[EL] Campaign finance reform and social choice
Joseph Birkenstock
jbirkenstock at capdale.com
Thu May 3 09:43:26 PDT 2012
So in sum: (1) except for those states and instances where I'm right,
I'm wrong (and in fact, the American Revolution was not about democratic
accountability, or otherwise shrugging off the institutions of the
monarchy, instead it was about entrenching accountability to a similar
but different group of rich white guys - like, me, for instance), (2)
there really aren't religion clause*s* in the First Amendment, there's
basically just the free exercise clause and then a very general warning
against a single official government religion, and (3) Republicans are
not in fact dedicated to undermining democratically accountable
institutions.
Oh, and (4), I'm dedicated to limiting what people would say in
criticism or support of candidates because, like the overwhelming
balance of the last century's worth of legislators, executives, and
judges, I favor reasonable rules aimed at limiting the impact of private
money on public policy.
Too busy today to continue this exchange, but I do promise to duly note
those observations.
Best,
Joe
From: Joe La Rue [mailto:joseph.e.larue at gmail.com]
Sent: Thursday, May 03, 2012 11:46 AM
To: Joseph Birkenstock
Cc: JBoppjr at aol.com; law-election at department-lists.uci.edu
Subject: Re: [EL] Campaign finance reform and social choice
Hit send before I meant to. Sorry. Wanted to add this:
I think the Founders would be aghast at the efforts of some to restrict
speech. I can earn money, but you and the other reformers want me to
only be able to use a small part of it to speak words that I want to
say. As the Ninth Circuit recognized in Long Beach Area Chamber of
Commerce v. Long Beach, 603 F.3d 684, 686 (9th Cir. 2010), "more speech"
often means "more money." Yet you and other reformers would have
government tell me I can't spend my money, that I worked hard for, in
order to engage in speech I want to engage in. You would limit what I
can say in criticism of one candidate, or in support of another.
I'm offended by that and think the Founders would be aghast at it.
Joe
___________________
Joseph E. La Rue
cell: 513.509.6494
email: joseph.e.larue at gmail.com
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On Thu, May 3, 2012 at 8:34 AM, Joe La Rue <joseph.e.larue at gmail.com>
wrote:
Joseph, you wrote:
Actually, I thought we fought the revolution to replace
government by the landed gentry and the ecclesiastical institutions of
the monarchy with governing institutions accountable to every citizen on
a per-person basis (i.e., not accountable in proportion to their real
estate holdings or other wealth, or to the quality of their faith, but
equally accountable to every citizen).
Actually, you thought wrong. In the early years of the Republic, the
various states determined who could vote. While there were some
exceptions, generally they restrictred suffrage to white males who owned
property. While it is true that black slaves were not considered
citizens of the Republic, in some places free blacks were. And in all
places, white women were considered citizens. Yet these citizens could
not vote. Thus, your thought that the Revolution was to make government
"equally accountable to every citizen" is wrong. In reality, it was "the
landed gentry" who had "real estate holdings" and "wealth" who continued
to dominate government in the early days of the Republic. They were the
ones who could vote, and they were the ones who were elected to serve
(consider the vast landholdings of Washington and Jefferson, for
example).
Further, the American Colonists were not subject to "ecclesiastical
institutions," and it is doubtful (at least to me) that they fought the
Revolution to be free of such. Certainly, once the Revolution was won,
the Founders recognized the danger of a federal, state church. That is
no doubt why the First Amendment was crafted: the Founders wanted to
keep government out of the churches, and did not want a state church
such as England had. But I seriously doubt that was a motivating factor
for fighting the Revolution.
Additionally, in the early days of the Republic and well into the modern
era, some states had requirements that those who served in government
profess faith in God. While that has been ruled unconstitutional as a
violation of the First Amendment, it is simply wrong to state that the
Founders
fought the Revolution without thought to the faith of the men who would
govern the Republic. The "quality of their faith" was actually very
important to many in the Founding generation, as well as subsequent
generations.
Finally, you said:
one of our major political parties is now dedicated to
undermining those democratically accountable institutions under the
assumption that hamstringing the elected government will leave us all
less governed.
In response, I can only say, "Oh, please." Republicans don't want to
undermine democratically accountable institutions. I think an argument
could better be made that the current President is undermining them with
the appointment of his many and assundry czars, most of whom hold
positions that should have required Senate confirmation.
Joe
___________________
Joseph E. La Rue
cell: 513.509.6494
email: joseph.e.larue at gmail.com
CONFIDENTIALITY NOTICE: This e-mail message, including any attachments,
is for the sole use of the intended recipient(s) and may contain
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On Thu, May 3, 2012 at 7:54 AM, Joseph Birkenstock
<jbirkenstock at capdale.com> wrote:
Actually, I thought we fought the revolution to replace government by
the landed gentry and the ecclesiastical institutions of the monarchy
with governing institutions accountable to every citizen on a per-person
basis (i.e., not accountable in proportion to their real estate holdings
or other wealth, or to the quality of their faith, but equally
accountable to every citizen).
Of course, one of our major political parties is now dedicated to
undermining those democratically accountable institutions under the
assumption that hamstringing the elected government will leave us all
less governed. Strikes me as either comically short-sighted, or as just
a canard for the redistribution of governing power back to the gentry
and to the church, but what do I know...
________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836 <tel:%28202%29%20862-7836>
www.capdale.com/jbirkenstock
*also admitted to practice in CA
________________________________
From: law-election-bounces at department-lists.uci.edu on behalf of Joe La
Rue
Sent: Thu 5/3/2012 10:22 AM
To: JBoppjr at aol.com
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Campaign finance reform and social choice
Jim, I am surprised you don't understand. It's BAD for people to work
hard, earn money, and then do whatever they want with it - especially if
they want to use it to speak about things that really matter, like who
we should elect to govern us. Better for the government to tell us what
to do with the money we earn. I mean, can you imagine the HORROR that
would ensue if rich people were actually free to spend their own money
on the speech they want to engage in? After all, we fought a revolution
so government could control us and tell us what do do with our own
property. Oh, wait ...
On May 3, 2012, at 9:41 AM, JBoppjr at aol.com wrote:
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
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]
Sent: Wednesday, May 02, 2012 11:31 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
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