[EL] Metaphysical Not Empirical: The Problems with McCutcheon
Benjamin Barr
benjamin.barr at gmail.com
Thu Apr 3 06:35:43 PDT 2014
I suppose I'm celebrating Chief Justice Roberts' pronouncement that First
Amendment soothsaying in the context of election law is dead. May it stay
that way.
The Breyerian view of First Amendment jurisprudence, similar to Professor
Schulz's statement about more diverse values informing First Amendment
concerns, brings in a whole universe of ghostly collective interests that
define who has the right to speak, in which ways, at what times, and under
what collective circumstances. The Breyerian notion that collective
interests may outweigh absolute protections of individual liberty is, of
course, antithetic to the Bill of Rights.
Don't care for gun nuts much? Invent a theory about modern democratic
values behind "peaceful cohabitation," have Pew write up a study supporting
the need for "diversified pacifism in the 21st Century," and inflate your
new modern value away to shut down their advocacy. Don't care much for eco
nuts? Invent a theory about modern democratic values behind "linear
capitalistic models of wealth creation," have AEI write up a study
supporting the need for "decreased emphasis of eco-terrorist intervention
in the modern marketplace," and inflate your new modern value away to
eliminate their advocacy. Either course you pick damages the First
Amendment and turns the Court's jurisprudence into something resembling an
accordion. This accordion is played by modern political elites to twist
and mold the contours of the First Amendment to their will rather than to
openly embrace a wild marketplace of ideas for everyone.
Campaign finance regulators, the speech police, legislators, and judges can
amply invent new theories of the day inflating "modern values" to silence
those they disagree with, those they think to be too powerful, those who
speak in a malevolent tone, and so on. Happily, Chief Justice Roberts has
reiterated a fundamental truth of the First Amendment--that we do not defer
to Professor Schultz, Justice Breyer, or anyone else's conception of the
public good in defining the boundaries of the First Amendment. We simply
stop the speech police dead in their tracks.
Speaking of values, I'm more of the mindset to examine documented
historical concerns about why robust speech rights are so very critical to
a well-functioning society. I examine that with my co-author, Steve Klein,
in "Publius was not a PAC," recently published in the University of Wyoming
Law Review--
http://www.uwyo.edu/law/_files/docs/wy%20law%20review/v14%20n1/barr-klein.pdf
Forward,
Benjamin Barr
On Thu, Apr 3, 2014 at 7:59 AM, Lorraine Minnite <lminnite at gmail.com> wrote:
> 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>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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