[EL] Rousseau and McCutcheon

Mon Apr 7 10:24:19 PDT 2014

The health of the British political system today seems far, far better than the health of the U.S. political system.  This year in particular, Congress seems unable to do anything useful.  Many judicial vacancies haven't been filled.  Immigration reform is stalled, marijuana policy is stalled, tax reform is stalled, a coherent campaign finance policy is stalled.  

Richard Winger
415-922-9779415-922-9779
PO Box 470296, San Francisco Ca 94147

________________________________
 From: Bill Maurer <wmaurer at ij.org>
To: "'JBoppjr at aol.com'" <JBoppjr at aol.com>; "adam at boninlaw.com" <adam at boninlaw.com>; "oregon.properties at yahoo.com" <oregon.properties at yahoo.com>; "john.k.tanner at gmail.com" <john.k.tanner at gmail.com> 
Cc: "law-election at department-lists.uci.edu" <law-election at department-lists.uci.edu> 
Sent: Monday, April 7, 2014 10:08 AM
Subject: Re: [EL] Rousseau and McCutcheon

We don’t have to go to Europe in the 1940’s to see that government control of political finances is not the solution to political alienation and rule by elites.  Italy recently scrapped its system of publicly financed parties, in large measure because of corruption and the feeling among middle-class Italians that it was geared towards establishing and reinforcing a system favoring the rich and connected insiders.

http://www.bbc.com/news/world-europe-25370808   

England has almost entirely publicly funded politics—it doesn’t even permit independently funded issue advertisements.  It too suffers from low voter turnout, a lack of belief in political efficacy, and a perception that politics is sclerotic and atrophying.  

Moreover, in most of Europe, which features far more control of political speech and activity than the United States, there has been a rise of extreme groups outside of the main political parties, ranging from the outright sinister (Greece’s Golden Dawn) to the also sinister (France’s National Front) to more moderate parties that nonetheless represent deep alienation from the ruling establishment (Britain’s UKIP and Italy’s Five Star Movement).

Is all this the result of government control (or, more accurately, government occupation of huge amounts) of opportunities for peaceful political activity?  Most certainly not.  But it does suggest that such control is not cure for corruption, alienation, extremism, and rule by elites and may, in fact, exacerbate or even make permanent all of them.

Bill

From:law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
Sent: Monday, April 07, 2014 5:08 AM
To: adam at boninlaw.com; oregon.properties at yahoo.com; john.k.tanner at gmail.com
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Rousseau and McCutcheon

Interesting question but reelection rates are also effected dramatically by partisan redistricting, as well as other factors, so it is hard to isolate just campaign finance rules to see it there is a correlation.  Jim Bopp

In a message dated 4/7/2014 7:56:21 A.M. Eastern Daylight Time, adam at boninlaw.com writes:
Well, there’s plenty of states (I live in one) without campaign finance limits for state and local races.  What are the incumbency retention rates for legislators in limits states versus no-limits states?
> 
>From:law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
>Sent: Monday, April 07, 2014 7:50 AM
>To: oregon.properties at yahoo.com; john.k.tanner at gmail.com
>Cc: law-election at department-lists.uci.edu
>Subject: Re: [EL] Rousseau and McCutcheon
> 
>I think there is good evidence that campaign finance limits, being written by incumbents, favor incumbents. Thus, the government writes the rules for campaign speech, and they are the governors.
> 
>Sorry, I did not take French, if that is what it is.  Jim Bopp
> 
>In a message dated 4/6/2014 10:45:02 P.M. Eastern Daylight Time, oregon.properties at yahoo.com writes:
>What Jim and Brad are calling for, no limits and no disclosure is an attack on the ability of "the governed" 
>>
>>Sent from my iPhone
>>
>>On Apr 6, 2014, at 6:25 PM, John Tanner <john.k.tanner at gmail.com> wrote:
>>Revenons a nos moutons
>>>
>>>Sent from my iPad
>>>
>>>On Apr 6, 2014, at 9:22 PM, David Lublin <dlublin at american.edu> wrote:
>>>Geez somehow doesn't seem like the quite right choice of expression here ;) 
>>>> 
>>>>At serious risk of beating the long-dead horse, there was no other period where Jews, Catholics, Gypsies, and Communists were targeted in German history at the same time. Pol Pot was genocidal, which also doesn't fit other periods in German history.
>>>> 
>>>>Even if one accepted your dubious premise, the suggestion that democracies that regulate campaign finance, like Canada and the UK, are "suppressive" of the wealthy in the manner of either the yet-to-be-named-but-definitely-not-Nazi period of German history or Pol Pot is hyperbolic and unworthy of the arguments for the side you claim to defend.
>>>> 
>>>>While I think that the Court's majority, let alone the First Amendment, deserves a better public defense, I'm sure BCRA's defenders would love to see you keep making it, as you play right into their hands.
>>>> 
>>>>I hope all have a good Sunday night whatever their opinions on McCutcheon. If any of you felt constrained by the previous limits, please contact me so I can hit you up if I should run for office again.
>>>> 
>>>>Best,
>>>>David
>>>> 
>>>> 
>>>>On Sun, Apr 6, 2014 at 7:57 PM, <JBoppjr at aol.com> wrote:
>>>>Geeze.  Over decades, as you concede, the German govt did target Jews and Catholics in the name of the German volk -- before Hitler.  Just because Hitler did it too does not make it out of bounds to discuss what the German govt did before him, as you suggest.
>>>> 
>>>>And yes I hid it well because I was not doing it.  
>>>> 
>>>>So the problem here is that the government is suppressing the freedom of some -- rich people -- in the name of allowing the "authentic" voice of the people to be heard. There is a long history of governments doing so, sometimes with modest measures, like speech restrictions through campaign finance measures, sometimes not, in order to get their favored policy agenda implimented.  
>>>> 
>>>>But the point is that this is just what campaign finance "reformers" are doing now.  Jim
>>>> 
>>>>In a message dated 4/6/2014 5:47:20 P.M. Eastern Daylight Time, dlublin at american.edu writes:
>>>>Jim, 
>>>>> 
>>>>>You stated that "the German government targeted Jews, gypsies, Catholics and Communists . . . "? Most minds would tend to go to Nazi Germany headed by Hitler at that point. It wasn't the Weimar Republic and I don't think the last period of the German Empire particularly targeted Catholics. Any earlier and there wouldn't be any Communists to target. The mention of Pol Pot would seem to be a clue too. 
>>>>> 
>>>>>So if you weren't meaning to invoke Hitler and this period, you hid it well.
>>>>> 
>>>>>In any case, there's a reason that Martin Niemöller's famous quote doesn't begin with "First, they instituted campaign finance reform and I did not speak out -- Because I was not a major donor."
>>>>> 
>>>>>Again, dialing it back would be welcome here. If the Supreme Court managed to make the argument without Rwanda, Nazi Germany, and Cambodia, I am confident that you can do the same.
>>>>> 
>>>>>David
>>>>> 
>>>>> 
>>>>> 
>>>>>On Sun, Apr 6, 2014 at 5:31 PM, <JBoppjr at aol.com> wrote:
>>>>>    Furthermore, I purposefully did not invoke Hitler.  (1) I agree that he was "very distinguished in his field," and (2) the concept of the German volk, and that Jews were an enemy of the volk, long preceded Hitler's rise to power, even though he avidly believed it, exploited it for his own political purposes and took it to extreme's never imagined by its most feverish supporters before his time.  Jim Bopp
>>>>> 
>>>>>In a message dated 4/6/2014 3:13:50 P.M. Eastern Daylight Time, JBoppjr at aol.com writes:
>>>>>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 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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>>>>>>>>> 
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>>>>>>>
>>>>>>>_______________________________________________
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>>>>>
>>>>>
>>>>>
>>>>> 
>>>>>-- 
>>>>>David Lublin
>>>>>Professor of Government
>>>>>School of Public Affairs
>>>>>American University
>>>>>4400 Massachusetts Ave.
>>>>>Washington, D.C. 20016
>>>>>http://davidlublin.com/
>>>>
>>>>
>>>>
>>>> 
>>>>-- 
>>>>David Lublin
>>>>Professor of Government
>>>>School of Public Affairs
>>>>American University
>>>>4400 Massachusetts Ave.
>>>>Washington, D.C. 20016
>>>>http://davidlublin.com/
>>>_______________________________________________
>>>>Law-election mailing list
>>>>Law-election at department-lists.uci.edu
>>>>http://department-lists.uci.edu/mailman/listinfo/law-election
>>_______________________________________________
>>>Law-election mailing list
>>>Law-election at department-lists.uci.edu
>>>http://department-lists.uci.edu/mailman/listinfo/law-election
>>=
>>
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