[EL] one final thought on Campaign finance reform and social choice

[David A. Schultz]

I realize I am entering this discussion late but I am off in Mexico giving lectures so I just accessed this thread.

The Lowenstein-Milyo debate in many ways cuts across the Madisonian democracy/pluralist debate which, among other things, contests whether a real public interest exists.  There is no question that public choice theory, pluralism, and Kenneth Arrow challenged the idea of a public good but they did so by redefining democracy. 

Is there a distinct ontological public good distinct from personal preferences?  On one level the answer is no, but there is still something regulative (in a Kantian sense) in believing that there is some type of Rousseauean common good.  My cynicism in life has not yet reached the point of degenerating to the belief that justice or the common good is simply what is in the interest of the stronger (Thrasymachus of Plato's Republic) or that the polis should simply reify the power and economic inequalities of the marketplace.  There hopefully is some good--perhaps a thin theory of one in Rawls' view--that transcends simple rewarding of preferences of winners.



David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
School of Business
570 Asbury Street
Suite 308
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
Name of the inaugural 2012 Faculty Row SuperProfessors 
>>> "Milyo, Jeffrey D."  05/02/12 7:01 PM >>>
Thanks Dan; where would I go to learn more about this conception of the public interest?  (That's a serious question; I'm looking for a reference so I can read up on it; if anyone wants to suggest some summer reading for me, I'd be grateful). 

But my question also sounds like a snarky comment, because you make the public interest sound like it is just a normative preference; or maybe it is like pornography: we philosopher-kings know it when we see it, even if others disagree.  I don't think the appeal to consensus helps you though; if you give any precise definition of "consensus" (supermajority?), then you have a collective choice rule and you are back in the world of Arrow's Impossibility Theorem and the like...  so we're cycling!

Jeff



-----Original Message-----
From: Lowenstein, Daniel [mailto:lowenstein at law.ucla.edu] 
Sent: Wednesday, May 02, 2012 6:44 PM
To: Milyo, Jeffrey D.; Ken Mayer (kmayer at polisci.wisc.edu)
Cc: law-election at department-lists.uci.edu
Subject: RE: [EL] Campaign finance reform and social choice

        I believe Jeff is making the point that for a number of reasons, under most circumstances government policy cannot be made to reflect voter preferences.  I agree.  That is perhaps one reason why the founding documents of our country say little about the preferences of voters and what they do say is as likely to be negative (factions) as positive (republican principle).  The Declaration of Independence states that a government's just powers are based on the consent of the governed.  "Consent" itself is an elusive term, but I take it to mean something like this: in the long run, on the most fundamental points, the operations of the government will be found tolerable by most of the people and will be reasonably subject to change when most of the people demand it.  By that standard, I believe the United States and most of the countries that are commonly regarded as democracies can be said to be based on the consent of the people.  Perhaps our social choice theorists would
  get further if they analyzed consent rather than preferences.

        Where I disagree with Jeff is his use of the term "public interest" to refer to a (generally impossible) system in which government policy consistently reflects the preferences of the voters.  That is not what most people mean when they use the term "public interest."  What they mean by the public interest is what is good for the country as a whole.  Jeff's examples are good ones.  Avoiding famine and avoiding increased incidence of infant mortality are in the public interest.  (I leave aside possible circumstances in which one or both of those results are necessary to avoid other consequences that are arguably worse.)  They are in the public interest whether or not voters agree on what particular policies are likely to bring them about.

        For all I know, there may have been a near consensus in Italy in favor of invading France and thereby joining World War II in 1940.  Even if that was the case, invading France was contrary to Italy's interest.  My point is that the public interest, as that term is used by most people, refers to the conditions prevailing in a country, not primarily to the policymaking process.  Process is not entirely irrelevant.  I believe it would be contrary to the public interest for the government to operate permanently without regard to the consent of the people, no matter how good other conditions might be (though all things considered, at a particular time and in a particular place, that might be more in the public interest than any alternate arrangement).  But the public interest is not solely nor even predominantly a matter of process.


                                                    Best,

                                                    Daniel Lowenstein
                                                    Director
                                                    UCLA Center for the Liberal Arts and Free Institutions (CLAFI)
                                                    310-825-5148
                                                    lowenstein at law.ucla.edu


-----Original Message-----
From: Milyo, Jeffrey D. [mailto:milyoj at missouri.edu]
Sent: Wednesday, May 02, 2012 10:53 AM
To: Lowenstein, Daniel; Ken Mayer (kmayer at polisci.wisc.edu)
Cc: law-election at department-lists.uci.edu
Subject: RE: [EL] Campaign finance reform and social choice

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 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" >
Date: Wed, 2 May 2012 08:08:39 -0400
To: "dan at meek.net" >
Cc: "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 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

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 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 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

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 > 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.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  If anyone else wants to develop it, please be my guest.

--
Stephen M. Hoersting



--
Stephen M. Hoersting




_______________________________________________

Law-election mailing list

Law-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election

--
Mark Schmitt
Senior Fellow, The Roosevelt Institute
202/246-2350
gchat or Skype: schmitt.mark
twitter: @mschmitt9




_______________________________________________

Law-election mailing list

Law-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election


_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120503/6674c8b6/attachment.html>