[EL] Rousseau and McCutcheon

Sun Apr 6 13:27:31 PDT 2014

I had the same reaction that John did. It seemed strange to invoke Rousseau in the discussion of speech that could form public opinion, though Breyer was citing Rousseau for the proposition that the lines of communication between representatives and the represented need to stay open, rather than for any notion of the "general will." As I said in my original post on the topic, it seems clear that Breyer was not endorsing government recognition of the "general will," which, as I understand it, has nothing to do with the actual will of real people.

That notion, which seems central to Rousseau's approach to political matters, is quite pernicious and amounts to a view that those who are in control can tell us all what we really want (or should want). I'd think federal judges would want to stay fairly clear of Rousseau and of others who would suggest a need for government to take into account a "false consciousness" that may afflict the public. (Did Rousseau write about "false consciousness"? Was his work important in the development of that concept?) At least one post on this topic has suggested, I think, that the government should take it into account. Whether or not the political branches should, the Court has no business doing so.

I'm certainly no expert on Rousseau, and would enjoy hearing more from Kirsten. Although Jefferson (contra Adams) seems to have viewed the French Revolution somewhat favorably (at least in its early stages, right?), it seems unlikely that he was influenced by Rousseau. I could be wrong on that point. I also wonder how the concept of the "noble savage," which I gather was erroneously associated with Rousseau, would have struck Jefferson, Washington (who had military experience with and against native Americans), Adams, and others in the Founding generation.

It's also possible that Rousseau's view of the need for lines of communication to stay open is worth consideration by judges on its merits. Perhaps the citation to Rousseau was unnecessary, particularly for a non-originalist, other than to suggest the historical development of the concept.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of John Tanner
Sent: Sunday, April 06, 2014 12:50 PM
To: Kirsten Nussbaumer
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Rousseau and McCutcheon

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<mailto: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 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

...

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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