[EL] Metaphysical Not Empirical: The Problems with McCutcheon
Lorraine Minnite
lminnite at gmail.com
Thu Apr 3 04:59:01 PDT 2014
I think this completely misses David's point, which I take to be an
argument against ideology in the law masquerading as reason.
Non-interference in the political lives of citizens would result in the
Court refraining from exercising any judicial review.
Lori Minnite
On 4/2/2014 11:28 PM, Benjamin Barr wrote:
> 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 <mailto: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 thathelp 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 theorydefines 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
> empiricalfoundation.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 theoreticalmodels 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 <tel:651.523.2858> (voice)
> 651.523.3170 <tel: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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