[EL] Metaphysical Not Empirical: The Problems with McCutcheon

[Schultz, David A.]

So I read the McCutcheon opinion and the post decision debate on this
listserv.  Here is my take that I posted on my blog.  Since all the rest of
you already seem to have cornered some journalistic space on the decision,
any journalist who wants to reprint this for their readers you have my
blessing.  I have printed the blog below.

The actual blog is located at
http://schultzstake.blogspot.com/2014/04/metaphysical-not-empirical-problems.html.

Metaphysical Not Empirical:  The Problems with McCutcheon



            The Supreme Court decision *McCutcheon v F.E.C.* striking down
aggregate contribution limits is flawed for many reasons.  Critics will
complain that the Court adopted a crabbed and narrow definition of
corruption, or that it seemed inured to the role of money in politics, or
that it is one more extension in giving more rights to the wealth and in
sanctifying one dollar, one vote as the defining philosophy of the Roberts'
Court view of American democracy.  All these criticisms have merit.  But
the deeper flaws lie in something more fundamental-the decision is the
triumph of legal metaphysics, devoid of a real theory or understanding
regarding how American democracy should and do operate in the real world.

            As I argue in my new book  *Election Law and Democracy Theory, *the
most curious feature about election law scholarship and adjudication,
including that by the Supreme Court, is the degree to which it is
theoretically rudderless.  What is meant by rudderless?  Simply put, it is
the extent to which the critical debates and issues that are at the center
of many election law disputes are often addressed in the most minimal of
matter, generally without regard to any broader sense of a political theory
which should guide decisions.  In reaching decisions addressing political
speech versus promoting the integrity of elections in the area of campaign
financing, or ballot access versus electoral integrity, voting rights
versus fraud prevention, or any other innumerable issues, election law
scholars and judges seem to assume that the matters at stake are devoid
from a broader political or democratic theory context.  This is what
occurred in *McCutcheon*.

            On one level the Supreme Court yet again issued a decision in
which it examined one issue about American politics and elections-the role
of money or the right of individuals to make political
contributions-without adequately considering the broader impact of that
decision on the actual performance of American democracy.  The Court treats
in isolation one aspect of our political democracy-the right of an
individual to spend money-without considering other competing values and
how they come together to form a more complete theory about government,
politics, and elections.  Yes individuals may have a right to expend for
political purposes, and such an act may further an important value of free
speech, but that is not the only act and value that must be furthered or
considered in a democracy.

            Democratic theorists such as Robert Dahl point out that a
theory of democracy includes several values, such as voting equality,
effective participation, enlightened understanding, control of the agenda,
and inclusion.  For each of these values there is a need to construct
institutions that  help sustain them or give them meaning.   Effective
participation includes institutions that create for example free and fair
elections, opportunities for non-electoral participation, and competitive
parties. However, none of these values operates in isolation; a real
concept of democracy requires that one understand how they interact, coming
together to form a fuller theory of American Democracy.

            Democratic theories have ontologies.  Each theory  defines its
object of inquiry, the critical components of what makes a political system
work, and what forces, structures, and assumptions are core to its
conception of governance.  This ontology will not only include a discussion
of human nature but also examination of concepts such as representation,
consent, political parties, liberty, equality, and a host of other ideas
and institutions that define what a democracy is and how it is supposed to
operate.  The Supreme Court, along with most election lawyers, have no
sense of theory. In *McCutcheon*, the Supreme Court isolated one value or
practice-expending money-in isolation from many others, asserted that such
a practice was protected by the First Amendment, and either called it a day
or mistook such a claim as a theory. This is hardly the case.  At best it
is the most minimal concept of a democracy, at worst it is no theory.  Among
many election lawyers they have made the same mistake, confusing advocacy
of a single claim with a broader theory of democracy.  Or in the contrary
their view of democracy is reductionist-it is about saying that the
allocation of political power and influence is not different than the
selling of cars or toothpaste.  Markets may be great ways to allocate
commodities, but they are not appropriate tools to sell or distribute
political power or democratic influence.  For those who think it is, they
are confusing politics with economics, elections with markets.

            Thus on one level the Supreme Court in *McCutcheon* had no
theory and it was all empirical-some individuals denied the right to max
out their political contributions on as many candidates and organizations
as they want.  But in another sense the decision was all theory and not
empirical.  The Supreme Court had its own metaphysics about how it thought
people acted. The majority opinion waltzed out a series of hypothetical
ways money could be diverted in elections was conjecture at best, devoid of
real empirical evidence.  Moreover, the majority opinion, along with many
of the defenders of it, make many assertions that simply lack empirical
foundation.  Is it real true that the decision means groups and individuals
will be more likely to shift giving to candidates and away from third party
groups?  Are political parties strengthened by taking more special interest
money?  We have no real evidence to support these claims.

            For the most part, the assumptions made by the Court and many
election lawyers are devoid of empirical political science analysis.  They
are highly rationalistic models about human behavior, akin to the
theoretical  models economists and other social scientists often make about
worlds and behavior they do not exist in reality.  Decisions such as
*McCutcheon* are what many of us call formalistic.  They ignore the wisdom
of Supreme Court Justice Oliver Wendell Holmes, Jr.  Who once declared:
"The life of the law has not been logic; it has been experience."  It
should be experience, evidence and data, and not blind assertions or
theories, that guide decisions about the role of money in politics.
            Overall, the real failure of *McCutcheon* is that it is both
too theoretical and not sufficiently theoretical, and too empirical and not
empirical enough.  It ignores how an American democracy should operate, and
how its institutions do actually work both within a comprehensive theory
and in the real world

-- 
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013
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