[EL] McCutcheon

[Benjamin Barr]

John,

This is Breyer's usual three card monte. To collectivize the Bill of Rights
he relied on the writings of Benjamin Constant in his Active Liberty tome
(expanding all the positive "values" implicated by the First Amendment -
none of which seem relevant to the American founding or history of the
First Amendment). This dissent is just a continuation of the same bad
theme.

This profound difference in viewing the Bill of Rights as a charter of
"negative" or "positive" liberties is also at root what separates many
reformers from free speech advocates on this listserv and more broadly.

Forward,

Benjamin Barr

Sent by my Android device. Please excuse any typographical errors.
On Apr 4, 2014 6:06 PM, "John Tanner" <john.k.tanner at gmail.com> wrote:

> Not to change the subject, but I'm surprised that no one has remarked on
> the dissent's invocation of Rousseau's Social Contract, which was far more
> influential on the French Revolution (and particularly the thought of St
> Just and Robespierre) than the American, where the strong preference for
> Locke and Montesquieu has pointed in a different direction.  It seems odd,
> off-key and, wandering well away from the subject, I wonder if it prompted
> the counter-invocation of Burke - and the brandishing of the dissent's
> impolitic choice of the word, "collective."
>
>
> On Thu, Apr 3, 2014 at 8:49 AM, Tyler Culberson <tylerculberson at gmail.com>wrote:
>
>> These figures derived from a Bob Biersack piece at OpenSecrets:
>> https://www.opensecrets.org/news/2013/09/mccutcheons-multiplying-effect-why.html
>>
>>
>> On Thu, Apr 3, 2014 at 8:45 AM, Tyler Culberson <tylerculberson at gmail.com
>> > wrote:
>>
>>> Doug,
>>> From Commissioners Ravel and Weintraub's statement yesterday, "In fact,
>>> only 646 donors reached the biennial limit during the 2012 cycle."
>>>
>>>
>>> On Wed, Apr 2, 2014 at 7:24 PM, Scarberry, Mark <
>>> Mark.Scarberry at pepperdine.edu> wrote:
>>>
>>>> Can we distinguish between two "anti-corruption" interests that could
>>>> be seen as being addressed by the dissent in McCutcheon?
>>>>
>>>>
>>>>
>>>> The first is the interest in keeping lines of communication open
>>>> between ordinary people and their elected representatives, so as to make
>>>> representative government responsive to the people **between elections**.
>>>> High levels of donations cause representatives to listen only (or mostly)
>>>> to the rich donors, breaking the link between ordinary people and their
>>>> representatives. The voice of the ordinary person is drowned out by the
>>>> voice of the rich donor, because the representative will listen only (or
>>>> mostly) to the voice of the rich donor. With a reference to Rousseau (which
>>>> one hopes does not incorporate his concept of the "general will"), the
>>>> dissent treats the breaking of that link as a form of corruption.
>>>>
>>>>
>>>>
>>>> The second is the interest in the formation of the views of the people;
>>>> the formation of those views may be corrupted if too much money is spent by
>>>> rich people to help form those views or to finance the formation of such
>>>> views. Here we run dangerously close to the concept of the "general will,"
>>>> a true will of the people that somehow is different from what they really
>>>> think, because their thinking has been warped by the spending of so much
>>>> money by the rich (perhaps creating a "false consciousness"). The spending
>>>> of huge amounts of money by the rich in furthering their own views drowns
>>>> out the voices of the ordinary people, as both the rich speaker and the
>>>> ordinary speaker try to convey their views to the people and to persuade
>>>> the people.
>>>>
>>>>
>>>>
>>>> Is it clear that the dissent only sees the first of those interests as
>>>> an "anti-corruption" interest that justifies campaign finance regulation?
>>>> (At first I wasn't sure, especially given the "drowning out" imagery, but a
>>>> more careful reading leads me to this conclusion.)
>>>>
>>>>
>>>>
>>>> Is it also clear that the first interest has nothing to do with which
>>>> person is elected, but rather with who the elected person will listen to
>>>> once elected? Thus it has nothing to do with any desire to level the
>>>> playing field for the election, right? Instead it has to do with the
>>>> actions that will be taken by the person once elected, which makes it
>>>> similar to a concern about quid pro quo corruption.
>>>>
>>>>
>>>>
>>>> My apologies if I'm asking the list to reinvent the wheel.
>>>>
>>>>
>>>>
>>>> Mark
>>>>
>>>>
>>>>
>>>> Mark S. Scarberry
>>>>
>>>> Professor of Law
>>>>
>>>> Pepperdine Univ. School of Law
>>>>
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>>>>
>>>
>>>
>>
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>
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