[EL] Rousseau and McCutcheon
JBoppjr at aol.com
JBoppjr at aol.com
Sun Apr 6 12:13:02 PDT 2014
Regarding this:
Oh, and you forgot Rwanda.
Yes, so many examples but so little space. Jim Bopp
In a message dated 4/6/2014 1:22:26 P.M. Eastern Daylight Time,
dlublin at american.edu writes:
I haven't read all of this debate but it's always good to see _Godwin's
law_ (http://en.wikipedia.org/wiki/Godwin's_law) proved 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_
(mailto: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_ (mailto: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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