I was recently introduced to The Invisible Hand, a newsletter being put out by the Rutgers Libertarians (that would be Rutgers University, in New Jersey). The first edition came out last November and was distributed at two campuses in New Jersey. Now the group wants to get a wider distribution, by having individuals and groups on various college campuses throughout the country print the newsletter from the internet and distribute it. I am planning to submit an article on positive rights and why libertarians don't believe in them (based on this post) for the next issue, which is due out in late March/early April.
In the meantime, the the current issue has a couple of very good articles I would like to comment on.
First, the article "The Political Philosophy of Freedom" is a very good overall introduction to libertarianism. However, I have two problems with it: first, it makes it look as though libertarianism requires a very optimistic philosophical anthropology (that is, theory of humanity). This is problematic for me, because, while Christianity is very positive about what man was meant to be and what he can become with God, it is very negative about man's present fallen state, and I believe quite firmly that Christianity and libertarianism are compatible. I thought addressing this would require a whole separate post, but the end of the article came to the point and answered my concern quite nicely with this quote from Thomas Jefferson: "Sometimes it is said that man cannot be trusted with the government of himself. Can he then be trusted with the government of others? Or, have we found angels in the form of kings, to govern him? Let history answer this question." My second, less important, objection is that the author lumps 'anarcho-capitalists' in with libertarians, which I think may be misleading. In general, libertarians believe that the minimal 'night watchman' state is absolutely critical in order to protect us from force and fraud. It is just that when the government goes beyond this mandate and violates individual rights, it becomes fundamentally unjust.
Other articles explain why the government ought not to define marriage (at all) and why the only wasted vote is a vote for a candidate you don't actually want to see in office. The latter seems fairly obvious to me, but then I'm a third party voter, and an intense non-consequentialist. I think I have a moral duty to vote for the best candidate on the ballot regardless of his chances of winning. If you don't believe this, you should read the article, which will give some more pragmatic reasons for voting for third parties (if, that is, you are unhappy with the major parties - but who isn't these days?). The whole thing is worth a read.
Update (2/9/2005, 11:23AM, Athens time): The Court did not release its decision yesterday, as I had expected it to. Hopefully it will be up tonight.
Update (2/9/2005, 8:06PM, Athens time): Still no decision. I've noticed that some of the opinions that have been published have been published months rather than days after the hearing. I find this very strange, since, as I understand it, the Supreme Court publishes its decisions usually a matter of hours after oral arguments (or perhaps the next morning). At any rate, I'll continue watching for any new developments.
The Ninth Circuit has still not released its decision in the Washington primary system case (when it is released, the decision will be available here), but a WMA of the oral arguments is now online. The 45 minute audio file is worth listening to for a summary of the arguments. There is not a lot of legal jargon, and it is not boring. On the other hand, there is really nothing new here. All five lawyers (representing defendants the Grange and the state, and plaintiffs the Republican Party, the Democratic Party, and the Libertarian Party) and the judges agree that a completely non-partisan primary would be constitutional. The political parties contend that the initiative was presented to the voters in such a way that it was clearly believed not to create a non-partisan election system. The state and the Grange insist that the plain language of the initiative redefined the term "partisan office" to mean simply "an office for which a candidate may indicate a party preference and have that preference appear on the ballot," and that the voters of Washington understand that this differs from a non-partisan election only in the inclusion of an additional piece of information on the ballot, and the elimination of this piece of information would not undermine the effect of the initiative as understood by the voters who passed it. Furthermore, the state and the Grange hold that the parties have no right to control what candidates are placed on the ballot, or what information about the candidates is included; this is up to the voters. The parties' counter-claim is that they do have a right to control what candidates are identified as members or nominees of their party. This is part of their freedom of association. The state and the grange respond that the parties are free to nominate whomever they wish, but this nomination will not affect the ballot or the election process. It is up to the parties to use their right of free speech to tell voters who is the "real" Republican on the ballot, etc. The state has no obligation to fund the parties' dissemination of this information. Furthermore, the plain language of the statute says that the letter next to the candidates name represents only his political party preference, not the party which nominated him, or the party of which he is a member, and the candidate has a First Amendment right to say that he likes the Republican Party, even if the Republican Party doesn't like him. The political parties point out that one of the statements made in the voters' guide in support of the initiative was that the ballot will look the same as the old blanket primary ballots, and this clearly means that the voters will have no way of knowing that some of the candidates were not actually nominated by, or perhaps are not even members of, the parties they indicate as their preferences. The Grange's lawyer was rebuffed by one of the judges near the end of the hearing when he pointed out that when he tells people that his football team preference is for the Seattle Seahawks, no one believes that he is a member or representative of the Seahawks. I think this is a perfectly analogous case, but at least one of the Circuit judges did not.
So that's the state of things. After listening to the defendants' arguments and the judges' comments, I thought that the judges might or might not overturn the portion of the statute permitting candidates to list their party preference, but certainly not the whole statute. After listening to the plaintiffs' arguments and the judges' responses, however, I am no longer certain. This could go any which way. If the judges rule that the portion of the statute permitting candidates to state their party preference is unconstitutional, but uphold the rest of the system, I expect that the case will not be appealed to the Supreme Court, but the parties may introduce a referendum to go back to the Montana-style primary used in the 2004 election (I don't think such a referendum would pass, and they wouldn't dare try to do it, even if they could, without a referendum, after the last time they passed it and the voters implemented the new system on initiative with 60% of the vote). If the statute is entirely overturned or entirely upheld, I expect the case will be appealed to the Supreme Court. If the decision is posted today, it will be posted by 10AM PST, which is 8PM my time. I'll still be where I have internet access by then, so hopefully I'll be able to post on it this evening.
In September, I blogged on the present state of Washington's "top two" primary system. In brief, after being sued by the Republican, Democratic, and Libertarian parties to invalidate the "blanket primary," which allowed voters to vote for any one candidate for each office in the primary, regardless of party, and then sent the top vote getter from each party to the final election, voters passed on initiative a "top two" primary which permitted candidates for so-called "partisan" offices to list their party preference, but otherwise ignored parties, sending the top two vote-getters to the final election. In this system, we do not, properly speaking, have a nominating primary. Rather, we have a general election in September (as of yesterday, I guess it's in August - see here), and a run-off in November.
As I reported in the previous post, the political parties have sued again. The parties argue that the top two primary infringes upon their freedom of association by forcing them to endorse candidates not chosen exclusively by their members, and therefore the entire system should be struck down. The state and the grange counter that (a) the parties do not endorse the candidates; the candidates merely state their preference for one party over another, and (b) the portion of the act permitting candidates to state their party preference could be struck down, if unconstitutional, without striking down the entire system.
The case was heard by the federal district court for western Washington, beginning May 19, 2005. On July 29th, Judge Thomas Zilly issued a permanent injunction against the enforcement or implementation of any portion of the top two primary initiative (I-872).
This Monday, February 6, oral arguments in the case will be heard by the Ninth Circuit. I'm not a legal expert, and I don't necessarily know about the history of Ninth Circuit rulings, but I can't see how they can (or, for that matter, how the district court could) strike down the entire statute on the basis of a minor provision relating to a statement of party preference. Furthermore, I must again (and again) state my utter disgust at the Libertarian Party of Washington State's decision to participate in this lawsuit. The Libertarian Party doesn't participate in state run primaries, even in states where it has major party status (as it did in Washington until recently) because it opposes the idea of states running primaries. Here, the Party has decided to oppose a measure which it should, according to principle, support, because before the measure was passed, it had a gauranteed place on the November ballot, and with the measure it won't! Well, now it doesn't anyway, because it has lost its major party status, but it continues to pursue this extremely unprincipled lawsuit. If the Libertarian Party wishes to pass itself off as "the party of principle," it MUST hurry up and back off of this lawsuit. I discussed in my previous post the ways in which the Libertarian Party can exercise "quality control" over candidates running under its name in this kind of "free market" context.
I will try to post news as soon as I'm able to find it regarding the outcome of the arguments on Monday. In the meantime, all the official documents are here.
So I got a ballot today for a county special election, and was looking on the web for more information about the proposition when I made a shocking discovery: On July 15, 2005, Washington initiative 872 was declared unconstitutional in federal court! What does this mean? Let me tell you...
The story so far: From its founding until the 2004 election, Washington used an "open" primary system. The law, written by the Grange (which is and always has been a very influential organization in the state, fighting for the interests of voters against the interests of political parties - we hate political parties in Washington), provided for a primary in which voters may vote for candidates in any party, one candidate per office, including mixing and matching parties based on the office and candidate in question. In 2003, the state's political parties sued and the system was ruled unconstitutional on the grounds that it forces political parties to run candidates not selected exclusively by their own members (since, for instance, Democrats could vote in the Republican primary for certain offices) and thus violated their freedom of association rights from the First Amendment (made applicable on the state level by the Fourteenth Amendment). The court ruling came down just before the 2004 election, and the legislature hastily implemented a "Montana-style" primary, in which no record of party affiliation was kept on file, but a separate primary ballot was used for each major party (Republican, Democrat, or Libertarian in Washington) and the voter chose which primary to vote in at election time. We the people were not so happy about being forced into this electoral system not of our choosing, so the Grange wrote another initiative, I-872, got it on the 2004 general election ballot by petition, and passed it with 60% of the vote.
Under I-872, voters may choose any candidate in the primary (interestingly, the new language says that primaries no longer "nominate" candidates, but "winnow" them from a larger pool - you know your laws are written by the Grange when "winnow" becomes a legal term!), and the top two vote-getters, regardless of party, go to the final election.
Last May, the parties again filed suit against the state, alleging that the new electoral system was also unconstitutional. In July, a federal court sides with the parties. The state appealed to the Ninth Circuit, and the case is expected to be decided in November or December. At issue, it seems, is the fact that the new system still allows candidates to list their party affiliation, so that the parties are still being forced to run particular candidates, they claim.
I am not sure how I expect the Ninth Circuit to rule. On the one hand, the language of the intiative says that is not a process for nominating any particular party's candidates for office (see esp. DEFINITIONS sec. 5 as amended). The argument of the state (the Grange is also involved in the litigation) is that the candidates are already running for office under the banner of some particular party before the primary takes place. Indeed, this seems to me to be the case.
Once again, I can't believe the Libertarian party has joined in this lawsuit (they were in on the last one too). This is a completely unprincipled move; the Libertarian party is not supposed to believe in government suppport for or regulation of political parties.
There is, of course, still a legitimate problem: the system as it stands seems to have as a consequence that a candidate not supporting the platform of a particular party could run for office under that party's name. However (another reason I'm appalled at the Libertarian party's role in the litigation), there is an obvious (small l) libertarian solution to the problem: trademark law. All that a party needs to do is register a trademark on its name, and then enforce the trademark on anyone who attempts to run under the party's name and is not a duly nominated candidate. For instance, the Libertarian Party holds nominating conventions, so they will trademark the phrase "Libertarian Party", nominate a candidate, then use trademark law to prohibit any other candidate from claiming to be endorsed by the Libertarian Party. I imagine that this is already done by, for instance, the NRA when they endorse candidates. The Party could go further by having as a membership condition a contractual obligation not to run for office unless duly nominated by the Party, then no one running could claim to be a member of the Libertarian Party. (Could he still claim to be a Libertarian? Would a trademark on the word Libertarian carry? I don't know what trademark law looks like, but if it was my decision they would be allowed to trademark Libertarian used as a proper name of an organization, but not used as an uncapitalized common noun.) The Democratic and Republican parties might want to hold their own primaries, or allow multiple candidates to run, but only after somehow being approved. The problem (in the eyes of the parties) is that if the approval process was not to the liking of the voters, it would be easy for a candidate to get on the primary ballot and the "major parties" would not have any special priveleges in the election process. Sounds good to me.
When I-872 was up on the ballot last year, I had a discussion with then-candidate for Secretary of State Jacqueline Passey in a pair of posts to this blog. I thought, and still think, that libertarian principles far prefer I-872 over any type of partisan primaries. Like labor unions, political parties do wonderful things as long as they are truly voluntary associations of individuals who wish to work together to effect some end. However, the moment they are recognized by the government and regulations are put into effect giving them special treatment and deciding which ones count as "legitimate," they suddenly become irredeemably evil. I support labor unions and I support political parties, in principle, but I am vehemently opposed to government recognition of either, and I must oppose the parties and unions themselves once they become recognized by the government.
For complete information on the status of I-872, see here.