Saturday, September 22, 2012

Gary Johnson Crosses the Line

By Skip Oliva

The Libertarian Party has never done the larger libertarian movement much good. The party’s 2008 presidential ticket jumped ship and endorsed Mitt Romney. And the 2012 ticket of Gary Johnson and Jim Gray has now stooped to filing a federal antitrust lawsuit–not the most libertarian of tactics–in order to force their way into the upcoming presidential debates. It’s a pathetic move that insults the thousands of people deprived of their property and liberty by the scourge that is the Sherman Act.

Johnson’s lawsuit is pure nonsense. He claims the Commission on Presidential Debates and the Democratic and Republican National Committees have “conspired” to “restrain trade” by excluding Johnson. “The office of president, to which Governor Johnson aspires,” the lawsuit argues, “pays a salary of $400,000 per year.” This makes the presidential debates “commerce” under Section 1 of the Sherman Act. Really, Gary? I think I can hear some lawyers at the Federal Trade Commission laughing at you.

“The Sherman Act was enacted in 1890 to prevent conspiracies such as the one alleged herein.” No, it wasn’t. The Sherman Act was adopted to punish more efficient competitors in industry and agriculture who displaced politically connected but less efficient firms. There isn’t a single shred of evidence to suggest the law’s framers intended to apply it to political activities like a presidential debate. (Indeed, presidential debates were unheard of in the 19th century.)

Johnson’s lawsuit claims the defendants “continue to secretly meet” to conspire against him by passing exclusionary debate rules. This ignores the fact the Commission and the two major parties are private, non-governmental entities. Private groups are not only free to meet and exclude outsiders, they have an absolute right to do so under the First Amendment. Johnson is effectively trying to employ antitrust to overrule the right of free association.

Even by antitrust standards, Johnson’s case is meritless. Antitrust requires some sort of “relevant market.” Johnson claims the debate participants “monopolize the field in the race for president and vice president,” which harms not just him but “the American electorate generally.” First of all, antitrust deals with consumers, not voters. The two are not interchangeable. Second, exclusion from the debates does not “monopolize” the race itself. Johnson will still appear on the ballot in most states and he has every opportunity to get his message across to the voters. If there’s anything monopolistic here it’s the restrictive access laws that hinder or prevent Johnson from appearing on the ballot–none of which are a subject of this lawsuit.

There is no “right” to appear in a presidential debate. Nor is there a right to force your opponents to make a joint public appearance with you, which is exactly what Johnson seeks here. What if Johnson prevails in the lawsuit and Mitt Romney decides he won’t appear in any debate unless it’s one-on-one with Obama? Will Johnson sue Romney to compel his attendance?

I’ve already had some Johnson defenders claim the antitrust lawsuit is justified “to combat the dirty tricks perpetrated by both major parties.” This is an “ends justify the means” argument. It goes against the LP’s own mantra as “The Party of Principle.”

Read the rest here.


  1. That's a really stupid position to take. Ron Paul takes ss, Rand did too. Both have said repeatedly that it isn't immoral to use the system against itself be wise to do otherwise would be to artificially disadvantage yourself.

    This is 100% consistent with both of them. They are using a stupid law against a group of evil people for the purpose of overthrowing the regeim which is absolutely the right solution. Of course the press release has to use crony speak or they would undermine their case.

    Critising Gj is fine but please refrain from being a hypocrite!

    1. I agree. Turning a system of force against itself is different than turning that same system toward private individuals. If the "overseers" can use the Commerce Clause to regulate products instead of just the meta-procedures relating to the conduct of commerce related to the product, then GJ should be able to use those same regulations against the overseers.

      The presidential candidates are vying for the ability to use force against us. Nonviolent efforts to use their own system against them are fair game, IMHO.

  2. I am a Gary Johnson supporter, but he definitely needs to pull this lawsuit. The chance of it succeeding legally is nil, and frankly, whether they participate in the debates or not, the odds of the Johnson/Gray ticket winning the election is not much better. No one supporting Johnson/Gray is under any illusions about this situation whatsoever, so why go forward with a half-baked lawsuit that at best can only further the reach of the state?

    Shout out to the Johnson campaign: The courts and bogus anti-trust claims are not the answer. Pull the lawsuit and instead use the media, including the increasingly powerful alternative media, to make your case for inclusion in the debates. You will make far more fans with this approach.

  3. I agree and disagree here. I agree that Johnson should file a suit but under the commerce clause? C'mon Gary don't be another idiot....and your reasons are even more ridiculous.

  4. I posted a comment on Skip's blog regarding this article, so I figured I would post the comment here as well:

    I completely agree with your statement that Gary Johnson “would be better served buying airtime on the networks and foregoing the legal trickery”, however, describing the Commission on Presidential Debates and the Republican and Democrat political parties as “private” organizations, seems as a bit of a stretch to me.

    These organizations are interconnected with the government, receive “public” funds, have minimal competition, in part, due to government regulations and intervention, and are sustained, in part, with contributions gained through government intervention.

    See Murray Rothbard’s critique of describing these types of organizations and businesses as “private”, in his article, Confiscation and the Homesteading Principle published in The Libertarian Forum, as a basis for my claims.

  5. Skip is wrong.

    First, the two parties of state are not private parties with natural rights of association and any asseveration to the contrary is pure poop unsupported by reality. Politicial parties whose members conspire daily to confiscate the property of individuals are not "private parties" by any rational conception of the term. If an entity is at its very core a rent seeking aggressor and purveyor of violence, it is not a private party.

    Second, the text of the Sherman Act does not contain an exception for the two parties of state. If Congress had meant to exclude the Democrat and Republican parties, it should have so said. It did not; moreover, has Skip examined the Congressional debates regarding the legislation? Was there concern registered that the statute could be directed at the two parties of state?

    Third, criticism of those who would force leviathan to play by the rules is, in my view, kind of creepy and funky.

    1. The anonymous response from 3:40pm said it best. Johnson is more of a libertarian than Ron Paul. It's unfortunate that Wenzel and his minions are always trying to smear him, but it's not a surprise since he doesn't fit into their brand of libertarianism, which is a conservative brand. If Ron Paul was trying to sue, and Skip wrote this article, Wenzel would write up a long argument against it. I cannot believe the hypocrisy that Wenzel is always demonstrating.

    2. "Johnson is more of a libertarian than Ron Paul." I disagree. A libertarian is one who believes in the non-aggression principle, which states that a person may not initiate or threaten force against one another. The policies that a libertarian espouse should be measured against the non-aggression principle. Ron Paul's conduct in Congress has been consistent with the non-aggression principle. He has consistently fought to loosen the chokehold that the federal government has on our lives, and he has never supported any actions that tighten this chokehold.

      While I have respect for Gary Johnson and while he is right on most issues (I am probably going to vote for him in November, although I'm torn between voting for him and writing in Ron Paul), Gary Johnson's libertarianism is not rooted in the deontological non-aggression principle, but instead rooted in consequentialist "cost-benefit analysis." The problem with a "cost-benefit analysis" is that sometimes the analysis falls on the side of tightening the state's chokehold. Consider Gary Johnson's support for the FairTax and for humanitarian war, for example.

      Does this make Gary Johnson opposed to liberty? I wouldn't go that far. While his views are not entirely aligned with the non-aggression principle, and while I don't believe he hates the state (unlike Murray Rothbard or Lew Rockwell, for example), I argue that Gary Johnson is in line with classical liberal or Old Right politicians such as John Calhoun, Grover Cleveland, Calvin Coolidge, and Robert Taft. None of them were perfect in applying the non-aggression principle to their actions, but their actions were mostly in the direction of liberty. Gary Johnson is in the direction of liberty, even if his views are not perfectly aligned with the non-aggression principle. However, Ron Paul's actions are consistent with the non-aggression principle, and thus it is incorrect to say that Gary Johnson is more libertarian than Ron Paul is.

  6. What happened to "be a libertarian bitch?"

  7. Wow. Voters aren't consumers. You say they consume nothing? Then you confirmed that Diebold indeed does our voting. Oops. But even Diebold consumes electricty.

  8. Skip,

    You're a fucking idiot.

  9. Just speculation . . Jim Gray has declared many times that a condition of his agreement to be on the ticket is that GJ "run to win." He has also emphasized the importance of being included in the mainstream presidential debates. With the ticket nowhere near 15% in polls, perhaps the lawsuit is an attempt driven mainly by the Judge to get some publicity on the exclusion issue, if not actually changing the qualifications for being included in the debate.

    It's not likely to succeed. But I can understand why Judge Gray is willing to personally argue it, and wish him and the campaign well.

    1. If it only succeeded in changing the inclusion criteria, it would be a great victory.

  10. I'm curious do the debates of 1860 count as being in the 19th century? Because I seem to remember the Lincoln-douglas debates being something of like...oh I don't know how we base current debate style formats. So yeah saying (Indeed, presidential debates were unheard of in the 19th century.) is really moronic and just plane wrong.