[EL] Metaphysical Not Empirical: The Problems with McCutcheon

Thu Apr 3 10:19:47 PDT 2014

I think that one of the points of the McCutcheon, Citizens United, and Bennett, read together, is that the government can certainly promote the values of American democracy about which Professor Schultz so eloquently speaks.  And I think it is erroneous to attribute to those who are pleased with McCutcheon the belief that these values are not worth promoting.  The government can, in many instances, engage in such promotion -- it just cannot do it by restricting First Amendment rights.  Thus, the government may subsidize people running for office, but not in a way that creates a disincentive for others to speak.  It can fight corruption, but it cannot do so in a way that prevents people from engaging in peaceful political activities such as contributing money to the candidates of their choice, etc.

Not to sound too academic, the question is where does the line get drawn that separates these values from abridgment of other values, like free speech, personal autonomy, and the ability of those who are not in power to challenge those who are.  Roberts and the other justices in the majority in McCutcheon recognize that the line has already been drawn by the First Amendment.  To recognize that line does mean that these other values are not important.  They are just not as important, in a constitutional sense, as free speech and association.

Bill

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Benjamin Barr
Sent: Thursday, April 03, 2014 6:36 AM
To: Lorraine Minnite
Cc: Election law list
Subject: Re: [EL] Metaphysical Not Empirical: The Problems with McCutcheon

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<mailto: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<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 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<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

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

________________________________

Spam<https://antispam.roaringpenguin.com/canit/b.php?i=04LJpBwWk&m=e37a68cf30fa&t=20140403&c=s>
Not spam<https://antispam.roaringpenguin.com/canit/b.php?i=04LJpBwWk&m=e37a68cf30fa&t=20140403&c=n>
Forget previous vote<https://antispam.roaringpenguin.com/canit/b.php?i=04LJpBwWk&m=e37a68cf30fa&t=20140403&c=f>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140403/28cad546/attachment.html>