[EL] Democratic accountability

[Bill Maurer]

Joe (B).  I respectfully disagree with your statement that the Revolution was about "democratic accountability."  The Founders were very concerned by democratic governance and created a system by which the whims of the majority of citizens would not, and could not, control-the Electoral College, the (Legislature-appointed) Senate, a republican (versus democratic) form of government, tripartite government, the federal system, etc.  The entire idea was to protect individual liberty from a centralized monarch at one extreme and the wishes of 50% + 1 on the other-indeed, it is when a particular violation of liberty is most popular that we need the protections of the Constitution and the intervention of an engaged and independent judiciary.  The recent book, "Ratification" discusses the intent of the founding generation very nicely.

In other words, the Founders created a system designed to ensure that governing did not simply become two wolves and a sheep voting on what's for dinner.

Bill

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joseph Birkenstock
Sent: Thursday, May 03, 2012 9:43 AM
To: Joe La Rue
Cc: JBoppjr at aol.com; law-election at department-lists.uci.edu
Subject: Re: [EL] Campaign finance reform and social choice

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]<mailto:[mailto:joseph.e.larue at gmail.com]>
Sent: Thursday, May 03, 2012 11:46 AM
To: Joseph Birkenstock
Cc: JBoppjr at aol.com<mailto:JBoppjr at aol.com>; law-election at department-lists.uci.edu<mailto: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
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On Thu, May 3, 2012 at 8:34 AM, Joe La Rue <joseph.e.larue at gmail.com<mailto: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<tel:513.509.6494>
email: joseph.e.larue at gmail.com<mailto: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 confidential and privileged information or otherwise be protected by law. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

On Thu, May 3, 2012 at 7:54 AM, Joseph Birkenstock <jbirkenstock at capdale.com<mailto: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<http://www.capdale.com/jbirkenstock>
*also admitted to practice in CA


________________________________

From: law-election-bounces at department-lists.uci.edu<mailto: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<mailto:JBoppjr at aol.com>
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


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<mailto: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<mailto: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<tel:503-293-9021>
866-926-9646<tel: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<tel: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

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