Wednesday, April 2, 2014

Metaphysical Not Empirical: The Problems with McCutcheon

The Supreme Court decision McCutcheon v F.E.C. striking down aggregate contribution limits is flawed for many reasons.  Critics will complain that the Court adopted a crabbed and narrow definition of corruption, or that it seemed inured to the role of money in politics, or that it is one more extension in giving more rights to the wealth and in sanctifying one dollar, one vote as the defining philosophy of the Roberts’ Court view of American democracy.  All these criticisms have merit.  But the deeper flaws lie in something more fundamental–the decision is the triumph of legal metaphysics, devoid of a real theory or understanding regarding how American democracy should and do operate in the real world.
            As I argue in my new book  Election Law and Democracy Theory, the most curious feature about election law scholarship and adjudication, including that by the Supreme Court, is the degree to which it is theoretically rudderless.  What is meant by rudderless?  Simply put, it is the extent to which the critical debates and issues that are at the center of many election law disputes are often addressed in the most minimal of matter, generally without regard to any broader sense of a political theory which should guide decisions.  In reaching decisions addressing political speech versus promoting the integrity of elections in the area of campaign financing, or ballot access versus electoral integrity, voting rights versus fraud prevention, or any other innumerable issues, election law scholars and judges seem to assume that the matters at stake are devoid from a broader political or democratic theory context.  This is what occurred in McCutcheon.
            On one level the Supreme Court yet again issued a decision in which it examined one issue about American politics and elections–the role of money or the right of individuals to make political contributions–without adequately considering the broader impact of that decision on the actual performance of American democracy.  The Court treats in isolation one aspect of our political democracy–the right of an individual to spend money–without considering other competing values and how they come together to form a more complete theory about government, politics, and elections.  Yes individuals may have a right to expend for political purposes, and such an act may further an important value of free speech, but that is not the only act and value that must be furthered or considered in a democracy.
            Democratic theorists such as Robert Dahl point out that a theory of democracy includes several values, such as voting equality, effective participation, enlightened understanding, control of the agenda, and inclusion.  For each of these values there is a need to construct institutions that  help sustain them or give them meaning.   Effective participation includes institutions that create for example free and fair elections, opportunities for non-electoral participation, and competitive parties. However, none of these values operates in isolation; a real concept of democracy requires that one understand how they interact, coming together to form a fuller theory of American Democracy.
            Democratic theories have ontologies.  Each theory  defines its object of inquiry, the critical components of what makes a political system work, and what forces, structures, and assumptions are core to its conception of governance.  This ontology will not only include a discussion of human nature but also examination of concepts such as representation, consent, political parties, liberty, equality, and a host of other ideas and institutions that define what a democracy is and how it is supposed to operate.  The Supreme Court, along with most election lawyers, have no sense of theory. In McCutcheon, the Supreme Court isolated one value or practice–expending money–in isolation from many others, asserted that such a practice was protected by the First Amendment, and either called it a day or mistook such a claim as a theory. This is hardly the case.  At best it is the most minimal concept of a democracy, at worst it is no theory.  Among many election lawyers they have made the same mistake, confusing advocacy of a single claim with a broader theory of democracy.  Or in the contrary their view of democracy is reductionist–it is about saying that the allocation of political power and influence is not different than the selling of cars or toothpaste.  Markets may be great ways to allocate commodities, but they are not appropriate tools to sell or distribute political power or democratic influence.  For those who think it is, they are confusing politics with economics, elections with markets.
            Thus on one level the Supreme Court in McCutcheon had no theory and it was all empirical–some individuals denied the right to max out their political contributions on as many candidates and organizations as they want.  But in another sense the decision was all theory and not empirical.  The Supreme Court had its own metaphysics about how it thought people acted. The majority opinion waltzed out a series of hypothetical ways money could be diverted in elections was conjecture at best, devoid of real empirical evidence.  Moreover, the majority opinion, along with many of the defenders of it, make many assertions that simply lack empirical  foundation.  Is it real true that the decision means groups and individuals will be more likely to shift giving to candidates and away from third party groups?  Are political parties strengthened by taking more special interest money?  We have no real evidence to support these claims. 
            For the most part, the assumptions made by the Court and many election lawyers are devoid of empirical political science analysis.  They are highly rationalistic models about human behavior, akin to the theoretical  models economists and other social scientists often make about worlds and behavior they do not exist in reality.  Decisions such as McCutcheon are what many of us call formalistic.  They ignore the wisdom of Supreme Court Justice Oliver Wendell Holmes, Jr.  Who once declared: “The life of the law has not been logic; it has been experience.”  It should be experience, evidence and data, and not blind assertions or theories, that guide decisions about the role of money in politics.
            Overall, the real failure of McCutcheon is that it is both too theoretical and not sufficiently theoretical, and too empirical and not empirical enough.  It ignores how an American democracy should operate, and how its institutions do actually work both within a comprehensive theory and in the real world.

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