Category Archives: Election Law

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.

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