[EL] Rousseau and McCutcheon

Sun Apr 6 12:06:07 PDT 2014

Possibly, by this point in the thread, no one cares about the initial question about the dissent's use of Rousseau!  Still, I write--not on the substantive issues--but about my quibble that I don't see how Breyer did call upon the concept of Rousseau's general will.  

The "Rousseau" name seems to be understood here as the red flag for collectivism.   But--tell me if I'm missing something-Breyer only uses the Rousseau as a foil to argue that early Americans found *another* way to ensure that the people are not in chains in between elections.  Rousseau, after all, was talking about direct democracy and a concept of the general will that was non-deliberative in nature.  Breyer is talking about representative democracy and a specifically deliberative public opinion.  Whatever one thinks of Breyer's view of the latter or of campaign finance law, I don't see any general will in it. 

If there is something strange about the Rousseau invocation, I think John Tanner fingered it:  It's not easy to argue that Rousseau's political theory (as opposed to his educational theory and novels) was highly influential in late 18th century America.  (I happened to have taught The Social Contract to my undergrads earlier in the semester, and had to tell them how baffled I was that the back cover of the Cambridge edition says that he was a profound influence on the American Revolution.)

best,
Kirsten

Kirsten Nussbaumer
2013-14 Research Fellow
Project on Liberty, Democracy, and Citizenship
Miami University

On Apr 06, 2014, at 10:21 AM, David Lublin <dlublin at american.edu> wrote:

I haven't read all of this debate but it's always good to see Godwin's lawproved again.

I remember Prof. Judith Shklar, whose family fled Germany, teaching my graduate political theory class to avoid comparisons to Hitler because "he was very distinguished in his field."

Surely, one can make a strong argument against campaign finance reform without having to go there.

Oh, and you forgot Rwanda.

David

-- 
David Lublin
Professor of Government
School of Public Affairs
American University
4400 Massachusetts Ave.
Washington, D.C. 20016
http://davidlublin.com/

On Sun, Apr 6, 2014 at 10:08 AM, <JBoppjr at aol.com> wrote:
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> 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

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