[EL] Rousseau and McCutcheon

Sun Apr 6 19:41:23 PDT 2014

My Dear Mr. Bopp:

Aggregate limits affect only the very rich -- that is a fact. And the rich
are different from the the rest of us in more ways than -- as one wag put
it -- "they have more money." Because they have more money, they frequently
have more particularized interests: large stakes in particular projects,
programs, or regulatory proposals. They have gained great power and social
advantages to some extent because of the protections they enjoy in our
society. The recognition that people with money can talk louder than
others, and influence the political process more is not particularly
remarkable. This was avidly discussed by the Founders in setting up the
US's pluralistic system, and is part of the balancing that was done. The
US's early history suggests that many of the Founders thought that balance
was set somewhat differently than you do -- and indeed, differently than
where I think it should be set. We both agree that the First Amendment
ought to be more strictly applied than these Founders did when they found
themselves in power.

The list of generalized interests I provide above may impress you as
"typical liberal agenda" but was actually entirely arbitrary. Most
conservatives -- perhaps not you -- will tell you they support every one of
the generalized interests I listed. If you wish to add things like "public
safety," "providing for national defense," "keeping the price of gasoline
low," or "encouraging free enterprise"  if you relate to those interests
more, it makes the same point. We both would then have a list of good
interests to agree on.

And we would also doubtless agree that it would be as wrong to suppress the
speech of the rich as it would the poor, or anyone's speech because it does
not express some notion of the "collective will." We are talking about
campaign donations here, and it seems that we disagree about whether that
is the equivalent of say standing on a soapbox talking politics in Speakers
Corner in Hyde Park. You think it is all the same, and that is fine: I will
listen respectfully as you stand on your soapbox and tell us why.

Hopefully, though, you don't end up in the spot next to the soapbox of a
really rich guy. You see, he just bought an entire Advent sound system
second hand from The Who. Even if they don't crank it up to "11" my hearing
is not good enough to understand you over that rich dude coming at me from
a four story stack of speakers. In fact, I might not even notice you at all
-- he has a much bigger soapbox too. It a portable sound stage, apparently
made up of faux soap boxes.

Fortunately it is not going to happen that way. You are not going to have
to outshout the four story speaker stack because guy up there is going to
be saying the same things you are. Maybe, if you are lucky, the rich guy
will not show up and will hire you to do the speaking for him. Maybe the
rich guy will decide that nobody need know about him at all. There is no
law that requires you to disclose the fact that the rich guy is paying for
the sound system so that you can talk about his preferred candidates, and
how Nazi-Communists like me are destroying the First Amendment. That way,
you get hit with the tomatoes, and the rich guy doesn't. After all, that is
what you are paid for.

I appreciate your insight in placing Professor Olson and myself into a
class with Pol Pot, Nazis, and some kind of communists. I suspect the Nazi
part might get me in trouble with a few of my relatives who fled them.
Those relatives might not have minded the communist association so much at
one point, but that is because some of them ended up working collectively
on Kibbutzim. I do not think any of them had to suppress any bourgeoisie to
get there, though. In any case, since then, I had thought that Brezhnev
soured most of us on that communist stuff. But now, thanks to you, I
realize that being a liberal is pretty much the same thing!

In fact, Professor Olson was a leading conservative political economist. I
find myself in frequent agreement with his theories, which is why I posted
as I did. He probably would be as surprised as I was to learn that we both
are "collectivists."  Wow, him too: there must have been some really good
"collectivist" hypnotism involved.

So I guess I too should be glad the McCutcheon case came along so that
Justice Breyer and me -- we "reformers" -- can gain insight into the fact
that we really have been seeking to retaliate against "enemies of the
people" -- possibly like you up on that soundstage -- but "obviously
limiting [our] retribution to campaign finance reform" because we are not
"more willing to use the full force of government against" you, like, I
would say if we were both in 1980s Cambodia, and I was lucky enough to be
among Khmer Rouge.

Yup. Sorry about that. And thanks for pointing that out.

I guess I will have to be content with the tomatoes.

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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>>>>>>> Law-election at department-lists.uci.edu
>>>>>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>>>>>
>>>>>>
>>>>>>
>>>>>
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>>>>>
>>>>
>>>>
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