[EL] Rousseau and McCutcheon

Sun Apr 6 07:08:23 PDT 2014

One of the side benefits of the McCutcheon case is that it has revealed  
what the campaign finance "reformers" are really all about.

First, their goal is the typical liberal agenda.  Then they identify  those 
who they think are opponents to that agenda -- corporations, the  "rich.".  
Then they support legislation to shut them up.

Of course they dress this up as regulating the system -- the "collective"  
voices of the people -- to make sure that the authentic "will of the  
people" is heard by suppressing those voices that distort that will --  by 
misleading convincing some and drowning out others.

This approach does have its roots deep in our history and is frequently the 
 justification for tyranny.

The communists suppressed the bourgeoisie in the name of  the proletariat.  
Pol Pot destroyed the urban dwellers in the name of  rural dwellers.  The 
German government targeted the Jews, gypsies,  Catholics and communists as 
the enemy of the German volk. All these enemies of  the people had to be 
silenced to defend the authentic will of the people.

Breyer acknowledges that he is countenancing the violation of the  First 
Amendment rights of the "rich," but justifies it as ensuring that the  
authentic will of the people will be heard through the "collective" speech of  the 
people. And he lets the government pick the voices to be  surpressed.

So Breyer sets it all out clearly, as does mpoweru4 below,  obviously 
limiting their retribution to be visited on the enemies of the people  to 
campaign finance limits -- while others in our history were much more willing  to 
use the full power of government against them.

Their problem is that the First Amendment was adopted to protect the very  
speech that Breyer, et al are so willing to violate in the name of the  
collective.  So they have to pretend that they are the ones writing a First  
Amendment -- balance the First Amendment interests involved -- while this  
balancing has already been done and the First Amendment already written by our  
Founders. And that amendment was written to protect individual freedom  
against the efforts of the collective to suppress their speech -- regardless of  
whether the government thinks that that speech is helpful to democracy or  
not.  Jim Bopp

In a message dated 4/6/2014 8:08:56 A.M. Eastern Daylight Time,  
mpoweru4 at gmail.com writes:

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_ 
(mailto: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_ (mailto: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_ 
(mailto: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_ (mailto: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_ (mailto: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_ (mailto: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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