstein, Daniel [_mailto:lowenstein at law.ucla.edu_
(mailto:lowenstein at law.ucla.edu) ]
Sent: Wednesday, May 02, 2012 11:31 AM
To: Milyo, Jeffrey D.; Kurt Walters; _JBoppjr at aol.com_
(mailto:JBoppjr at aol.com) ; _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)
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_
(mailto:law-election-bounces at department-lists.uci.edu)
[_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] On Behalf
Of Milyo, Jeffrey D. [_milyoj at missouri.edu_ (mailto:milyoj at missouri.edu) ]
Sent: Wednesday, May 02, 2012 8:25 AM
To: Kurt Walters; _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) ;
_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)
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)
[_mailto: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_ (mailto:JBoppjr at aol.com) ; _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)
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) _<mail
to:JBoppjr at aol.com>_ (mailto:JBoppjr at aol.com) " <_JBoppjr at aol.com_ (mailto:JBoppjr at aol.com)
_<mailto: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) _<mailto:dan at meek.net>_
(mailto:dan at meek.net) " <_dan at meek.net_ (mailto:dan at meek.net) _<mailto: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) _<mailto: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)
_<mailto: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) _<mailto: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) _<mailto: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)
_<mailto: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) _<mailto: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) _<mailto: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 a
bout 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) _<mailto: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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