[EL] Metaphysical Not Empirical: The Problems with McCutcheon

Wed Apr 2 20:28:09 PDT 2014

Thankfully, on page 17 of the slip opinion, the Chief Justice puts these
types of odd, Breyer-like, collectivized values to rest.  With some hope
courts can get back to focusing on one value the First Amendment does
advance--non-interference in the political lives of its citizens.

"But there are compelling reasons not to define the boundaries of the First
Amendment by reference to such a generalized conception of the public good.
First, the dis- sent's "collective speech" reflected in laws is of course
the will of the majority, and plainly can include laws that restrict free
speech. The whole point of the First Amend- ment is to afford individuals
protection against such in- fringements. The First Amendment does not
protect the government, even when the government purports to act through
legislation reflecting "collective speech." Cf. United States v. Alvarez,
567 U. S. ___ (2012); Wooley v. Maynard, 430 U. S. 705 (1977); West
Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943)."

Forward,

Benjamin Barr

On Wed, Apr 2, 2014 at 11:03 PM, Schultz, David A. <dschultz at hamline.edu>wrote:

> 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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