[EL] Rousseau and McCutcheon

Fri Apr 4 16:05:30 PDT 2014

apologies.  I was skimming comments on the 2d

On Fri, Apr 4, 2014 at 6:47 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

> My 4/2 post (scroll way down to see it) was probably too long for most
> list members to wade through. It raised concerns about the reference to
> Rousseau, whose pernicious concept of the general will could find a place
> in an analysis like Justice Breyer's.
>
> I don't think Breyer meant to suggest it, but one reason to make sure the
> voices of the rich don't drown out other voices is so that the people won't
> develop "false consciousness." We must be saved by the government from
> being persuaded by the loud voices of the rich.
>
> I very much dislike arrogant rich people who think they know better. I
> even more distrust a government that wants to protect my ability to think
> clearly about what is in my interest and in the public interest.
>
> Mark Scarberry
> Pepperdine
>
>
> Sent from my Verizon Wireless 4G LTE Smartphone
>
>
> -------- Original message --------
> From: Benjamin Barr
> Date:04/04/2014 3:17 PM (GMT-08:00)
> To: John Tanner
> Cc: Election law list
> Subject: Re: [EL] McCutcheon
>
>  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
>>>>>
>>>>>  _______________________________________________
>>>>> Law-election mailing list
>>>>> Law-election at department-lists.uci.edu
>>>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>>>
>>>>
>>>>
>>>
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>>
>>
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