Category Archives: Election Law

How The “Top 2 Open Primary” System Limits Voter Choice

Measure 90 in Oregon is on the ballot, which will create a top 2 open primary system where voters pick between all candidates running for an office and the top 2 candidates, regardless of the parties the candidates are or the percentage the winning candidate receives. So theoretically, there could be a general election between two Republicans or two Democrats. This is the system in use in California and Louisiana.

Supporters believe that it will decrease partisanship and increase voter choice. One of the strongest arguments supporters of “top 2″ make is that non-affiliated voters are shut out of the process because the major parties close their primary process to non-party members.

However, the “top 2″ open primary system limits voter choice because minor party candidates, unless they’re wealthy or well-known, will not have an opportunity to enter the general election. Also, this will essentially make political parties meaningless and empower special interests. Finally, this is essentially an incumbent protection racket because the anti-incumbent vote can be split up and made irrelevant. Finally, if you’re a partisan Democrat and the two general election candidates are Republicans, you’re disenfranchised and have no choice on the ballot.

It would be easier to just have regular party primaries, but require as a condition of state funding of the primary election that they be opened to non-affiliated or independent voters.

Here’s an interview on a YouTube show between supporters and opponents of Measure 90.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

Rant: People Who Don’t Link To Source Material

Earlier today, my new co-contributor Matt wrote about the ridiculous Houston city council subpoena on a group who was against the transgender bathroom-rights law.

Where did the original story come from? Right here at The Washington Times.

It’s a busy article.

It comes complete with a picture from the San Francisco gay pride parade. What does San Francisco have to do with Houston bathrooms? I’m not quite sure.

It has a minute-long vapid video featuring a reading of the first two paragraphs of the article, because apparently 300 words is such a weighty article that it elicits “tl;dr” from typical readers of the Washington Times.

And of course it has a rather superficial 300-word article touching only ever-so-slightly on the merits of the case. The article which doesn’t even summarize the basic legal rationale for the group who is challenging the subpoena. The basic legal rationale that’s so simple that I’ll summarize it for you in two sentences:

The law states that subpoenas may only ask for evidence likely to result in admissable evidence on the merits of the case and doesn’t violate various legal privileges. ADF asserts that the subpoenas are overly-broad and violate the law by asking for such wide-ranging materials (some of which are Constitutionally-protected expression and others that are attorney-client privilege or protections against nonparties to lawsuits) that it cannot possibly be within the law.

You know what the Washington Times article is also lacking? ANY GODDAMN LINK TO THE ACTUAL SOURCE MATERIAL!!

It’s not like it was hard to find. A 10-second Google search led me to the ADF web site. A prominent link on the front page of the site got me to their press release in the first 10 seconds on their site. And ADF, to their credit, linked both the subpoena and their motion to quash in the first paragraph. And it’s not like links are expensive. Hyperlinks are free.

So I read them. I realize, this is ridiculous in the days of blogging when everyone has an opinion on Supreme court decisions despite the fact that none of them ever actually reads the opinions. When I read the subpoena and the motion to quash, it was pretty apparent that the subpoena was overly broad. When you dig into it, though, there are a lot of areas of the subpoena that are quite likely to result in admissible evidence. Hence why in the motion to quash, you’ll see this statement:

The Nonparty Pastors respectfully request that the Court issue an order quashing their subpoenas. Alternatively, the Nonparty Pastors request an order modifying the subpoenas to clarify that they do not include (or a protective order declaring that the Nonparty Pastors need not produce) the requested documents that are not reasonably calculated to lead to the discovery of admissible evidence and the requested documents protected by the First Amendment privilege, the deliberative-process privilege, the attorney-client privilege, and the work-product doctrine.

In a lawsuit alleging that a city council unfairly determined that an insufficient number of petitions were gathered, the portions of the subpoena related to the records of petitioners are certainly likely to result in admissible evidence. The content of sermons discussing the Mayor, on the other hand, are clearly not. So if the city attorneys narrow the scope of their subpoena (as the WSJ–an entity which deserves kudos for actually linking the subpoena and motion!–reports they’re already backing away from), they’ll probably still be able to get the discovery information they need to prepare an adequate defense to the lawsuit.

Of course, IANAL, and it’s entirely possible that I got my legal analysis wrong. But what I do know is that I’ve already given you, the readers of The Liberty Papers, a more cogent (and more entertaining, I hope) analysis of the issues than Valerie Richardson of The Washington Times. And unlike Valerie Richardson, I actually gave you the links to go form you own opinion if you doubt my reporting in any way. Because frankly, my dear readers, you’re worth it!

Publications that give you opinion without linking to original source material are trying to keep you dumb. They either want you to keep coming directly to them for analysis (likely), or don’t want you to read the source material and realize they’ve gotten something terribly wrong. Or maybe they’re just terrified that you’ll click on the link and not come back. Or maybe all of the above. Either way, they treat you like infants.

Don’t let them get away with it. Demand better. This is 2014. I hate to use the term “mainstream media” in such a derisive tone that went out of style in about my third year of blogging–right about the time Sarah Palin started calling it the lamestream media–but even The Washington Times should have figured out how to hyperlink by now.

The Basic Premise Behind Campaign Finance Laws

A great deal of ink (or film, or bits) has been expended this election cycle, primarily on the far left (though some on the right… particularly with the more populist factions), decrying the actions of “independent” political action committees, superPACs, and “issue advocacy groups”; as somehow corrupt, evil, anti-democratic etc..

The rhetoric on the left, is that the “citizens united” decision has basically given “shadowy actors” like say, Karl Rove and the Koch brothers, effectively a blank check to “buy elections”.

Of course, the idea that we need to “get the money out of politics” has been a political meme for approximately as long as politics has existed…

… and to a degree, there is a point there. ACTUAL political corruption, in the sense of directly buying influence or buying votes; is certainly something we need to combat as much as possible.

We’ll never eliminate it of course, humans have an endless capacity for venality, greed, and self interest. That’s just the way it is…

Frankly, the only way to get money out of politics; is to get politics out of money.

By which I mean, that so long as politics has an impact on my business and my life (and it always will); if I have money, I’m going to have a strong incentive to spend it, to make the political process work to my advantage… Or even just to hurt me less.

And that’s the way it SHOULD be… I SHOULD be able to spend my money to reduce the harm that government does to me, or to try to make government come out to my advantage; so long as I am not actually bribing a legislator to vote the way I want, committing fraud etc…

There’s a simple way of combating this; and that’s reducing the power of government to impact the individual, such that they no longer have any incentive (or really, so that their incentive is lower… since you’ll never get that little political interference) to spend their money in that way.

But that’s not what these folks are decrying from the hilltops.

What they are screaming about, is essentially free speech they don’t like.

Make no mistake, money IS speech. If you don’t have money, you can’t buy media air time. If you can’t buy media air time, then you can say whatever you want, but you’ll be speaking to an empty room.

One of the basic principles of free speech, is that you have the right to say whatever you like (short of libel, slander, fraud, or incitement to crime); so long as you are not infringing on others rights by doing so.

Another one of those basic principles is that you have the right to say it… But I don’t have to listen to it, and you don’t have the right to make me.

It’s up to me, to decide who and what I listen to, and to use my own judgement and experience in doing so.

So, you may not like what these people are saying; but so long as media companies are willing to sell them airtime, you have no right to restrict that. By attempting to do so, you are attempting to regulate free speech (conversely, you also have no right to force those media companies to sell time to opposing viewpoints; another leftist canard about “fairness”).

Makes sense right?

Well, it does to me… and to the supreme court; and when it’s causes that leftists agree with they’re perfectly OK with it.

The REAL argument, comes down to this:

“We can’t allow these bad evil people and groups to speak, because although I’m smart enough to know the difference between lies and truth, the general population are too stupid to do so”

So, rather than actually convince the people of their own side of the argument, they seek to prevent the other side from even speaking.

It’s entirely consistent with the historical leftist narrative that the “proletariat is fooled by the comfortable goods of the bourgeoisie and the lies of the ruling class” etc… etc…

Their basic premise here being that if the people could only hear and understand the truth, that the leftists ideas would be universally acclaimed as true and necessary, and immediately put into place (with the leftist elites themselves in charge of course… after all, who better to lead than those who understand the ideas the best).

They can’t accept the idea that maybe people don’t WANT more government, with more power over everyone’s lives and businesses… Because that would go entirely against the ideas they have based their entire lives and identities on; and that simply can’t be possible.

…but that’s another argument entirely.

Oh and I should note that there is a “right wing” authoritarian narrative that is nearly identical in principle, that the people are too stupid, lazy, corrupt etc… To be trusted to make their own MORAL decisions; and that the force of government must be used to make people “do the right thing”. That’s equally as bad; it’s just not what we’re talking about right now.

Now… I hate these ads as much as everyone else… But not because I decry “those fools actually believe these foul lies” (though they may be foul lies, and “the people” may believe them); simply because they’re REALLY IRRITATING.

If the people actually are so stupid that they believe “foul lies”; and the other side isn’t smart enough, or doesn’t have a good enough argument to convince them otherwise…

Well, so be it.

That’s the problem with a democratic representative republic. You have to live with the representatives the electorate choose, and the things they vote for.

It’s also why it’s so critical that we have a strictly limited government of enumerated powers only… Or rather, that we return to that; as we haven’t actually had such a government since 1861.

Our government was intended to provide protection against the tyranny of the majority… Unfortunately from the first day that government was put in place, people with “good ideas” have attempted to (often successfully) use the force of government, to have those ideas implemented, without regard to the legitimate powers of government, the desire of the people, or the rights of those being governed.

The left are perfectly willing to crow about how great democracy is… until the people refuse to vote for what they want; at which point they try to get the courts to make the people do what they want anyway.

Because, as we all know, when it comes to leftist causes, they are all “moral imperatives”…

Or as a very smart man put it once “The ends justify the means”.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Why America’s “Third-Party Airline” Shouldn’t Sponsor The Debates

The Commission on Presidential Debates has been coming under a lot of fire for their exclusion of third parties this year, due largely to the fact that Gary Johnson is polling at 6% nationally and happens to be suing them* at the moment. As Reason points out, they’ve already lost three national sponsors, and are currently at a lower overall sponsor number than any previous debate.

But they still have seven national sponsors, one of which is Southwest Airlines. Southwest Airlines seems like a strange company to participate in an exclusionary political sham**, given their history as a minority carrier in the market, and the fact that they so clearly buck industry trends.

So I’m sending them the below letter. Southwest is, IMHO, opposed to the very sort of exclusionary pull that the CPD is trying to push. I’d recommend that others write, call, etc to let them know how you feel***. If you’d like, feel free to use the below as your own template (although I note that it’s too long for their email submission form, so I’m sending it by US mail).

The CPD is perpetuating a sham, and has lost three national sponsors. Let’s try to make it four.

Dear Southwest Airlines,

I am writing today to express my surprise and dismay to learn that you are a sponsor of the Commission on Presidential Debates. While I understand your goal – to create an informed electorate in American participatory democracy – I don’t believe that the CPD’s practices are beneficial to the national dialogue. Further, I don’t believe that their exclusionary policy towards third-party candidates is consistent with the ethos of Southwest Airlines, the very successful “third-party” airline.

Southwest was a beneficiary of airline deregulation – of ending the system that said that every bit of air travel should be controlled by the Civil Aeronautics Board, including fares and routes of service. Southwest was forced to defend their right to fly even intrastate flights without submission to the CAB in court, an action that rose all the way to the US Supreme Court. Southwest was unable to expand into interstate routes until deregulation occurred and the CAB was dismantled. Of all enterprises, Southwest Airlines should be especially sensitive to the abuses of monopoly/oligopoly powers.

Today, the Commission on Presidential Debates is akin to the CAB. It is a body wholly run by, and for the benefit of, the Republican and Democrat Parties. Its goals are to keep third-party candidates (and by extension, third-party ideas) out of the public eye. It’s no different than the CAB only allowing approved airlines to fly interstate routes, with one exception: it’s a field far more important than air travel – the very decision of who will exert political power over American citizens.

Two minor-party candidates will be on the ballot in enough states to have a mathematical possibility of winning 270 electoral votes; Gary Johnson of the Libertarian Party and Jill Stein of the Green Party. While I certainly think it’s unlikely that either has a credible chance to win, I find it deplorable that Southwest Airlines would support a debate organization that won’t even offer them the chance to stand on stage and offer an alternative to the major parties.
I personally believe that Southwest Airlines continues to exist in the marketplace because you are different; you have more efficient business practices that allow you to streamline operations, offering lower-cost flights while still remaining profitable. Your very existence also forces the major carriers to change their practices to meet your competition. Free competition – the competition that CPD is insulating the major parties from – causes all players in the market to improve.

You offer your customers a choice, yet by your sponsorship of CPD you support a debate organization that hides choice from Americans.

I don’t believe Southwest Airlines would appreciate a monopoly action by American and United determining which airlines were entitled to land US airports. Nor do I think Southwest Airlines should sponsor a debate organizer who determines which voices are entitled to reach the ears of the American voter. As a business traveler, I fly Southwest several times each year. I do so because you offer me a compelling product not available from the major carriers. I humbly ask that you reconsider your sponsorship of an organization that won’t allow a compelling non-major product a platform in America’s most competitive product arena – our very governance.

Regards,
Brad Warbiany

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Liberty > Democracy

Far too often, people use the terms “liberty” and “democracy” as if they were interchangeable. President Woodrow Wilson justified intervention in other countries to “make the world safe for democracy.” Most if not all of the presidents who have followed have made similar arguments as an excuse to place military bases on every continent. Democracy in of itself is no guarantee that the people will live in a free society.

One thing that drives me nuts is this notion that everything needs to be “put up for a vote” whenever the item in question is not at all the business of the would-be voters. Sometimes communities have meetings to decide if the people should “allow” a Wal-Mart to be built. Those who oppose the building of a Wal-Mart in their community argue such things as Wal-Mart won’t allow their workers to unionize*, Wal-Mart will drive out existing businesses, and Wal-Mart imports too much of their “cheap,” “inferior” products from China rather than American products. These might be valid reasons for you to decide not to shop at Wal-Mart but what makes you think you have the right to deny me that choice by holding a vote?

Perhaps a less sympathetic target to some here in Colorado are the medical marijuana dispensaries. These dispensary owners set up shop and followed the existing rules but in the back of their mind they know that community activists can shut them down if they can gather enough signatures to force a vote**.

Then there are those who believe in wealth redistribution. The “rich” need to pay more taxes to benefit the “less fortunate” we are told.

What about economic liberty? Is economic liberty somehow a lesser liberty than any other liberty? The people from Learn Liberty argue that economic liberty is of more value to the individual than any right to vote. There are just some freedoms that ought not be voted away.

*This is more of a selling point for me.
**I’ve yet to hear of a vote to shut down a Walgreens because its within 1000 feet of a school even though they dispense drugs that are many times more dangerous than marijuana.

Additional Thoughts & Further Reading:
Brad reminded me of a great post he wrote nearly 6 years ago along the same lines entitled: Libertarianism and Democracy. After re-reading my post, I realized that I might have left the impression that democracy is of no value to those who value individual liberty. Brad does a much better job explaining that “liberty is an end, democracy is a means to an end.”

In truth, democracy is often better for making decisions than monarchy, or aristocracy. After all, what can empower people more than to allow them to have a hand in making their own decisions? The key is that democracy can be used in ways that don’t reduce liberty, but it can also be used in ways that do.

So it’s not really democracy that libertarians fear, it is force. The sentiment that elicits anti-democratic quotes, though, is the fear that democracy will marshal government to impose force that destroys our liberty.

I think the important thing that people need to recognize is that there are limits to what a government should have the power to do even if the process is a democratic one. What are the limits? Simply the recognition that the individual has the natural rights of life, liberty, and property that cannot be taken away provided that s/he does not infringe on the same rights of another.

The Johnson Campaign Perpetuates the “Public Airways” Myth in Response to Latest Debate Exclusion

There’s very little doubt in my mind that the MSM and the G.O.P establishment have been doing all they can to keep certain candidates from challenging the establishment and ultimately win the nomination. Early in the campaign I wrote a response to Hugh Hewitt’s post where he suggested that the RNC should exile Herman Cain, Gary Johnson, and Ron Paul from the remaining debates. His argument was that these were all “marginal” “1%er’s”* who “don’t have a prayer” of winning the nomination.

Isn’t it interesting that “1%er” Ron Paul has won several straw polls and has even cracked the top 3 or 4 at various points during the campaign and is almost always polling in the double digits? Ron Paul is hardly a 1%er despite efforts on the part of the sponsors to limit his exposure (in the most recent debate, Paul had a whopping 89 seconds to make his case on national television).

Then there’s Herman Cain the other “marginal” candidate who until the most recent couple of weeks following accusations (whether legitimate or not) of sexual harassment along with some other missteps on foreign policy was neck and neck with the establishment favorite Mitt Romney. Cain may have fallen from grace but he isn’t a 1%er without a prayer of winning neither.

The only one of the three who is truly a 1%er unfortunately is Gov. Gary Johnson. Of the three Johnson is the only one who has been successfully excluded from all but two of the nationally televised debates. Up to this point, the Johnson campaign has encouraged supporters to write and call the debate sponsors to encourage them to reconsider but to no avail. In true libertarian freedom of association fashion, Johnson, though disappointed with his exclusion, respected the right of the debate sponsors to exclude him.

Now it seems the Johnson campaign has had enough with The Gary Johnson Rule and it’s no more Mr. Nice Guy. The Johnson campaign has now filed complaints with the Federal Election Commission (FEC) and the Federal Communications Commission (FCC) in response to Johnson’s most recent exclusion from the South Carolina CBS debate.

Here are some excerpts from the complaint filed with the FEC:

On Saturday, November 12, 2011 Respondent CBS televised on its national network another debate, but instead of including all leading candidates has elected to arbitrarily and capriciously exclude some candidates and include others. In so doing, CBS is, without any other explanation, choosing to support certain candidates. By excluding viable candidates like Complainant, who has been included by cable networks in their debates CBS is directly and significantly supporting those candidates it favors, and advocating the nomination of one of their favorites and opposing the nomination of Complainant, whom CBS evidently disfavors. In so doing, CBS is making an illegal corporate in-kind contribution to those favored candidates. The value of this contribution vastly exceeds the contribution limit that applies to any category of lawful donor.

2 U.S.C. §431 (8) (A) (i) defines a “contribution” as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” No rational person could possibly argue that exposure during an hour-long debate televised in prime time on the CBS network is NOT something of value. Indeed, CBS sells advertising spots during prime time for huge sums, and makes and reaps significant revenues in doing so. By any standard, this airtime is a thing of value within the ambit of that phrase in this statute. If all viable candidates were being included in the debate that might lead to a different conclusion, but by excluding candidates CBS disfavors –opposes—and including those it favors –supports—Respondent is violating the Act.

I believe the Johnson campaign has a very valid point in this complaint to the FEC. Whether we like the campaign finance laws or not, Johnson is bound by them and must abide by them; it only seems fair that CBS must be legally obligated to follow them as well.

Gov. Johnson’s complaint to the FCC, however; is much more bothersome IMHO.

Here are some excerpts (from the same link as above) from the FCC complaint [Much of the language in the FCC complaint is identical to that of the FEC so I’ve omitted those parts]:

The Federal Communications Commission has the authority to regulate fair access to the airwaves of broadcast by network television networks.

[…]

The public owns the airways over which CBS broadcasts, and the public deserves to be free from bias- favoring some candidates over others- as well as illegal support of certain presidential candidates on national network television. Unfair access to the airwaves of broadcast by network television is clearly an issue within the FCC’s mandate. The illegal corporate contribution CBS is making in including some candidates and not others is addressed in a separate formal complaint to the Federal Elections Commission. The FCC should take appropriate action against CBS.

The public owns the airwaves? Yes, I understand that this is the accepted conventional wisdom but this is not something I would have expected from perhaps** the most libertarian leaning candidate to ever seek the nomination for the Republican Party!

I fully and completely understand the frustration because as a Gary Johnson supporter, I too am frustrated with how the Johnson campaign has been treated by the establishment. I take it damn personally that the candidate who best advocates and represents my views has been excluded from these debates while big government, freedom hating, torture supporting, war mongering fools like Rick Perry and Rick Santorum make idiotic assertion after idiotic assertion on national television often unchallenged . I often wonder if Johnson might have had similar success as Ron Paul or Herman Cain had his (and by extension, my) voice been heard in these debates.

We will probably never know.

But to write the FCC and make the argument that Gov. Johnson has some sort of right to participate in the debate because the public “owns” the airwaves just makes me cringe. This comes far too close to the so-called “Fairness Doctrine” for my comfort. The public doesn’t own the airwaves, the broadcasters do. CBS buys the licenses and is supported by advertisers – not the public.

If the debate was sponsored and aired on PBS and/or NPR the Johnson campaign would have a legitimate point because those stations are supported by the public (i.e. taxpayers and viewers like you) but this is not what we are talking about here.

Maybe the Johnson campaign believes the ends justify the means but I would rather Gary Johnson lose following his small government principles than win by compromising them.

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Preference Voting — Darling Of The LP, But Does It Work?

Anyone who’s read my work here over the years will have realized that I’m not very interested in political horse races. It’s not to say that I don’t think there is some importance to them (as several contributors here do pay close attention), but that others can cover that stuff far better than I can, and at the end of the day it interests me not at all.

What does interest me is structures and incentives. I don’t think we’ll be able to make a meaningful change in the direction of this country unless we find a way to get the Republican/Democrat “Beast with Two Asses” to relinquish control and have actual diversity in Congress.

The structure of our government is such that it naturally trends towards a two-party system. The centrism of the American populace aligns those two parties into a nominal one-party system, standing a few steps for and a few steps aft of the mast of the Big Government yacht, but all riding in the exact same direction. Anyone who would dare rock the boat is purged.

So how do we fix this? Well, one option is replacing “first past the post” voting with ranked balloting. The sad truth of standard plurality elections in a dominant two-party system is that voting for a third party is a vote against your preferred of the two candidates. If you want the LP to win but could live with the Republican, voting Libertarian makes it more, not less, likely a Democrat will be elected instead. In ranked voting, you rank your acceptable candidates by preference, so ranking your LP candidate first and the Republican candidate second allows your second vote to stand should the Libertarian lose.

The question is — would it make a difference? The answer, unfortunately, is likely no:

But instead, the version being offered in Britain will allow voters to write in a first preference, and leave all others blank: the professor calls this practice “plumping.”

This is very significant, Mr Bogdanor argues, and he has the data to back this up. He notes that the stated purpose of AV is to avoid the anomaly by which a candidate can win a constituency on a minority of the vote.

However, he explains, it is not correct to say that AV ensures every MP is elected by a majority. In the Australian states of Queensland and New South Wales, “plumping” is allowed in elections to state legislatures. And where it is allowed, it is very common. He records:

The greater the degree of plumping, the more an alternative vote election turns into a first past the post election…In Queensland, in 2009, where the Labor Party advised its supporters to “Just Vote 1″, to give Labor their first preference and not to give a preference to any other candidate, around 63% of voters plumped. Even where a party does offer advice, that advice may be ignored. In Queensland, the Greens advised that second preferences be given to Labor, but 46% of Green voters decided to plump

There are many arguments for and against AV. Many will be rehearsed here over the next few weeks (you lucky people). But for now, consider this possibility: by avoiding a dreadful form of AV (one which would make the use of all preferences obligatory), British backers of AV may have chosen a system that amounts to a gussied-up form of FPTP with added complexity and aggravation.

In a system built to be dominated by two parties at the Congressional level (not at the district level), we don’t have a system requiring multiple minority parties to work together to “create a government”. That’s more of a parliamentary system with proportional representation. Nor do we, as Americans enamored with representative democracy, seem to want that — we want to elect AN individual to represent OUR OWN interests in Washington [not that this actually happens, of course].

So it’s quite likely that Republicans and Democrats will each put their own party and zero other candidates on a ranked ballot. Those of us outside the two main parties will put our third-party preference and our second choice on a ranked ballot. And at the end of the day, you’ll end up with a Congress filled with the same Republicans and Democrats we started with. In the few cases where a minority party candidate is elected (say, for example, where a popular main-party candidate is skewered in the primary and goes third-party), it may make it easier to end up in office, but still isn’t a major change to the system.

I’m a fan of changing structure, and I see the allure of preference voting. In fact, I think preference voting is a worthy change. But I think that preference voting, in and of itself, would have effectively zero impact on the American political landscape. For it to be important, it would have to be paired with other structural changes that would improve the likelihood that minority parties would end up with a seat at the table. Like most things with the $3.5T Leviathan, it’ll take more than preference voting to make a real difference.

Colorado Republican Party Could Lose More in the Governor’s Race than the Election

In an election year that seems to favor Republicans nationally, there’s a whole different story unfolding here in the Centennial State in the gubernatorial campaign. The Republican candidate Dan Maes has lost support even among the party faithful due largely to being caught in a lie about his law enforcement background in Kansas back in the ‘80s. Most of the grass roots support among conservatives has gone to former Republican congressman turned American Constitution Party candidate Tom Tancredo.

I’m by no means a fan or supporter of Tom Tancredo but I do find this turn of events to be quite amusing. Conservatives have been pleading with Meas (the Republican) to withdraw from the race as he stands to spoil Tancredo’s (the third party candidate) chances of beating the Democrat, Denver Mayor John Hickenlooper (and recent polling suggests that if Tancredo takes more votes from Maes, Tancredo stands a decent chance of actually winning).

But it gets even better. The Denver Daily News reports:

A poor showing for Maes Nov. 2 could have serious implications for the Republican Party in Colorado. If the candidate fails to garner at least 10 percent of the vote, Republicans could be relegated to minor party status for the next two election cycles, meaning they would appear lower on the ballot and could only receive half as much in donations as Democrats.

The Republican Party to become a “minor party” for the next two election cycles? How great would that be: one of the two major parties having to see what life is like for third parties and their candidates? With the polling as it stands now, it appears that no candidate will win more than 50% of the vote. If Hickenlooper wins, maybe it will be conservatives who will champion the ideas that third party candidates have been championing for some time like range voting or instant runoff voting.

The article continues:

“In a telephone interview, Colorado GOP Chair Dick Wadhams said he does not believe the Colorado Legislature would allow Republicans to become a minor party.

Whether Maes makes the 10 percent mark, Wadhams said he expects Colorado leaders to change to rule.

“That’s something I’m not too worried about right now,” he said.

Isn’t that just like our two party system? When they don’t get their way they work to change the rules?

Hopefully whatever happens, third parties will be better able to compete in future elections in Colorado as a result of this wildly entertaining campaign.

Ken Buck’s “Radical” Proposal to “Rewrite” the Constitution

I do not support Ken Buck in the Colorado senate race and I will not vote for him. Actually, between his extreme position on abortion, on banning common forms of birth control, and his sexist comments he made about his primary opponent, I think he is quite a jackass.

But even as much as I have some major concerns about Ken Buck and dislike him personally, the Democrats are running some ads that I believe are lacking in historical context and misrepresent the founding principles of our constitution and our republic.

Here’s the first ad entitled “Different”:

This “radical” idea that the state governments would choose their senators instead of the voters is hardly a new idea conjured up by Ken Buck. If we accept the notion that Buck would “rewrite” the Constitution, he would merely be changing the way senators are selected back to the way the founders intended 223 years ago. It wasn’t until the 17th Amendment was passed in 1913 that senators were chosen by popular vote in each state. In fairness, the ad does mention that for “nearly 100 years” Colorado voters picked their senators. It seems to me that the Democrats are counting on the average historical ignorance of civics 101 of the average person to be outraged at such an “un-democratic” idea.

Now to the second ad entitled “Represent”:

The second ad repeats the “rewrite the Constitution” claim but goes even further “change the whole Constitution?” Repealing the 17th Amendment is hardly changing the whole Constitution.

And what about this scandalous idea that Ken Buck wouldn’t necessarily “represent” what Coloradans wanted and would “vote the way he wanted”? Is this really what we want – senators and representatives with no will of their own?

To the lady in the ad who says “If Ken Buck doesn’t want to listen to what we have to voice our opinion then why is he even running?” my response would be that if its up to each senator to poll his or her constituents on each and every issue, why do we even need senators at all? This is why we have elections. If your congress person or senator consistently acts contrary to your principles, vote for someone else on Election Day. If you have a problem with Ken Buck’s policy positions as I do, don’t vote for him.

Despite popular belief, our system of government is not a democracy but a republic based on the rule of law. The senate was designed to be a counter balance to the fickle whims of the majority of citizens. Prior to the 17th Amendment, senators were selected by state legislatures so that the states themselves would be represented at the federal level while the people were represented directly in the House of Representatives.

There are certainly some good arguments for repealing the 17th Amendment that I don’t believe are “radical” at all. For one, if the state legislatures picked the senators, perhaps there would be more reason to pay attention to government at the state level. How many people in 100 can name their senator and representative in their state legislature let alone have any idea about their voting records?

Also, because senators are chosen by popular vote, some argue that their loyalties are not so much with the states they are supposed to represent but the senate itself. As a result, its much easier for the federal government to blackmail the states via unfunded mandates and holding funds hostage if states pass laws the federal government disagrees with (ex: forcing all states to keep the drinking age at 21 in order to receive highway funding).

Certainly, the repealing the 17th Amendment wouldn’t be a panacea and there are probably some very persuasive arguments in supporting the 17th Amendment. No system of government is perfect even in its most ideal form.

The founders were keenly aware that majorities could be as tyrannical as any monarch or dictator. A more democratic government does not necessarily mean people have more liberty; the opposite is more likely the case.

Constitution Day Open Thread: Top 3 Amendments You Would Make

Today marks the 223rd anniversary of the U.S. Constitution, allegedly the supreme law of the land. The framers of the Constitution recognized that over time changes would need to be made through an amendment process. In the intervening 223 years, this document has been amended only 27 times.

This brings me to the question I want to pose to readers: what top 3 amendments would you make if you could and why?

Here are my top 3 in no particular order:

1. Rebalancing the Scales of Justice Amendment: The 4th 6th Amendment’s guarantee for the accused to have a court appointed [see comments below] lawyer is a wonderful idea but incomplete. Sure, the accused can be represented by a public defender but does not have nearly the resources available as the prosecution. My proposed amendment would go further than the 4th 6th Amendment and state that the accused would be guaranteed the same resources in his or her defense as the prosecution. For every tax dollar spent to prosecute a dollar would be made available for the defense (whether or not the accused uses a court appointed attorney). This amendment would also guarantee compensation for the wrongfully accused, hold prosecutors criminally and civilly responsible for withholding exculpatory evidence from the jury, and clearly state that a compelling claim of “actual innocence” (due to newly discovered evidence or technological breakthroughs) would be reason enough for a new trial for the previously convicted.

2. Term Limits Amendment: A single 6 year term for president, 2 terms for senators (keep the current 6 year term), 6 terms for representatives (keep the current 2 year term). These terms would be limited for consecutive terms only; if a president wants to make another run, s/he could do so after sitting out a term while senators and representatives would have to sit out a full 12 years (and make them deal with the consequences of their laws as private citizens for awhile) or run for a different office.

3. Accident of Birth Amendment: This would revise Article II, Section 1 removing the requirement that the president must be a natural born citizen and changing the requirement to match that of a U.S. senator. While this requirement might have made sense 223 years ago when the nation was getting started, we are now to a point to where we can do away with it. I don’t like the idea of disqualifying an individual for something s/he had absolutely no control over. Also, this would force the birthers to think about something else other than Obama’s birth certificate : )

Now it’s your turn.

Supreme Court Strikes A Blow For Free Speech

By driving a stake through the heart of McCain-Feingold:

WASHINGTON — The Supreme Court ruled Thursday that corporations may spend as freely as they like to support or oppose candidates for president and Congress, easing decades-old limits on business efforts to influence federal campaigns.

By a 5-4 vote, the court overturned a 20-year-old ruling that said companies can be prohibited from using money from their general treasuries to produce and run their own campaign ads. The decision, which almost certainly will also allow labor unions to participate more freely in campaigns, threatens similar limits imposed by 24 states.

(…)

The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

As I’ve said many times before, the only campaign finance regulation that we need is full and complete disclosure.

Every candidate for Federal office should be required to disclose all contributions and disbursements and a regular basis (possibly even more frequently than the quarterly reports that are now the law), and that information should be easily available to the public so that people can know where a candidate’s money comes from and where it goes. After all, isn’t that what the First Amendment is really all about — let the information out and let the public decide what to think about it ?

Here’s the full opinion and dissent:

Citizens Opinion

Supreme Court Seems Poised To Overturn Campaign Finance Precedents

Based on the oral argument that occurred before the Supreme Court today, it seems pretty clear that the Court is prepared to strike down many restrictions on political advocacy that it had previously allowed:

WASHINGTON — There seemed little question after the argument in an important campaign finance case at the Supreme Court on Wednesday that the makers of a slashing political documentary about Hillary Rodham Clinton were poised to win. The only open question was how broad that victory would be.
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Elena Kagan, the solicitor general, all but said that a loss for the government would be acceptable, so long as it was on narrow grounds.

She suggested that the Citizens United, the conservative advocacy group that produced the documentary, “Hillary: The Movie,” may not be the sort of corporation to which campaign finance restrictions should apply. The group lost a lawsuit last year against the Federal Election Commission in which it had sought permission to distribute the film on a cable television service.

Theodore B. Olson, a lawyer for Citizens United, argued for a broad ruling that would reverse two precedents allowing the government to restrict the campaign speech of all sorts of corporations notwithstanding the First Amendment.

That prompted a question from Justice Sonia Sotomayor, her first as a Supreme Court justice. “Are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?” she asked Mr. Olson.

Indeed, it would not be hard for the court to rule in favor of Citizens United by interpreting or narrowing the 2002 McCain-Feingold campaign finance law, which bans the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election.

The law, as narrowed by a 2007 Supreme Court decision, applies to communications ”susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

The court could say, for instance, that the law was not meant to address 90-minute documentaries like the one at issue. It could say that the way Citizens United wanted to distribute the documentary, on a cable video-on-demand service, was not covered by the law. Or it could, as Ms. Kagan suggested, carve out some kinds of corporations.

Mr. Olson indicated that he was prepared to accept any sort of victory but that the court would have to confront the larger question soon enough.

Arguing on behalf of Senator Mitch McConnell of Kentucky, the Republican leader, Floyd Abrams reminded the court that it could have decided New York Times v. Sullivan, the 1964 decision that revolutionized the law of libel, on quite narrow grounds. When First Amendment rights are in danger, Mr. Abrams said, bold action is sometimes required.

Lyle Dennison agrees that at least two campaign finance precedents would seem to be in jeopardy:

If supporters of federal curbs on political campaign spending by corporations were counting on Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to hesitate to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for ruling only very narrowly, the strongest impression was that they had not convinced the two members of the Court thought to be still open to that approach. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

The Court probed deeply into Congress’ reasoning in its decades-long attempt to restrict corporate influence in campaigns for the Presidency and Congress, in a special sitting to hear a second time the case of Citizens United v. Federal Election Commission (08-205). At issue was whether the Court was ready to overturn two of its precedents — one from 1990, the other from 2003 — upholding such limitations.

From all appearances, not one of the nine Justices — including the newest Justice, Sonia Sotomayor — appeared to move away from what their positions had been expected in advance to be. In her first argument, Sotomayor fervently joined in the effort to keep any resulting decision narrow — seemingly, the minority position but one she had been assumed to hold.

Three Justices — Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — have explicitly urged the Court to overturn the two precedents that sustained congressional limits on campaign financing by corporations and labor unions. Kennedy and Thomas only seemed to reinforce that position on Wednesday; Thomas remained silent, but had given no indication earlier of a change of mind.

You can listen to the full audio of today’s oral argument here.

Supreme Court May Overturn Previous Rulings On Campaign Finance

Tomorrow, the Supreme Court will hear re-argument in a case that could lead to a big change in campaign finance law:

The Supreme Court’s unusual hearing Wednesday on the role corporations can play in influencing elections carries the potential not only for rewriting the nation’s campaign finance laws but also for testing the willingness of the court led by Chief Justice John G. Roberts Jr. to defy the decisions of Congress and to set aside its own precedents.

The court will consider whether the “proper disposition” of a case — pitting a conservative group’s scorching campaign film about Hillary Rodham Clinton against federal campaign finance laws — requires overturning two decisions that said government has an interest in restricting the political activities and speech of corporations.

(…)

Roberts’s instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach — Roberts and Alito have voted for every challenge to campaign finance laws since joining the court — may simply be a way to make more-sweeping decisions appear inevitable.

“I don’t think people should underestimate the chief justice’s ability to look down the road,” said Washington attorney David C. Frederick, who frequently argues before the court. “I think he’s got a larger constitutional vision. He’s relatively young and looking into the future.”

(…)

Roberts’s instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach — Roberts and Alito have voted for every challenge to campaign finance laws since joining the court — may simply be a way to make more-sweeping decisions appear inevitable.

“I don’t think people should underestimate the chief justice’s ability to look down the road,” said Washington attorney David C. Frederick, who frequently argues before the court. “I think he’s got a larger constitutional vision. He’s relatively young and looking into the future.”

The case, Citizens United v. Federal Election Commission, has already been heard once by the Court. However, in June, the Court took the somewhat unusual step of asking the attorneys for both sides to re-brief and re-argue to address the question of “whether the court should overturn its earlier rulings on limiting corporate and union contributions in federal elections.”

As I said at the time, this seems to indicate that there’s at least some sentiment on the Court for revisiting previous ruling and, perhaps, putting a stake into the heart of one of the most invidious pieces of legislation of the past decade.

One can only hope so, at least.

Fixing California Finances — Ignore The Voters!

California is not a well-governed state. But for a long time, I heavily blamed the voters on that one. After all, they did stupid things like voting for a $9B bond issue to start a high-speed rail line in the middle of a horrendous deficit.

But perhaps I spoke too soon. Yes, California voters are more than willing to vote for huge spending to be financed by bonds. That’s a big problem, if the spending (and thus the bonds) occur. But if Tim Cavanaugh of Reason is correct, it’s not the problem I once thought. Why not? The state isn’t spending the money:

One favorite trick for avoiding disaster at the level of state budgets is to keep authorized expenditures cooped up by never writing the checks. This practice can go on for years or decades, depending on the lobbying power of the people who stand to gain from the spending. A former California budget director once set my mind at ease when I asked about the hundreds of billions of dollars in bonded debt the ballot-initiative mobocracy has committed the state to. It turned out that only a small portion of those bonds had been issued. (And it’s pretty stunning to consider that the Golden State’s fiscal self-destruction would be even worse if anybody took an interest in honoring the will of the voters.)

So, that is good one one front. The state has shielded us from some of the stupidity inherent in democracy.

But there’s another worse aspect. The state has spent us into oblivion even without the voters’ help! I used to think it was a competition between idiotic direct democracy voters and idiotic gerrymandered politicos in an effort to bankrupt the state. It turns out I was wrong — the politicos want to hoard all the “glory” for themselves!

The Limits of Campaign Finance Law Abridgement of the First Amendment Tested in Citizens United v. Federal Elections Commission

During the 2008 presidential campaign, an organization called Citizens United produced an anti-Hillary documentary called “Hillary: the Movie.” The movie was available on pay-per-view cable channels until the FEC pulled the plug claiming that the broadcast violated campaign finance law. The case, Citizens United v. Federal Elections Commission, is now being considered by the Supreme Court.

During oral arguments, the government’s attorney revealed that campaign finance law as currently written could be interpreted to restrict not only documentaries such as “Hillary” but any other political speech “broadcast” during a campaign. A banned “broadcast” could include a store advertising the sale of candidate dolls, toys, or action figures. Even if the advertisement makes no direct endorsements nor advocates the defeat of a candidate, the mere mention of a candidate’s name or likeness would violate current election law.

But surely books would be safe…right?

Not if the book is “broadcast” on a device such as a Kindle, says the government’s attorney. While the FEC believes “dead tree editions” are currently safe from FEC regulation, former Chief of Staff and Council of the FEC Allison Hayward, says that such regulations could be imposed if congress brought such an interpretation into the law.

In the very beginning of the video below, Steve Simpson, Senior Attorney for the Institute for Justice says something which bears repeating here because he captures exactly the First Amendment problems found in current campaign finance law:

“The problem is not too much money in politics; the problem is too much power in government. Government regulates everything and of course, people want to affect the course of the government. So the campaign finance reformers ultimately what they want to prevent is that. It’s the ability to affect the course of our government; it’s the ability to affect which way people vote. That’s the dirty little secret of campaign finance law. They don’t just want to control money, they want to control speech.”

I would like to believe that free speech will ultimately prevail in Citizens United v. Federal Elections Commission, but given SCOTUS’s history, ruling on the side of the Constitution is by no means sure thing. I also can’t help but wonder how an Obama appointed Justice would rule if this case was before him or her. Which side would receive the most “empathy,” the federal government or a private organization or individual citizen? We already know that such a judge would not be considering “abstract legal theories” such as entailed in the First Amendment.

Supreme Court Seems Ready To Limit McCain-Feingold

There seemed to be some good news out of yesterday’s oral argument at the Supreme Court in an important campaign finance law case:

The Supreme Court yesterday appeared ready once again to trim the reach of the McCain-Feingold campaign finance reform act, this time at the behest of a conservative group that produced a withering 90-minute political film called “Hillary: The Movie.”

And that was even before the government’s lawyer rattled the justices by asserting that Congress possessed the power — hypothetically — to ban some political books before an election

After a rollicking one-hour argument, it seemed that the question was whether a majority of the court wanted to use an ax or a scalpel to whittle the law, Congress’s embattled attempt to limit the electoral influence of corporations, unions and special interest groups. It is known formally as the Bipartisan Campaign Reform Act of 2002.

While it’s not always easy to predict where the Court will come out based on oral argument, it seems fairly evidence that a majority was skeptical of the government’s application of the law in this case.

That’s a good sign.

Nader Scores Big Court Victory for Third Party Candidates

It’s not often that I sing the praises of unsafe-at-any-speed Ralph Nader, but his recent legal victory is worthy of such praises.

LOS ANGELES, March 9 /PRNewswire/ — In a significant move for open-election laws, the U.S. Supreme Court today rejected an attempt to overturn a federal Ninth Circuit Court of Appeals’ decision that the state of Arizona could not require independent presidential candidates to register earlier than candidates affiliated with major political parties.

Arizona’s petition for certiorari to the Supreme Court had been closely watched after 13 other states supported Arizona’s bid to have the High Court hear the case. The federal civil rights case, originally filed in Arizona federal district court, stems from Nader’s 2004 presidency bid.

Ralph Nader had challenged the deadline, contending it violated his First Amendment rights to free speech and political association. Lead Attorney Robert Barnes of the Bernhoft Law Firm represented Nader before the Ninth Circuit, which overturned the district court and unanimously declared the Arizona law unconstitutional. Nader’s Bernhoft Law legal team successfully argued that requiring independent candidates to register by June was unfair when the two major political parties did not hold their conventions until the fall.

Perhaps as just as important was the other aspect of Nader’s challenge was the lower court striking down the provision in Arizona law which required petition circulators to be registered to vote within the state. Paul Jacob and others can now circulate petitions to any state government without fear of being put in jail. What a concept!