Is Democracy Good Because Majority Votes "Track Public Policy Truths"?

In what is likely to be my last "scholarly paper" (journal publishing is just too aggravating for my delicate constitution), I argue against what is currently the most widely held view regarding the benefits of democratic government.

Marquis De Condorcet, the French Revolution supporter and eventual victim is justly celebrated for his "jury theorem" according to which majorities (of unbiased, independent, sufficiently knowledgeable, etc.) voters are more likely to be "right" than any smaller group. Partly because of the violent terror resulting from the very movement that whacked Condorcet, democracy has long been viewed with suspicion. (Since antiquity it has been claimed that the hungry masses aren't just stupid, but also rapacious and therefore dangerous; after all, there's a LOT of them.) Then, in the middle of the 20th Century, things got worse for majoritarians when Kenneth Arrow proved that, in addition to those other problems, it's also the case that elections are incoherent. 

What could democracy supporters say in reponse to these objections other than "Well, anyhow, nothing is more likely to get us to true public policies!" So that's what they have mostly said.

That's what I respond to. First, I don't think the idea of public policy truths makes much sense; and second, I believe both of the two main objections to democratic arrangements listed above can be overcome. A good deal of my 2020 book is on this stuff, as are many of my (nagging?) blog posts here at luckorcunning. But I wanted to try to distill my thoughts on this until they were reduced down to a single, article-length piece. And I have finally done so--whether I've gotten everything quite right or not.

Here's the abstract: 

According to supporters of epistemic democracy, the most important virtue of democratic forms of government is that they provide the best method for determining correct public policies. On their view, this does not primarily result from the fact that any policy a democratic government enacts will reflect conjoined citizen interests and so be more likely to satisfy them, but from the fact that, as they believe Condorcet has demonstrated, majorities are more likely to get things right than any minority is. I argue that any such view fails to capture what is usually meant by self-government, and that, due to this critical shortcoming, epistemic rationales for democracy should be abandoned in favor of voluntaristic, aggregative theories of the kind that were popular prior to mid-20th Century objections generally claiming either that collective preference aggregations are necessarily incoherent or that pervasive injustices must result from unconstrained, and hence tyrannical, majorities.

You can read the whole magilla either at SSRN or direct from Croatia at Prolegomena. So, pick your poison.

Yarvin v. Kofman on Monarchism and Democracy

In her excellent New Yorker portrait of monarch-loving, narcissistic tech bro, Curtis Yarvin, Ava Kofman points out a couple of things that those who (at least think they) like democracy should worry about. She notes that Yarvin's approach seizes on the reality that most Americans have never learned how to defend democracy; they were simply brought up to believe in it. I believe that concern is absolutely appropriate. I mean, although nobody will ever convince Yarvin of anything (as the piece points out repeatedly, Yarvin is a devout know-it-all who never listens to anybody else, even when he has asked them a question) there may nevertheless be significant benefit in those who think of themselves as (small "d") democrats having a sense of just why democracy is a good thing.

Apparently, Kofman and I aren't the only ones who consider this inability to defend democracy to be a problem for Yarvin doubters, whether they are liberals, conservatives, neolibs, communitarians,  communists or whatever. Kofman quotes one Yarvin devotee who says that what drew him to that contrarian's blog was the fact that it makes me feel like I've got something that people in Washington who think they're really smart can't actually make a compelling argument against. 

I don't think there's any question that this is  a legitimate problem. Indeed, almost everything I've written in the last decade myself has been part of my (obviously feeble) attempt to explain why democracy is a good thing--whatever problems it may engender. No Yarvin myself however, it is likely that very few (of my very few) readers will have taken much from my repetitive lectures. 

Sadly, I note that even Kofman may not quite get this stuff right--in spite of her surely getting Yarvin's flaws down beautifully. She writes, for example, that Without a vigorous system of checks and balances, one man's crank ideas--like starting an incoherent trade war that upends the global economy don't get filtered out. They become policies that enrich [Trump's] family and his allies. But that's not really the problem at all, and what's worse, checks are intended to be brakes on democracy, and thus cannot be sensibly used to support the very notion of majoritarianism. Kofman lets slip a sense of what she thinks is basic when whe writes that Yarvin has little to say on the question of human flourishing. Clearly she thinks that's a misstep on his part. But if flourishing is to be the ultimate goal, it's likely that those looking for an all-powerful CEO or philosopher king are just as likely to win the day. Sure, democracy may bring about human flourishing, but it also may not. That's part of its DNA: it simply allows a populace to (within limits*) get what it wants at the time, whether sensible or nuts. If the appropriate search is simply for happy endings, whether democracy is most likely to provide the best road is a purely empirical matter. 

Kofman seems also to conflate democracy with liberalism, forgetting--at least for a moment--that democracies may be (minimally in my view) illiberal.* She says, e.g., In the past decade, liberalism has taken a beating from both sides of the political spectrum. Its critics to the left view its measured gradualism as incommensurate to the present multiple emergencies; climate change, inequality, the rise of an ethno-nationalist right. Conservatives, by contrast, paint liberalism as a cultural leviathan that has trampled traditional values underfoot. Whether or not liberalism requires the reaching of any of the specified goals, is unclear, but democracy certainly need not. Again, it's a mistake to suggest that we can measure how democratic a polity is by how well it is doing in terms of  "human flourishing," as if a polity could not be democratic if its stupid and/or cruel citizens cannot govern in anything but stupid or cruel ways. Such a position actually falls into a Yarvinesque trap by accepting the view that democracy is bad idea if a populace is ignorant or easily fooled. 

I don't want to try to get into anything like a detailed defense of democracy and democratic values in a little blog post. I will only (again) suggest that those interested in my views should take a look at a bunch of relevant entries here at luckorcunning, my published papers on those subjects, or (best of all, imo) my book on democratic theory. But I will say here that if one is most in search of democratic means to prevent self-enrichment by an office-holder, the best answers seem to me to be robust Recall and Referendum provisions, rather than anything like bicameral legislatures, Filibuster capabilities, Executive vetoes, or requirements for supermajorities. Beefing up Madisonian "checks" (i.e., impediments) to authentic self-government are certainly neither the answer to Yarvin nor to the current problems besetting the United States under Trump.

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* I won't attempt to specify all the limits I believe must constrain majoritarianism for authentic democracy to obtain. But to give the general idea, there must at least be equal treatment and protection for all, a right to vote and run for office for all competent residents, free speech, free association, and free assembly.  

Is There Any Real Hope for a "Balance" of Governmental Powers?

Many readers in my age bracket will know that many, perhaps most, of the desiderata of the Trump Administration have been around a long time. Republicans have been pressing the object of ridding the Federal government of "waste, fraud, and abuse" at least since Reagan's day. They have also sought to eliminate the Department of Education, make English the only allowable language, get rid of PBS, abolish any form of affirmative action or other minority assistance, relieve businesses from the alleged hassles produced by "harmful and expensive" regulations, make it easier for sick people to get any drug they may want, strike any restrictions resulting from "the climate change hoax," make it harder for certain cohorts to cast ballots, and on and on and on. None of that stuff is new.

Some of the more "conservative" Presidents have made headway on a number of those measures, but they have been constrained from reaching their hearfelt goals by the fact that, well, they weren't kings: they had to deal with Congress and the courts. The current administration in Washington is sick of those constraints. They want quick and comprehensive results, and have therefore attempted to bypass every institutional brake and dissenting voice and simply do whatever strikes their (perhaps momentary) fancy by way of Executive Order. 

According to Montesquieu and Madison, the democratic way to stop Executives from acting like dictators is to make sure your constitution has a plentiful supply of "checks and balances." We have a lot of those devices in the U.S., so ...maybe we're OK? For remember, the Congress can impeach and remove a President and the Judiciary can declare his or her edicts--whether by Executive Order or otherwise--null and void. Indeed, before the absurd and dangerous Presidential Immunity decision, Presidents could even be prosecuted for criminal behavior.) 

It can't be denied that these "checks" often work in practice, and a judicial one is currently grinding away even as I write this. For in a decision in the case of AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., v. DONALD TRUMP, Judge Susan Illston of the Southern District of California has issued a temporary restraining order that requires a number of gutted and/or moved Federal agencies to be put back where they were, along with the resources and employees that Congress originally intended for them when they gave them specific jobs to do. 

Based on her decision, Judge Illston seems to have been very taken by the briefs of the agencies, unions, municipalities, etc. and not been terribly impressed by the replies to the plaintiffs in this case. And she was also cognizant of a number of precedents. For example, she quotes  this remark from Youngstown Sheet & Tube (1952): 

In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.

One can also find this telling remark from Clinton v. City of New York (1998) in her decision:

The President may create, reorganize, or abolish an office that he established [but the Constitution does not authorize him] to enact, to amend, or to repeal statutes.

Presidents have regularly asked Congress to expedite their authority to reorganize the executive branch, and sometimes have been given that power. In fact, Trump asked for such  authority during his first term and was turned down when the accompanying legislation died in Congress. Thus, Judge Illston concludes, 

The simple proposition that the President may not, without Congress, fundamentally reorganize the federal agencies is not controversial.

I don't disagree with any of that; I just note that the idea that one branch makes laws, another executes them, and a third interprets them, will always make for a highly unstable compound. After all, this decision itself indicates that Congress must be entitled to its own share of executive powers. For it insists that failure to at least attempt to make workplaces, food, air travel or whatever else safer in precisely the manners they have required by their enactments may not be ignored by Presidents or their appointees. Not every type of administration is allowed to the Executive branch.

In addition, two recent Supreme Court opinions, in decisions that were actually sought by Trump supporters at the time, overturned the Chevron deference doctrine, which had allowed agency experts to write regulations that looked, smelled and quacked an awful lot like laws. Furthermore, if the courts end up agreeing with the Trump Administration and overturn this District Court's decision, while there will have been a temporary check, there can hardly be said to have been any  real balance. 

Look at it this way: on the one hand, Congress may pass laws, but the Executive may ignore them and/or the Judiciary may just bat them away. On the other hand, with a friendly court the Executive will be able to legislate via its regulatory powers. That's not all: the Judiciary sometimes does what is essentially both legislating and administering via consent decrees. And, of course, just as Judge Illson will be accused of joining hands with the Democrats in Congress here, the executive and legislative branches sometimes gang up on the judiciary by quickly jiggering laws and administrative methods to get around their decisions. I suppose some Madisonians among us may think that these Rube Goldberg flourishes are patently lovely, but the sad point is that, one way or another, some branch or ugly combine of two of them will always have the upper hand. No "balance" is ever more than momentary. 

Thus, instead of a democracy in which the electorate is the ultimate decider of policy, the only tally that really matters in a Madisonian style government involves, not the citizens, but only the three branches. That is, it makes the crucial question: Which side has at least the votes of two of the branches? That, in a word, is why an authentic democracy must shift some governmental power back to the citizens. And the only sensible way to do it is to guarantee Recall (the power to remove any elected official); Referendum (the  power to repeal any enacted statute or regulation*) and Reversal (the power to overturn certain types of judicial decisions).# 

Without all three of those, periods of dictatorship or other sorts of tyranny are not only ever-possible, but are generally ever-present and operative, whether that condition is obvious or not.

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* In my opinion, these powers should not include the Initiative Petition (the power of the electorate to make rather than repeal laws or regulations). There are a number of reasons for this which I discussed in my book and will not go into at present, though I might discuss this issue again here in a later post.

# Reversal should not be allowed in criminal or civil complaints against individuals. To that extent at least, the judiciary must remain "independent." There is more in my book on this topic as well, though I think the line between appropriate and inappropriate cases for Reversal has probably been better explicated by Ganesh Sitaraman.

Judicial Power and Democracy: The Case of Marine Le Pen

A recent commentary put out by the European Center for Populism Studies takes what I consider a mid-depth dive into the response of Marine Le Pen's supporters to that party leader's recent conviction on corruption charges. In this interesting piece, the author, Julie Van Elslander, opines that Le Pen's 4.6 million Euro misappropriation conviction "is emblematic of what scholars qualify of [sic] post-truth populism: The transformation of political culture by the devaluation of factual correctness over emotional appeal. In a context where public discourse is increasingly shaped by the logic of “alternative facts” – a concept introduced by Trump’s counselor in 2017.  Le Pen’s trial is another example of the way post-truth populists challenge liberal democracies." [Citations are omitted here and throughout.]

The decision has, of course, been appealed, and the required house arrest in the sentence will not take place until that further case is decided. But during the pendency of that appeal, one aspect of Le Pen's sentence is being enforced: she may not be a candidate in the 2027 Presidential elections. As one might expect, Le Pen and her followers cover all the usual bases in their reactions to the decision: 

• She is innocent and is being punished for an administrative error, since she did not personally benefit from any alleged misappropriation. 

• The court is corrupt and the decision was rigged to keep her out of power. 

• It's a purely political, rather than legally correct decision. 

• The judiciary is just a part of the elite that always works against "the people." 

• This is one more example of the left's anti-democratic authoritarianism. 

• Etc. Etc.

That Le Pen herself had earlier called for "life ineligibility for elected officials convicted of embezzlement or corruption" is, naturally, conveniently forgotten, hypocrisy being the custom of nearly all successful politicians. I suppose the most common complaint--so similar to Trump's constant whining--is that Le Pen's trial wasn't "presented as a neutral legal process, but as the proof of a biased system – with Le Pen denouncing a political decision, 'a practice 'we believed to be reserved for authoritarian regimes.'"....On their view the entire event should be characterized as "an unaccountable elite trying to undermine the will of the 'real people' – a homogeneous group not defined by citizenship, but by symbolic alignment with the populist cause."

Ms. Van Elslander is quite dismissive of all the allegedly populist responses mentioned above. And it would be hard, I think, not to agree with her on most of those matters. But there is one rejoinder that she seems to lump with those bulleted above as being also inadmissable, perhaps because of its alleged reflection of "alternative facts." However, I believe that particular response, should have had its actual merits considered. Here it is:

"An online petition launched by National Rally, titled 'Save democracy, save Marine' rapidly gathered thousands of signatures and rallied support over social media, but its message was...about defending her voters’ rights. In an open letter promoting the petition, Jordan Bardella, the young president of the National Rally, described the conviction as an attack against voters: 'They are trying to prevent a candidacy supported by millions of French people, which is well ahead in all the polls. They deprive millions of voters of their choice and therefore their freedom.' This sense of disenfranchisement was further amplified at a public rally held a week later, during which Bardella framed the conviction as an attempt to prevent the National Rally from acceding to power. The conviction, as he claimed, was...about the right of French voters to choose their leader. The rally became a platform where Le Pen was portrayed...as a  a representative of  silenced voters."

My own view of this matter is that this objection has nothing whatever to do with the spreading of information or "alternative facts," but should rather be seen as reflecting a correct view of democratic theory. That is, no judiciary should  place itself above the fundamental rights involved in democratic government. Le Pen's panel were within their rights to have fined or incarcerated her, but they should not have prevented her from running for President. However, it is also true that if she were to be elected, she should not have the power to pardon herself, or expunge her record. Indeed, if imprisoned, she should not be able to remove herself from that condition. Perhaps a newly and legitimately enacted law might be able to do that, but such retroactivity would make that enactment questionable at the very least. The point is that if Le Pen's supporters really want to have the President of France serve all or part of her term under house arrest, so be it: they may not be deprived of the right to make that choice. (For what it may be worth, Boston's Mayor Curley was imprisoned during one of his terms.) 

Matters concerning fundamental democracy should always be understood to be absolutely unalterable. Authentic popular sovereignty requires that even constitutional provisions regarding such matters may not be played with--even by vote of the entire nation. Neither  the Executive nor the Judiciary should be allowed to "run" a polity. Either constitutes a type of  authoritarian tyranny. Only the electorate should have that power, and for that condition to be maintained, the electorate may not mess with fundamental democratic rights either. 

In sum, even if Marine Le Pen's conviction had been handed down by a jury--which it was not, this being purely a three-member-panel affair--it should not have included any prohibition of a run for elective office (or, for that matter, prohibition of her own right to vote.) And this has nothing at all to do with "alternative facts" or "post-truth populism."

To What Extent Should Governmental "Powers" be "Separated"?

Perhaps the most interesting facet of the doctrine according to which acceptable democracies require careful separation of the Executive, Legislative, and Judicial powers is that it seems to be almost entirely a prudential/empirical matter. That is, I doubt there is any fundamental axiom of democracy that requires that law making, law administering, and law interpreting be performed by strictly separate entities with a government. Thinkers like Montesquieu and Locke sometimes wrote as if there was some intrinsic connection between liberty and separation of powers, but I don't think they meant to suggest that this would be so in "an ideal world." So, while those in the current Adminstration in Washington, D.C. who push for something called a "unitary executive" often attempt to base their claims on some sort of strict separation thesis, it seems to me that their main impetus is just to obtain as much unbridled power for the executive branch as possible. It should be admitted, however, that there is at least some road from a demand for increased democracy to a resting place at which the (unelected) Federal judiciary has less power than it has exercised since the Warren Court--and (elected) legislative or executive officials have more power. On the other hand, no usurpation of power from Congress by the Executive can be defended on those grounds, and probably most of the unitary executive arrows currently flying around the Beltway have been thus far aimed at the legislative branch. (And that is hardly surprising since the current SCOTUS has a solid Trumpian majority.)

The main point I wish to make here, however, is that the extent and impregnability of the "wall" by which governmental powers ought to be divided is not a matter that can be sussed out apriori. Rather, it's the sort of thing that should be based on experience. James Madison famously warned in Federalist #51 that "A dependence on the people is, no doubt, the primary control of the government; but experience has taught mankind the necessity of auxiliary precautions. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary." 

I don't myself know whether, if men were angels, no government would be called for, but I agree with Madison that as individual human beings are often nasty and power-hungry, such internal controls over government operations as the division of the most basic operations of government into three distinct parts is sensible. Now, if no governmental junto in one section of government were ever likely to try to usurp the power of all the other branches, no such separation would be required. But alas....

Unfortunately, as Paine explained in his Common Sense, separation of powers, no matter how strict, cannot do the trick in the real world. He wrote, "[T]he greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern: and though the others, or a part of them, may clog, or, as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavours will be ineffectual." 

Paine also seems to me to be right. That is, because men are not angels, it makes sense to separate govenment into branches as Madison suggested, but that won't take care of the problem either, because from time to time one branch is quite likely to attempt to overpower the others (as is currently happening in the U.S. under Trump), and success in such endeavors remains not just possible but a real danger.

What should be done then? I think the answer is quite clear: if, ultimately, governmental power comes from those who are governed, (something on which every one of the observers mentioned above all agree), it is absolutely essential that every good democracy contain unremovable Constitutional provisions for both Recall (the ability of the electorate to remove any governmental office-holder by a relatively quick vote) and Referendum (the ability of the electorate to repeal any law or regulation by vote). No good constitution can lack either of them.*  

Of course, we don't have any such provisions in the U.S. Constitution. That makes it a poor excuse for a democracy-protecting document. Instead of worshiping that old and creaky fundamental law of the country, it needs to be fixed or replaced. And because, unlike Recall and Referendum provisions, no separation doctrine can be discovered a priori, such provisions should not be reckoned among those Constitutional enactments that may not be changed as experience recommends.#

Readers may complain that I have not answered the question posed by the title of this blog entry. They are right: My only suggestion is that we follow the advice of Madison, Paine, the early 20th Century Progressives who pushed for Recall and Referendum, and those who are currently involved in the empirical study of what works in this area among the community of comparative political scientists.  

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*Reversal (the ability of the electorate to overturn certain types of judicial decisions by vote) may also be required, but I think it is quite difficult to get that one right without endangering Judicial independence, which seems to me necessary any authentic  rule of law. [My democracy book contains a substantial discussion of the difficulty in getting Reversal right.]

# The matter of the various types of amendability that good Constitutions should accomodate is also discussed at some length in my book.

The Apparently Disappearing Possibility of an End to Identity Politics

There have been four main strategies aimed at releasing electorates from what seem to me to be the dangerous effects of identity politics on democracy. [See my recent piece on Musk and Hegel for a blatant example of the sort of political theory one can expect to result from xenophobia]. 

One approach is that which Stalin undertook to incredible extremes. He wasn't a terribly deep thinker, but he could see that the wide variety of  languages, cultures, religions, prejudices, etc. found in his gigantic autocracy made a united citizenry very hard to obtain. As devotion to one's church or language seemed inconsistent with his central idea that the Soviet Union--and of course, he himself--were what had to be considered MOST IMPORTANT to every Soviet citizen, Stalin burned down the churches and took children from from their parents throughout widespread regions. He then had these children brought up where they would hear nothing but Russian and their only religion would be his Stalinist form of Marxism. 

In spite of the fact that this plan was in effect for a substantial period of time, as soon as the slightest bit of Glasnost was effectuated, the parents who still lived were found, the churches were rebuilt, the old languages were spoken again, the clothing and cuisine reverted to their ethnic origins, etc. It was a near-total failure.

The second approach is the one that has been taken by the United States and a number of other countries around the world. The genus has two species that have been characterized by two metaphors: that of the melting pot, and that of the mosaic. The first rejects the Stalinist selection of an ex ante choice of approved result, but agrees with Uncle Joe that one needs to end up with a single, unified culture; the second takes the position that a country may consist of numerous diverse cultures, but they can learn to be happy and comfortable living together. 

The fourth approach is that of Hitler. Neither reeducation nor expulsion is deemed sufficient, and genocide is taken to be the only answer. Of course, there may be hybrids; like Netanyahu, one may decide that either expulsion or genocide is fine.

It may be noticed that the first three visions share a dependence on education. The first two require a sort of "reeducation" that will result in some sort of cultural alteration--either purification or a sort of average produced by "melting." The third  approach depends upon instruction only to push the idea that groups which may continue to differ  greatly can come to understand that such differences need not imply either hostility or any divergence in rights or privileges. 

As indicated, Stalinism has obviously failed. Even if it could work, it is very expensive, and more than a couple of generations seems necessary for any success. It is unsurprising, then, that it has almost completely fallen out of favor. On the other hand, the Hitlerian vision seems still to attract a lot of people around the world. 

Perhaps there are countries to be found where either the mosaic or the melting pot approach has worked (or is at least making progress), but the current state of American politics provides a clear indication not only that both have ultimately failed in this country, but that whatever benefits that diversity education has attempted to foster here over the last several generations will now be abandoned. In fact, education generally will be given little or no priority by the Federal government under Trump: it is thought to be dangerous to any theory that yearns for complete homogeneity.

In the U.S (in part because of earlier genocides), it is not predominantly differences in indigenous languages or cultures that that are--in lockstep  the Stalinist and Hitlerian conceptions--thought to be harmful (but to require expulsions rather than either reeducation or exterminations). Rather, it is differences in race, religion, and ideas about gender that are taken as most dangerous. (Of course, where there ARE language differences, only one language will be tolerated.) In all cases, expulsion and the filtering of future immigrants are understood to be the solution to every sort of peril. There is no current apparent interest in either extermination or reeducation, just in getting "different" people the hell out of here.

Is there another way, a fifth approach, to address this fundamental obstacle to authentic democracy? Must we concede that, because of some sort of basic psychological feature of human beings, every truly democratic polity must be homogenous (and thus probably quite small)? 

I leave this difficult question to others with more intelligence and/or deeper insights than my own. I will say, though, that in spite of a lot of reading  and thinking about this matter over the years, no fifth approach has ever struck me as being very promising.

Second Comment on the Immunity Decision (Trump v. United States.)

 

[T]he nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.

There have been numerous objections to this holding in Trump v. United States. Indeed, lakes of both tears and ink have been spilled over it, and I can't deny that I have contributed my portion to these murky pools. In my first expression of dismay over this decision, I concentrated on a specific provision that entails that the holding is more extreme than many seemed to realize. These elaborative remarks were clearly inserted intentionally, as they shows up several times in Justice Roberts' opinion. But in spite of this problematic  content it somehow escaped the notice not only of  media pundits and legal scholars, but also of the dissenting Justices. At any rate, every summar of the decision I've seen gets this aspect wrong, and in that way mitigates its effects.

Today, however, I want to focus on a more basic matter, the question of what  is thought to be so terrible about the the granting of immunity to those who have been elected President, regardless of either the plain text of the U.S. Constitution or  any arguments regarding how its language should be interpreted. We have all heard that the U.S. is supposed to be a country of "laws, not men," and that in any such jurisdiction, "no person must ever be deemed to be above the law." 

But...why not? In a democracy, shouldn't the citizens should be the final determinants of what is and is not to be allowed under their watch? If the electorate can be said to have in some sense made, or been the source of the criminal laws when they elected those who actually put pen to paper and enact those statutes, why cannot that electorate indicate a wish to exempt this or that individual from anymore all of them? Couldn't any such exemption--including complete immunity from prosecution--be thought of as a kind of reward for winning an election, just as a number of various enumerated powers are? Can't it then be reasonably claimed that such "people power" is all that Justice Roberts' decision has made crystal clear? 

I believe the answers to these important questions can be put quite succinctly. In fact, I think that they were quite eloquently put around 250 years ago in a well-known and historically important pamphlet. But before getting to that work, it is worth looking checking if the (also fiery) Sotomayor dissent to Justice Roberts' majority decision answered these fundamental questions just as well. 

Naturally, the dissent being a legal document, it is bound to pay close attention to Constitutional language and prior decisions as the bases for claiming the majority got things wrong.  But for our present purposes we can just note that the strictly legal issues are (a) controversial and so not likely to be associated with widely convincing demonstrations; and (b) probably at least a partial function of the prior political leanings of the Justices. That is, it's hard to deny that an element of political loyalty may have been involved both among those who argued that Donald Trump absolutely must have broad immunity from prosecution, and among those who held that even if Presidential immunity were defensible in the abstract (a proposition they claim to doubt), giving it to Donald Trump must be a terrible mistake.

In such an environment, it is unsurprising that that numerous utility arguments were brought on behalf of the views pushed by both sides. For example, the Roberts contingent touched on the possibly undeserved burdens prosecutions could place on ex-Presidents, who would surely be hounded by constant suits, charges, media calls, and investigations--burdents that Trump had already had been forced to shoulder during his first term in office. Furthermore, the idea was put forward that, considering these psychic and financial costs likely to be thrust on ex-Presidents, who would to want to run for the U.S. Presidency? Shouldn't we expect the best candidates to look for other lines of work? And, of course, this cohort concluded that if only lesser candidates came to the surface, sooner or later, the entire nation would suffer.

What about the dissenting cohort? What sort of arguments--utility-focused or otherwise--did they bring? Justice Sotomayor spends considerable time on what she deems President Trump's "treasonous acts," seemingly defying anybody to find anything in the Constitution that can be thought to shield anybody from that sort of behavior. Here are ten of the acts she mentions (with all citations and internal quotations here excised): 

•  He "spread lies that there had been outcome-determinative fraud in the election and that he had actually won."
•  He "pushed officials in certain states to ignore the popular vote; disenfranchise voters; dismiss legitimate electors; and ultimately cause the ascertainment of and voting by illegitimate electors in his favor."
•  He (allegedly) "went so far as to threaten on state election official with criminal prosecution if he did not 'find' [sufficient votes to win that state].
•  He (purportedly) "developed a plan to disrupt and displace the legitmate election certification process by organizing fraudulent slates of electors." 
•  He sought to use the Justice Department "to bolster his knowingly false claims of election fraud by initiating sham election crime investigations."
•  He "falsely present[ed] the fraudulent electors as a valid alternative to the legitimate elctors."
•  He "sought to persuade the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results." 
•  He (purportedly) "attempted to use a crowd of suppoters that he had gathered in Washington, D.C. to pressure the Vice President to fraudulently alter the election results." 
•  He "falsely claimed that, based on fraud, the Vice President could alter the outcome of the election results."
•  He (allegedly) "delayed in taking any step to rein in the chaos he had unleashed [and] attempted to exploit the violence and chaos at the Capitol by pressuring lawmakers to delay the certification...and ultimately declare him the winner."

As at least many of the above-listed actions seem to Justice Sotomayor to have been obviously treasonous, she concludes that they cannot be protected under any sensible interpretation of the Constitution. And, of course, she believes that the effects on the well-being of American citizens--indeed the very future existence of the country--of allowing a traitor to rule without any fear of future punishment ought to be undeniable.

Again however, if we leave both uncertain Constitutional debates and future utility estimates aside, perhaps we can ask the more explicitly philosophical question of whether an electorate either can or even ought to make its executive (even a distinctly evil one) immune to all prosecution. After all, that seems to have been Hobbes' view of the matter. Readers here may remember his arguments to the effect that it was in the interest of people suffering in lawless conditions of nature to contract with a Leviathan who, subsequent to such agreement could not be coherently punished...or even safely criticized. On that view, even if a population insisting that  consideration of future utilities favors bestowal of Presidential immunity are dead wrong, it is completely within their "constitutent authority" to grant that protection to their President/King/Monarch/Emperor/Poobah. 

As I mentioned at the outset of this blog, however, the Hobbesian view was very effectively criticized by a not-quite-forgotten political philosopher who participated in the fervid constitution-making that occurred in France around time of its Revolution. In addition, this democrat somehow managed to keep hold of his head. I refer to the abbé Emanuel Joseph Sieyès.

Sieyès most famous pamphlet was the hugely influential What is the Third Estate? But just a month or two before publishing that diatribe, Sieyès put out his Essay on Privileges. It is notable that while Sieyès had no particular problem with the concept of monarchy in the abstract, on his conception, to be defensible, it needed to be understood to be a predominantly ceremonial office, something the people could use to identify and celebrate their homeland. He believed that it was perfectly fine to reward Kings, but they could not be endowed with any privileges (not even the power to veto legislation). He argued, in fact, that it makes no sense for the people use their inalienable "constituent power" to bestow privileges of any kind. 

Well, why not? I will let Sieyès speak for himself:

The aim of law is to protect liberty and property, and to render easier the fulfilment of the great moral precept, from which all positive law proceeds,—do no harm to your neighbour. 

What does Sieyès claim can be inferred from this first principle?

[If] there is one supreme law which ought to be the parent of all others, and that is,“Do wrong to no man.” [Then] it is this great natural law which the legislature distributes, as it were, piecemeal in applying the principle case by case to the various private orders in society.

[But] to be exempted from the action of any particular law is to be endowed with a right to harm one's neighbours. 

Provided the law in question is good-- and such as are not should not exist--to have the exclusive right of doing anything [that conflicts with it, and is therefore] morally wrong is to rob one's neighbours of a part of their liberty. 

All privileges then are, in the very nature of things, unjust, odious and opposed to the great end of all political society. 

Every law, as we have already observed, expressly says, “Do wrong to no man.” Where then any class of citizens enjoys an exemption from any particular law, it is directly saying to those citizens, “You are permitted to do wrong.” There is no power on earth which should be authorised to make such a concession. If a law is good it ought to bind every individual; if bad it ought to be abolished. It is an assault upon liberty.

All privileges, then, from the very nature of things, are unjust, odious, and contrary to the supreme end of every political society.

Where then any class of citizens enjoys an exemption from any particular law, it is directly saying to those citizens, “You are permitted to do wrong.” There is no power on earth which should be authorised to make such a concession. If a law is good it ought to bind every individual; if bad it ought to be abolished. It is an assault upon liberty.

The entire body of citizens is the principal object. It is that which is served. Ought it then in any sense to be sacrificed to a servant who is only entitled to a reward for having rendered it a service?

But what about the additional power we give to our political leaders, or the other rewards bestowed upon them? Is that also an absurd, contemptible idea? Not at all:

Reward the member that has merited well of the body; but do not perpetrate the absurd folly of abasing the body before the member. 

I should note that Sieyès does not ignore utility considerations in his pamphlet or elsewhere in his writings or speeches. But in discussing those expected results here, he concentrates on what any privilege similar to immunity from prosecution is sure to have on those on whom it is bestowed: 

The professed intention of the privilege [may bave been to incite him to better actions, but it has succeeded only in depraving him.

His heart [will become] agitated with a desire of being first, with an insatiable thirst of domination. This desire, unfortunately too agreeable to human nature, is a true antisocial malady, and, from its very nature, it must always be detrimental. Judge then of its ravages, when opinion and the laws of a country conspire to lend it their power and support.

Thus sayeth Abbé Sieyès. I have to admit that this skeptical cleric seems to me a kindred spirit. (Is this because of or in spite of his well-known character flaws? Hmmm. Quien sabe?) But Sieyès somehow managed to avoid the guillotine and live a long--if not terribly happy--life. He reminds me, in fact, of another flawed and regularly derided revolutionary whom I also admire, Viktor Chernov. Both squandered what power or influence they ever managed to obtain. But, at least for part of their careers, each was a thoughtful and committed democrat. And they were both escape artists of the highest order: while one miraculously avoided the Jacobins' guillotine, the other somehow managed to outwit  the Bolsheviks, their pick-axes and gulags. One hated his king the other his tsar, but neither was ready to replace his ruler with a dictatorship of either sans-culottes or proletariats.

To conclude (as I often do here at luckorcunning), let me urge a focus on finding that course of action which would be most authentically democratic under the circumstances. Such a move is often necessary not only to improve a polity but in some cases to keep it alive. And bestowing prosecutorial immunity to a current or past head of state is exactly the opposite of what is called for by democratic principles.

Is Elon Musk a Hegelian?

 

Just the other day, in response to a question from an interviewer, Elon Musk said this (essentially anyhow, I've cleaned it up a bit for him):

If you took the people of Italy and teleported them to the United States, the land where they came from would still be Italy. But if, after all the Italians had been teleported to the U.S., you teleported a bunch of people to Italy from some other part of the world, then the geographic region where those immigrants landed would no longer be Italy. It would be that other country from which those people had come. A country is its people not its geography.

If you remove the unecessarily nerdy "teleport" business, this remark is bound to remind some people of Hegel's views regarding Volksgeist or national spirit. On the orthodox interpretation of the Hegelian conception, what makes a nation is basically a matter of its cutural and religious traditions. That Italy is currently located somewhere in Europe is just a historical accident: what makes that place Italy is essentially a matter of language, religion, ethical views, public law, cuisine, arts, fashion, etc. According to Peter Wolsing, such a view "recognizes no higher ranking international right, nor does it defer to ideals of universal human rights [since] universal right is necessarily rooted in a particular nation state."* 

As Hannah Arendt wrote in her Origins of Totalitarianism, "The practical outcome of this [Hegelian conception] was that from then on human rights were protected and enforced only as national rights and the very institution of a state, whose supreme task was to protect and guarantee man his rights as man, as citizen and national, lost its legal, rational appearance and could be interpreted by the romantics as the nebulous representative of a 'national soul' which through the very fact of its existence was supposed to be beyond or above the law."

Aside from the dire political perils, one may wonder what Musk would consider to be the effect of a migration of only a portion of the population  in one direction or another.What happens if only half of Italy leaves and is replaced by immigrants? Or, again, consider the results of the population of (European-based) Italy moving to a previously emptied out portion of a federally organized polity like the U.S. Suppose, for example, that 50,000 Italians moved en masse to a completely decimated Rhode Island and so had become the only people living in that area. Would that mean that an "American Italy" now exists in the midst of the states that had formerly comprised New England? Would those Italian citizens therefore not be subject to U.S. laws...or would that just be a matter of which group has sufficient power to subdue the others (the non-Italians or non-Americans) and enforce what laws it wishes within this region's borders?** It certainly calls for an extremely Schmittian analysis.

In sum, Musk's offhand remarks are not simply the expression of a dangerous vision, one long associated with 19th Century romanticism, 20th Century Nazi ideology, and current justifications for geoncide, they can also be seen to be incoherent when looked at closely. As I discuss in my book, there are numerous reasons for concluding that polities need to be understood to be essentially territorial/geographical or nothing sensible is likely to be drawn from the world of politics and law.

* From "Hegal on Ethical Life and the Modern State." It is important to note, however, that Wolsing himself thinks that Hegel's position is more liberal than a strict focus on Volksgeist suggests because of his conception of a historical world spirit--the "higher universal law of history." I want to stress that I am not a Hegel scholar; I here just report a long orthodox interpretation of Hegel's influence on later political positions. For a detailed, discussion of many of the relevant issues involved here, I recommend Istvan Hont's classic paper "The Permanent Crisis of a Divided Mankind: nation state and nationalism in historical perspective."

** It's also easy to see how this conception might invite the dreaded sorities paradox to swallow up the entire issue.

Przeworski on What Makes for Democratic Polities and Policies

 

 In a recent paper in the Journal of Democracy, Adam Przeworski asks "Who decides what is democratic?" As someone who has spent many years pondering the nature and requirements of self-government, perhaps I may be excused for having the initial inclination to answer, "Hey, I'll do it!"  But, in reality, this is a trick question–even though it’s not clear that Przeworski has entirely understood this himself. For whether a polity, the assumption of governmental power by an official, or the enactment of some policy is democratic (or has been democratically accomplished) requires that a crucial distinction be made–and it isn’t quite the distinction between “maximalist” and “minimalist” democracy that he outlines in this paper. The more basic ambiguity is between (i) The consensus regarding whether the polity (or promotion or enactment) has characteristics sufficient for its classification as “basically democratic” among ranking organizations, media outlets, NGOs, scholars, etc. around the world; and (ii) A determination of whether the polity, promotion or enactment is consistent with all the principles required for authentic self-government--whether the gaggle in (i) approves of it or not.

It should be clear that (i) and (ii) need not always have the same answer. For example, it is commonly said these days that Americans are now in danger of “losing their democracy,” and, of course, the U.S. was generally deemed a democracy before blacks or women were allowed to vote. So, it should be obvious that assessments of that nature involve type (i) acceptability only. What I mean is that most of us will now agree that before universal adult suffrage, the U.S. was not authentically democratic; and I hope many will agree with me that, with its Electoral College, Senate, gerrymandered districts, Filibuster rule, etc. it has always been and remains a considerable distance from meeting the criteria for legitimate self-government, however it happens to be classified by the media. [This matter is discussed in substantial detail in my book, as well as in a critique of epistemic democracy that is forthcoming in the journal Prolegomena. Indeed, regular readers of this blog are bound to know that this matter is something of an obsession with me.] Nevertheless, I can concede that some U.S. elections and the passages of some state laws--(maybe only in unicameral Nebraska!) may have been democratically produced, even pursuant to (ii).  

 

Przeworski seems to me to have been right to distinguish outcomes from procedures in his paper. However, while such demarcation is essential to his minimal/maximal distinction, it ought to be seen to have nothing much to do with answering either of what I claim to be the more basic questions involving (i) and (ii). I suspect he wouldn't go quite as far as I do on that matter, but he does believe that violations of “norms of universalism, equality, or freedom, which many see as essential to democracy,” can occur even via apparently democratic procedures.

 

In my view, figuring out precisely what authentic democracy requires is key here: some disturbing outcomes may be democratic, others cannot be, regardless of the apparent purity of the procedures utilized. But answers aren't necessarily a matter of the outcomes in any case: the procedures themselves are disqualified if, e.g., political speech or association rights haven't been guaranteed in advance.   

 

With respect to the strictly procedural aspects, Przeworski makes “judges” the guardians. That seems confused to me, since courts should be expected to follow/interpret the basic laws of their jurisdictions, and there is no reason to suppose that these laws are all consistent with the characteristics required pursuant to either (i) or (ii).  On the other hand, I believe that he is right when he says that democracy is “just a terrain on which somewhat equal and somewhat free people struggle for the realization of conflicting ideals, values, and interests.”

Some of the Things I Heard at the Yale Law School Conference on Free Speech

A few days ago, I attended three of the four sessions of an extremely interesting and timely conference on the First Amendment at Yale Law School. Here are the talks I caught:

Friday, March 28

9:15 a.m. | Welcome/Opening Remarks | SLB 129

• Organizers: Jack Balkin, Genevieve Lakier, Mikey McGovern

9:30 a.m. | Panel 1: Media Environment | SLB 129

• Chair: Paul Starr, Princeton University

• Yochai Benkler, Harvard Law School

• Mary Anne Franks, George Washington University School of Law

• Eugene Volokh, Hoover Institution

11:15 a.m. | Panel 2: Polarization | SLB 129

• Chair: Robert Post, Yale Law School

• Nicole Hemmer, Vanderbilt University

• Liliana Mason, SNF Agora Institute, Johns Hopkins University 

• Ganesh Sitaraman, Vanderbilt Law School

2:15 p.m. | Panel 3: Political Marketplace | SLB 129

• Chair: Rick Hasen, University of California, Los Angeles School of Law

• Rick Pildes, NYU Law School

• Bradley A. Smith, Capital University Law School

• Ann Southworth, University of California, Irvine School of Law

There was an additional panel Friday as well as several more  Saturday but, unfortunately, I couldn’t make those. I wasn’t familiar with the views of all the speakers, and was concerned as I drove down from my Greenland-population-sized town north of Boston that the event would be something resembling a Yale choir performance in a lovely, Hogwarts-style  echo chamber, but that was incorrect. While most of the speakers I heard were the sort of  liberal legal scholars that one likely would have expected to learn from at a conference in these dire times, there were also two “conservatives” and at least one unfiltered socialist.  

I assume all the papers will be available before long–if they aren’t already, but I wanted to give a sense of some of what I was continuing to mull over on my drive home. Some of the remarks below are directly from the written versions of the presentations which were provided a few days in advance of the meetings: I will put those in bold. Others are paraphrases of statements that I take either from my notes or recollections of presentations or conversations: those will be in italics. My own thoughts will be delivered in unaltered text, but put within {braces}.

1. Genevieve Lakier, Welcome/Opening Remarks

[I]f Trump came back to office, everyone knew that his administration was going to be a repressive one, despite all of his efforts to claim the mantle of free speech. Still, we did not know then, when we first began planning this event, how significant the scale of the crisis would be.

[S]tudent activists, meanwhile, face expulsion or severe institutional discipline of a kind that universities have not handed out in many cases for decades, as a result of the pressure the federal govt is placing on those institutions.

This concerted, aggressive and ambitious campaign of repression resembles in many respects the repressive practices of the McCarthy Era….During the 1950s it was the threat of subversion by the Fifth Column of international communism that the government relied upon to justify its actions. Today it is threat of the terrorist supporters or Hamasniks that populate our colleges, as well as the threat of the advocates of racial equality that does so.

[W]e are once again faced with a federal government that is utilizing all of the enormous power it possesses to chill the speech of its political enemies and to dominate what is supposed to be the “robust sphere of private liberty” that is the democratic public sphere.

The Trump administration is not putting people in jail for their speech—even though I am sure it would dearly love to do so—because putting people in jail for their speech, as we all know, is a really hard thing to justify under current First Amendment law. What it is doing is using more indirect tools to chill speech and punish those who fail to comply.

{As you see, Prof. Lakier delivered a very fiery and passionate opening to the conference.}

2. Yochai Benkler, Two comments on free speech, democratic crisis, and the collapse of neoliberalism

You cannot be a left-liberal party if you only lead among those in the top third bracket of income and trail everywhere else.

Democratic victories in the last decades generally helped upper-class, educated minorities. Democrats need to focus not on freedom generally, but specifically on freedom from want and fear.

It is difficult to understand the persistent refusal to report President Biden’s infirmity in late 2023 and early 2024; or the lock-step enthusiasm about the unchallenged ascendance of Vice President Harris other than a reflection of parallel propaganda feedback loops in the center-left that for a longer period have forced the center-right farther to the right.

[W]hile the business wing of the profit-reaping classes was telling working- and middle-class families that their work was no good, the progressive wing of the professional and managerial class told them their identity was no good.

In…classic "terrorism"/violence/danger cases, anarchists, pacifists, socialists, and communists got glorious dissents we celebrate to this day, but ended up losing. Precedents set in cases against immigrants like Abrams ended up legalizing the Espionage Act cases that led to incarceration of anti-war citizens, Debs most prominent among them.

{Throughout the day, Prof. Benkler distinguished himself in his comments, both by his focus on alleged economic failings of liberal democracy and because of his extremely wide erudition. I was particularly taken by his impromptu references to Lillburne and Wildman in connection with…well…something a speaker was discussing at the moment.}

3. Mary Anne Franks, From Watchdogs to Lapdogs: Selling Out the Fourth Estate for Scraps at Trump’s Table

The idea that conservatives have ever been attacked/suppressed by left media and government is just a lie. And what might be called a “censorship industrial complex” has grown up on the right as a result of this lie.

This take is not new. Dorothy Thompson said much the same thing in late 1930s. 

The Jan. 6 insurrection caused social media to make a brief, limited effort to clean things up. But the big lie prevailed and by the time of Trump’s second inauguration, the big media companies had moved from their brief investigatory posture to a strong, unified support of Trump, and hence, the insurrection as well.

{FWIW, I thought Prof. Frank’s impromptu remarks were very incisive, and indeed superior to her prepared talk, which reads a bit like an op-ed piece one might find in Politico or The Guardian. I sometimes think the ferocity of her written work undermines its effectiveness. It may be necessary to hear her speak to understand how astute she is.}

4. Eugene Volokh, The Crisis of the Media Environment

{This paper begins with something of a prank. First there are  expressions of consternation regarding media misinformation and disinformation, because those are alleged to have had a significant effect on the 2024 election of Donald Trump. Of course, this claim will be nothing new to those who watch CNN or MSNBC. But Prof. Volokh’s trick is that the sole example of disinformation he discusses is the continuing failure to report Biden’s alleged long-evident cognitive decline, something that only became obvious to the electorate because of his disastrous debate performance. It was this failure of the media that Volokh claims to have made Kamala Harris’s (allegedly weak) candidacy inevitable and so resulted in Trump’s victory. (I have to admit that his prank was successful in my own case: I was indeed surprised when he disclosed his sole example of Trump-helping dissemination of disinformation: on this view, the left is to blame for its own demise!) I must say it was kind of fun to watch his fellow panelists scowl at Volokh throughout his talk.}

The mainstream media was either intentionally misleading the public or was easily duped by the Biden Administration. Taking advantage of them in this way was fairly easy because they are predominantly leftists. Human nature simply took over, so they could not be effective watchdogs. Naturally, Biden staff had many reasons to be supportive of their chief, but one could hope that the media would see through this. That they didn’t (or wouldn’t) was a major reason for Trump’s 2024 victory.

5. Paul Starr, A Free Press at Risk: Three Stages in the Emerging Crisis

Hard as it may be to believe, the judiciary wasn’t a factor in the growth of a free press in the U.S. until the 20th Century. Rather, it was acts of Congress that were most responsible. Such subsidies as franking privileges for newspapers is but one example. So it wasn’t so much the negative requirements of the 1st Amendment as it was the positive contributions provided by Congressional acts that we have to thank for what we call “Freedom of the Press.” 

Today, the way advertising is structured by media companies actually encourages the dissemination of fake news. And we should expect AI to make this situation even worse. 

There is a growing alignment of media companies with autocratic regimes around the world. What is happening in the U.S. today closely resembles what Orban has brought to Hungary. Governments don’t actually need to “take over” media companies: they can simply arrange for their purchase by buyers that are extremely friendly to the regime. 

It is worth remembering that consumption of news was largely an accidental thing for several generations of Americans. They may have bought newspapers for the sports or the funnies or watched Cronkheit while they waited for Andy of Mayberry to come on. All the television stations had news on at the same time, and nearly every paper had world and national news on its front cover.

{I found this talk very enlightening: it made me want to read Prof. Starr’s forthcoming book.}

6. Ganesh Sitaraman, Delaware, Horses and Parades

{Prof. Sitaraman was unable to attend; his presentation was read by Mikey McGovern.}

I think the crisis of free speech in the 21st century is, in part, a crisis of non-institutional thinking. By that, I mean that academics, policymakers, and jurists have not been thinking institutionally enough.

[W]here are the Federalist Papers of corporate law? Policymakers in the Gilded Age and Progressive era devised external constraints on corporations – antitrust laws, public utility regulation, taxation. Later theorists claimed that shareholder democracy would discipline the corporation, a claim that obviously fails, if we consider the vast power tech platforms have today. “How should the institution of the corporation be governed” is a question too often left to the law and economics crowd or the private law scholars, even though many of the central issues of public policy turn on this topic.

Decades after the rise of the tech platforms, contemporary debates around tech regulation have still insufficiently reckoned with the necessity of business-line specific regulations.

Meaningful progress on tech platform regulation requires disaggregating the technology sector into distinct business lines and then developing the appropriate regulatory regime for each business activity, in addition to assessing the specific First Amendment considerations that emerge in context.

I think we should be shocked that the Supreme Court, legal advocates, and scholars, seem to think it makes sense to analogize a social media platform to a parade….And yet, our First Amendment doctrine has developed in a way that debates over parades are one of the primary analogies for how to think constitutionally about social media platforms. This is ridiculous.

The unifying point is that across these areas – corporate governance, regulatory policy, and the First Amendment – I think there has been too little specific thinking about institutions.

{I was sorry Sitaraman wasn’t present, because I found his paper  thought-provoking and important, particularly the section called “Horses.” It seems to me hard to deny that the U.S.  hasn’t succeeded in producing any sort of coherent regulatory scheme for media platforms. It would have been nice to get a chance to discuss that issue further.} 

7. Nicole Hemmer, How the Right Learned to Stop Worrying and Love “Free Speech”: Evolutions in Free Speech and Polarization

Misunderstandings of both terms and facts have led to authoritarianism and polarization. For the right, such misinterpretations are intentional, a tactic. Thus the fact of increased polarization shouldn’t be seen as a neutral matter that can be agreed upon by both sides. This is true of “free speech” as well. For it isn’t actually anything that ought to be called a “shared value.” Rather, the concept is used by the right as a strategy to get at least temporary agreement from liberals on some matter. The outcome of this faux alliance has been authoritarianism. 

Republicans actively pursued polarization as a strategy for consolidating their base, disciplining their officeholders, and demonizing Democrats.

From the start of the Cold War, right-wing activists used claims of censorship to explain why they lacked power and needed to build their own alternative institutions. In the early 1950s, as right-wing activists began launching media enterprises to spread their political agenda, they repeatedly pointed to a “blackout” of their ideas in existing press outlets.

[A better understanding of this matter] helps explain why these self-professed defenders of free speech have been the most fervent advocates and agents of government censorship in the 21st century. (Donald Trump and Elon Musk now call for journalists to be jailed, interfere directly in university curricula, and have reshaped government communications and agencies around lists of banned words and concepts.)

8. Lilliana Mason, From Polarization to Speech: The Rejection of Pluralistic Democracy as Threat to Speech

While scholars have mostly focused on the political sorting of the parties over the last couple of generations, there has also been a “social sorting” going on. People who, like Trump, were already haters, have been increasing brought together and galvanized.

The American right has grown gradually more committed to the project of undermining democratic pluralism as a central requirement of American democracy. 

[C]itizens’ sentiments toward politically aligned groups shape their partisanship regardless of their own group memberships, revealing the importance of sentiments toward both social in-groups and out-groups. We don’t just love our party because it is made up of people like us, we also hate the other party because it is made up of people we have long hated.

Trump organized a preexisting faction of intolerant Americans and gave them a great deal of control over a major political party.

[A noncommital/neutral framing of discussions of polarization] is, and has been, obscuring the largest threat to American democracy that has existed in decades. The polarization frame focuses our attention on the dispute between the parties instead of the threat posed by an authoritarian takeover that has occurred on the right – and now, across the national government.

{I found Prof. Mason’s presentation to be both interesting and compelling, but, as I mentioned at the conference, I think she needs to find additional support for two assertions: First, that “social sorting” didn’t simply result from the complete party sorting that took place largely as a result of APSA’s 1950 study on “responsible parties” (See my discussion of that mess here and here). And second, that a showing of disdain for DEI is sufficient to indicate a desire for rule by white, male Christians. I don’t say she’s not right about both of those claims, but I don’t think she’s made the case…at least I don’t think she’s done so here.}

9. Robert Post, Political Polarization, the Internet, and Free Speech

Polarization undermines the ordinary political processes by which public opinion is formed. If polarization becomes sufficiently severe, if it reaches the existential levels of friend/enemy opposition famously described by Carl Schmitt, then public opinion can no longer guide the state, and freedom speech will have lost its function. That is why Chantal Mouffe, while strongly insisting that politics must reflect relationships of profound opposition, nevertheless distinguishes “agonism” from the kind of “antagonism” in which “the two sides are enemies and who do not share any common ground” and so “treat their opponents as enemies to be eradicated.”

In prior forms of mass communication, gatekeepers warranted the epistemological authority of the news they conveyed. But Facebook features no such elite gatekeepers. The structure of epistemological authority produced on social media is more like that created in self-reinforcing circles of gossip.

Although traditional mass media often targeted discrete groups who were potentially at odds with each other, social media actually create such groups. As social media increasingly integrate the virtual public sphere into the conduct of everyday life, so does its potential to create powerful groups whose influence permeates ordinary living.

The implications for democracy of these developments are obviously profound. As we lose the ability to identify figures of authority whom the public can trust to distinguish truth from fiction, we correspondingly lose the capacity to establish common facts. Hannah Arendt has rightly observed that we cannot inhabit a common political world unless we acknowledge shared facts.

[T]he main theory of countering misinformation ‘seems to be to enforce an intellectual quarantine, policed by media fact-checking and authoritative expert statements. And I’m sorry, but that’s just a total flop. It depends on the very thing whose evaporation has made vaccine skepticism more popular – a basic trust in institutions, a deference to credentials, a willingness to accept judgments from on high’. [here quoting Ross Douthout]

Severe polarization thus potentially undermines the entire point of freedom of speech.

{I particularly enjoyed Prof. Post’s attempts to soften Prof. Benkler’s economic interpretations and solutions throughout the day by suggesting his own multi-causal approach, i.e., his more centrist liberalism. He mentioned that he was about to start a segment on Schmitt in one of his classes: and I must say that I'd love to attend that!}

10. Ann Southworth, How Should Courts and Others Conceptualize the Relationship Between Speech and Money?

The Supreme Court’s first major ruling on the constitutionality of campaign finance regulation, Buckley v. Valeo, gave opponents of regulation some of what they wanted. It upheld contribution limits and disclosure requirements, but it struck down caps on independent expenditures and limitations on candidates’ use of their own money in their campaigns. It found that the only permissible justification for campaign finance restrictions was to prevent corruption and the appearance of corruption, and it flatly rejected the notion that government could limit money in politics to promote political equality.

Citizens United’s broad holding—that independent expenditures by corporations and unions cannot be limited—led almost immediately to the D.C. Circuit’s ruling that contributions to super PACs cannot be limited. What little remains of federal campaign finance law appears vulnerable to attack under the logic of the current doctrine, which imagines freedom of speech as a restraint on almost any government action that restricts the ability of individuals and institutions to use money to influence elections, so long as those actions fall short of quid pro quo corruption. 

The 2024 election campaign and President Trump’s inaugural fund attracted staggering sums from billionaires and from industry sectors (e.g., oil and gas, crypto, tech) with obvious interests in defeating regulation. Donald Trump did not hide the transactional nature of his fundraising requests. In some instances, he all but promised policy influence in return for financial backing, and he is now delivering on some of those implicit deals. Elon Musk is the most obvious (but hardly the only) example of a major donor who enjoys special access and clout in the new administration. He gave at least $288 million to super PACs supporting Trump, and now, as leader of the “Department of Government Efficiency” (DOGE) and unofficial member of Trump’s cabinet, he is bulldozing the federal government and hobbling efforts to regulate his companies, domestically and abroad.

{Prof. Southworth’s cogent presentation made me think I should read her recent book, Big Money Unleashed: The Campaign to Deregulate Election Spending, but the general pessimism exhibited by the entire Political Marketplace panel definitely dampened that urge a bit.}

11. Rick Pildes, Democracies in the Age of Fragmentation

Nothing more dramatically demonstrates the previously unimaginable political power individual actors can now attain than the story of Germany’s “Rezo,” a twenty-six-year-old music producer on YouTube (his real name is unknown). One week before Germany’s 2019 elections for the European Parliament, surrounded by his guitars and synthesizers, he produced a slick, fifty- five-minute mash-up video that mixed analysis and expletive-filled polemics in a relentless attack on Angela Merkel’s ruling Christian Democrats, as well as the Social Democrats and other parties….Rezo’s video was seen a staggering nine million times in the week before the election, though he had no previous political involvement. The Christian Democrats thought his video was filled with lies, distortions, and misleading information, but addressing it quickly became a crisis. Scrambling to respond effectively, the party published an open letter—if you can imagine—addressing each line of Rezo’s attack. In this final week when the video appeared, the CDU plunged 7 percent in polls.

[Spain’s recent] Indignados movement was, at a minimum, an expression of outrage about the situation and the country’s political leaders; it was an anti-party movement of negation….Although the movement demanded change, its demands were nebulous. The “key message” of the protesters, wrote a participant and later student of the movement, “was a rejection of the entire political and economic institutions that determine people’s lives.”....The movement had at least one major political consequence: it spawned the fragmentation and paralysis of Spanish politics, described above, in which governments were so unstable that four national elections had to be held in four years.

In France, the Yellow Vest insurgency ironically disrupted Macron’s government soon after he was elected. Macron himself—a political novice, who formed his own party just a year before his election—had come to power as “le disrupteur” of French politics. Yet the Yellow Vests, set off initially by Macron’s proposal to raise taxes on diesel fuel as a means to combat climate change, staged fifty-two consecutive weekly protests and….Macron became effectively trapped in his office, trying to remain “invisible,” because any public appearance would lead to the nearly instant mobilization of spontaneous, yet somehow organized, large street crowds of Yellow Vest protestors.

The last decade has also witnessed the almost overnight emergence of digital, pop-up political parties with major effects on politics. The most successful of these digital parties thus far is Italy’s Five-Star Movement (M5S). Officially launched in 2009, in the aftermath of the financial crisis, its leaders believe that representative, parliamentary democracy has run its course and that “[w]e live in an era of disintermediation, where we are bypassing the old middlemen.”....In the 2018 general elections, M5S received the largest vote of any party.

For Five Star, Beppe Grillo, its co-founder, exclusively owns the movement’s brand. Through his ownership he exercises complete control over the party’s strategic decisions; once the party won seats in government, many elected members left the party because of Grillo’s dominating control.

In the UK, after the Brexit referendum in 2016 and the collapse of the UK Independence Party (UKIP), Nigel Farage decided to model a new UK party— the Brexit Party—directly on the Five Star model….Announced in March 2019, the Brexit Party quickly became the fastest growing party in British political history.

The overnight success of these parties has not made them effective at governance. Quite the contrary in fact. Sometimes they say they don’t want laws at all. Sometimes, it’s impossible to locate a specifi position being endorsed. Furthermore, they are undependable and generally incompatible with other parties in parliamentary coalitions. 

Opposition to government action, or demands for the government to act or act differently, will be easy to mobilize and constant. Politics and government will be continually turbulent, but less able to deliver effective responses on the issues roiling the day….But if democratic governments cannot overcome the profound challenge political fragmentation now poses and deliver on the issues their citizens find most urgent, dysfunction and distrust could give way to worse.

{I didn't think Prof. Pildes talk was entirely apposite to campaign finance or "the political marketplace," and pondered whether it was just an excerpt from another paper he's working on or has already published. But it was interesting nonetheless.}

12. Bradley A. Smith, Campaign Finance and Free Speech: The Extreme and the Mainstream

What has struck Prof. Smith most in both his studies and litigation regarding free speech issues over the years is the extent to which focus has been placed on “extreme speech.”  Fake fires in theaters, pornography, racist remarks and the like have received so much of the attention, while the staunching of more mainstream political speech has been largely ignored, particularly by the left. 

[T]he true test of one’s First Amendment bona fides comes when speech is on the line that is not patently offensive or does not represent the extreme fringes of political discourse. It is when we encounter speech that has greater value, that has the ability to affect public policy, that may in fact shape our great experiment in democracy and self-government, but with which we disagree or firmly wish was not stated, that the First Amendment rubber truly meets the road.

The Supreme Court has repeatedly said, and I think most people would intuitively agree, that the core of the First Amendment is political speech. “The First Amendment,” the Court has said, “affords the broadest protection to such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the

people.’

In my experience, many a “man on the street” will react to a claim of constitutional protection against campaign finance regulations by saying, “money is not speech.” But few who have really thought about it—including that same “man on the street” after one or two questions and a few moments thinking—will deny that campaign finance regulations deeply embroil the First Amendment. That campaign finance regulation cuts at core First Amendment liberties is not terribly controversial amongst scholars, and certainly not amongst judges.

What is most unique about campaign finance regulation is that it is not aimed at “offensive,” “extremist,” or “low-value” speech—it is aimed directly at the mainstream expression of views that happen to be inconvenient for or disliked by persons who have the power to suppress that speech.

Fortunately, the Roberts Court has been solicitous of free speech in the form of campaign spending and contributions, often to near hysteria from the left. After all, a case such as Citizens

United…was ultimately about whether the government could prohibit the distribution of a documentary movie about a major political candidate merely because it was distributed by a corporation—like every other movie you see on cable, streaming, or in the theater. 

{I admit to being a bit surprised at the demotion of Citizens United here to a minor league, fairly obvious ruling. Surely the person on the street–as well as the mainstream media–has long made quite a big deal about whether free speech rights should have been extended by SCOTUS to non-natural persons. And the denial that such an extension is appropriate doesn’t seem to conflict with very many people’s views about what political rights absolutely must be protected in a democracy. However, after considering the contents of Rick Hasen’s remarks as well as discussing that matter with him, I do think the importance of Citizens United may really have been a bit overblown. I mean, roughly a zillion dollars was donated by oligarchs in the last presidential election without need of any assistance from corporate donations. After Buckley v. Valeo, all seems to have been pretty much lost on the campaign finance front. I’d still like to see a return to the Zapple Rule myself though. See my book (pp 199-204).}

13. Rick Hasen, The Rise of the Nine-Figure Donor as a Prelude to American Oligarchy

In the 2024 elections, the top six donors supporting or opposing federal candidates each reported contributing at least $100 million, according to data compiled by Open Secrets. These

donors—Elon Musk ($291.5 million), Timothy Mellon ($197 million), Miriam Adelson ($148.3 million), Richard and Elizabeth Uihlein ($143.5 million), Ken Griffin ($108.4 million), and Jeffrey and Janine Yass ($101.1 million)—all exclusively supported Donald Trump and other Republican candidates (except for the Yasses, who gave a nominal $1,500 contribution on the Democratic side). The biggest donor on the liberal side (after Trump-supporting $64.8 million donor Paul Singer) was former New York City mayor and publisher Michael Bloomberg, who gave $64.3 million total, with all but $1 million going to the Democratic side.

These numbers do not include all of the spending and contributing by these ultrawealthy individuals (including amounts contributed to non-disclosing political organizations organized under section 501(c)(4) of the Internal Revenue Code). Take the spending of the world’s richest man, Elon Musk. Even the $291.5 million figure does include the value of content on his social media platform X (formerly Twitter), which reaches hundreds of millions of users. Musk reportedly tweaked the platform’s algorithm to promote content favorable to Donald Trump, something quite valuable but hard to precisely value.

The nine-figure donor emerged in American politics in the last few election cycles because of Supreme Court decisions relying on deregulatory bootstrapping under conditions of intense political polarization. In the 1976 case, Buckley v. Valeo, the United States Supreme Court interpreted the First Amendment of the United States Constitution to allow an individual to spend unlimited sums independently supporting or opposing candidates for office, a ruling that limits meant to equalize the voices of those in society to influence elections were “wholly foreign to the First Amendment.” 

The actual holding of Citizens United v. FEC was less important than the reasoning employed by the Supreme Court; roughly speaking, the Court made a number of doctrinal moves facilitating campaign finance deregulation. Most importantly, the Court significantly narrowed the definition of corruption from one that included the sale of access to political figures by large donors to one more akin to quid pro quo bribery.

Open Secrets data show that the top 100 donors gave almost 70 percent of total money to outside groups like super PACs. The top 1 percent of donors gave 98% of the outside money. And thanks to changes in technology such as the rise in social media, the ultrawealthy have new ways to transform their economic heft into political might without running afoul of any regulation.

One should not pooh-pooh what the data show about how much money oligarchs are putting into campaigns based on the theory that tons of small contributions may have countervailing effects, as they did in the Trump-Harris election. That's because we do not see huge numbers of small donations in campaigns smaller than nationwide affairs. E.g., there will certainly not be enough small donations to counteract what Elon Musk is up to currently with respect to the judicial election in Wisconsin.

Plutocracy and oligarchy, rule by the wealthy and superwealthy, threaten democracy….[S]ocietal attempts to achieve political equality (or at least minimize grotesque political inequality) [should not be seen as] “wholly foreign to the First Amendment.”