[EL] Rousseau and McCutcheon

Sun Apr 6 06:29:08 PDT 2014

It has ever been thus

It occurs to me that it would help the discussion to define "rich" in terms
of the dueling definitions of corruption   I think Obama suggested
$250K/year, which seems about right to me in terms of the inequality issue
and the ability of a class of people to corrupt the system in favor of
their particular interests.  I presume you would need a good bit more
income (and the wealth associated with the moderately prudent use of that
income) to extract a quid pro quo from an individual member of congress
through campaign contributions.

On Sun, Apr 6, 2014 at 8:07 AM, Marc Greidinger <mpoweru4 at gmail.com> wrote:

> To get a sense of the consequences, one might think not only about the
> types of players, but the interests they represent. The demise of aggregate
> limits plays mightily into the hands not only of rich people in general,
> but of rich people who have highly focused interests.
>
> The "general will" if it means anything at all, would correspond to more
> generalized interests like protecting the environment, building economic
> strength, preventing economic collapse, helping people devastated by
> weather emergencies, and maintaining transportation infrastructure.
>
> The very wealthy, operating from self-interest, are not likely to define
> their agenda in such general terms. They would likely be focused on very
> particularized corresponding interests, eg: resisting EPA jurisdiction over
> a certain sector of the energy industry; tax incentives for research and
> hedge funds; stopping a requirement for a level of capitalization in banks;
> maintaining flood insurance program that will pay to rebuild buildings in
> developments under construction too close to a rising ocean; and building a
> certain unnecessary road using particular contractors or sources for
> asphalt.
>
> The right analyst for this is Prof. Mancur Olsen. He explains how
> empowering special interests causes political outcomes not consonant with
> the interests of the people in a republic in his "Logic of Collective
> Action." In his "Rise and Decline of Nations" he develops a theory of the
> pernicious consequences on the republic over time.
>
>
> On Fri, Apr 4, 2014 at 7:05 PM, John Tanner <john.k.tanner at gmail.com>wrote:
>
>> 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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