[EL] Rousseau and McCutcheon

Sun Apr 6 12:49:42 PDT 2014

I had the sense that Breyer was dancing with the concept rather than
endorsing it -- it just struck me as a strange reference.  And, as I should
have made clear at the outset, I thought the counter-reference to Burke was
equally odd, especially for the general proposition that a representative
should have lots of communication with his (then) constituents since the
main burden of that speech was that the representative should feel free to
ignore his constituents -- which Burke did and was later defeated.   The
exchange  seems like inside baseball.

At any rate, we've had government-imposed limits on campaign speech for
some time now and remain well short of Rwanda -- and those able to command
spondulix by the mountain-load have throughout corrupted elections (in the
Breyer sense), and yet things improve over time.

On Sun, Apr 6, 2014 at 3:06 PM, Kirsten Nussbaumer <kirsten_n at me.com> wrote:

> 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 law<http://en.wikipedia.org/wiki/Godwin%27s_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> 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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>>>>>>>
>>>>>>
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