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The Libertarian Party, and fellow plaintiffs, won a victory in federal court this week in the case of Level the Playing Field v. FEC. (The full background of the case can be read from reporting here when it was first assigned its day in court and when the oral arguments occurred.)

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To quote from my previous reporting summing up what was at issue in the lawsuit, which while technically against the Federal Election Commission (FEC) is ultimately targeting the Commission on Presidential Debates (CPD) for locking out third parties while pretending to be nonpartisan, the L.P. and its co-plaintiffs claim that:

the CPD has always been a deliberate duopoly for the two major parties and has "been violating FECA and FEC regulations limiting debate-sponsoring organizations' ability to use corporate funds to finance their activities" since its efforts are not truly "nonpartisan."

The suit accuses the FEC of "refus[ing] to enforce the law and ignored virtually all of this evidence in conclusorily dismissing the complaints even though there is plainly reason to believe that the CPD is violating FECA...."...

"The Court should...direct the FEC to do its job, which is to enforce the law and put an end to the CPD's biased, anti-democratic, and fundamentally corrupt and exclusionary polling rule."

Judge Tayna Chutkan in U.S. District Court for D.C. agreed with the L.P. and others that the FEC was derelict in its duties when it blithely refused to act on the those complaints about the CPD.

Plaintiffs allege that the Federal Election Commission ("FEC") has violated the Administrative Procedure Act ("APA").... in dismissing two administrative complaints regarding the CPD and in denying a petition to engage in rulemaking to change the FEC's regulations regarding debate staging organizations.

Judge Chutkan explains how CPD's operations should be affected by the FEC and its enforcement of election finance law:

The debate staging regulation...acts as an exemption to the general ban on corporate contributions to or expenditures on behalf of political campaigns or candidates. To prevent debate staging organizations such as the CPD from operating as conduits for corporate contributions made to benefit only one or two candidates from the Democratic and Republican partiesvia the much-watched prime-time debatesthe regulations require these organizations to (1) be nonpartisan, (2) not endorse, support, or oppose candidates or campaigns, and (3) use pre-established, objective criteria.

If a debate staging organization fails to comply with the regulations, such as failing to use objective criteria in determining which candidates participate in its debates, then the value of the debate is actually a contribution or expenditure made to the participating political campaigns in violation of the Act.

The Act provides that any person who believes a violation of the Act has occurred may file an administrative complaint with the FEC...

The L.P. and its co-plaintiffs filed such a complaint in September 2014, as well as "a Petition for Rulemaking with the FEC [that] asked the FEC...to specifically bar debate staging organizations from using a polling threshold as the sole criterion for accessing general election presidential and vice-presidential debates."

They were not satisfied with the FEC's reaction, leading to the current lawsuit "challenging the dismissal of their administrative complaint...and the agency's decision not to engage in rulemaking" about the debate threshold.

Judge Chutkan agrees that the FEC did a shoddy and careless job in actually considering and reacting to the arguments and evidence the L.P. and others presented about the potential partisanship of CPD, and thus:

the court cannot defer to the FEC's analysis and further concludes that the FEC acted arbitrarily and capriciously and contrary to law when it determined that the CPD did not endorse, support, or oppose political parties in the 2012 election....On remand, the FEC is ORDERED to articulate its analysis in determining whether the CPD endorsed, supported, or opposed political parties or candidates....

....the FEC must demonstrate how it considered the evidence, particularly, but not necessarily limited to, the newly-submitted evidence of partisanship and political donations and the expert analyses regarding fundraising and polling.

As for the argument that the CPD's 15 percent polling requirement for third party access is not properly objective and is in fact clearly designed to privilege major parties, Judge Chutkan:

GRANTS Plaintiffs' motion....as to whether the FEC's analysis of the criterion's objectivity was arbitrary and capricious and contrary to law. While the court cannot and does not mandate that the FEC reach a different conclusion on remand, the court notes that the weight of Plaintiffs' evidence is substantial, and the FEC must demonstrate that it actually considered the full scope of this evidence, including the CPD chairmen's and directors' partisan political activity and the expert reports, as well as explain how and why it rejected this evidence in deciding that the CPD's polling requirement is an objective criterion

Judge Chutkan spells out that the L.P. and its co-plaintiffs:

clearly argued, and attempts to establish with significant evidence, that in presidential elections CPD's polling threshold is being used subjectively to exclude independent and third-party candidates, which has the effect of allowing corporations to channel money to the CPD's expenditures to the C campaigns they would be prohibited from giving the campaigns directly.

It further argued and presented evidence that polling thresholds are particularly unreliable and susceptible to this type of subjective use at the presidential level, undermining the FEC's stated goal of using "objective criteria to avoid the real or apparent potential for a quid pro quo, and to ensure the integrity and fairness of the process." In its Notice, the FEC brushed these arguments aside....

Judge Chutkan is thus demanding the FEC do a better job actually grappling with those arguments. This does not mean that the CPD is on the ropes or will somehow instantly be required to either give up its firewall against third parties or stop taking in the corporate bucks.

But it does mean the FEC is going to have to come up with convincing reasons why the CPD isn't bipartisan rather than nonpartisan and why the CPD's debate inclusion criteria are fair and objective and not partisan. It will be interesting to see what they come up with.

Via the always indispensable Ballot Access News.

Read more here:
Libertarian Party Gets Victory in Suit Aimed at the Partisanship of Commission on Presidential Debates - Reason (blog)

AUGUSTA, Maine The creation story of the Libertarian Party in Maine, which has had more twists and turns than a mystery novel, is now moving into the hands of the Legislature, which will consider a bill this year that would grant permanent party status.

Lets catch up on the background. Through a nonprofit, Libertarians launched a drive in early 2015 to collect 5,000 registrants, the first step in becoming a party. They submitted 6,482 names but Secretary of State Matthew Dunlap rejected nearly 2,000 of them in December 2015 because they could not be verified as registered Maine voters, so all were unenrolled from the party by the state and became independents.

The decision was upheld in U.S. District Court in April 2015 but the Libertarians appealed and the ruling was reversed by the same court a month later, a major victory for the Libertarians. But their fight was far from over.

To achieve permanent party status, they needed at least 10,000 registered Libertarians to vote in November 2016, but they fell far short, with Dunlap spokeswoman Kristen Muszynski saying Wednesday that there are 5,616 enrolled Libertarians.

Now, the party and its attorney have brokered a deal that could lead to permanent party status. Libertarian Chairman Chris Lyons said the deal, which involves the presentation of LD 295 to the Legislature, could keep the issue from going back to court for more arguments about how Maines system for creating a new party is so hard its unconstitutional. That was the crux of the partys legal arguments the first time around.

The bill was referred to the Veterans and Legal Affairs Committee on Tuesday and hasnt been scheduled for a public hearing. There is also a second bill, which has not yet been drafted, coming from the Dunlaps office to make broader changes to the qualification process.

Were going to continue to be an official party, Lyons said on Wednesday. If either of those bills get hacked up or not accepted, basically were going right back to court.

Theres some irony here. LD 295 basically lets the Libertarians fall back on a previous law that grants party status because their 2016 presidential candidate in this case Gary Johnson received more than 5 percent of the vote in Maine. Because the Libertarians were in the qualifying process, they faced the more rigorous 10,000-vote threshold.

Why does it matter?

Having a fourth political party in Maine could mean a great deal if it gains any traction. Even one or two Libertarians in a closely divided Legislature could change the political dynamic in Maine, which raises the question: Will Republicans and Democrats vote for this?

The rest is here:
Maine Libertarians' bid for party status hits a snag - Bangor Daily News

Therewas a lot of hype and uncertainty surrounding what kind of Supreme Court nomineePresident Trump had in mind towards the end of his 2016 presidential campaign, and what his eventual choice would be. He promised someone who would be the next Antonin Scalia: An originalist, who believed in maintaining the interpretation the Founders intended when writing the Constitution.

With Neil Gorsuchs nomination to the Supreme Court on Tuesday, were getting exactly what President Trump promised and thats a good thing. Gorsuch is an originalist, and is a walking carbon copy of what wegot with Scalia.

Gorsuch isnt a libertarian, but he was undoubtedly the best choice out of Trumps list of 21 individuals that were in consideration for the position aside from maybe Mike Lee, but Leeis more valuable as a senator. With Gorsuch were getting a Supreme Court justice who will protect our constitution from being stretched even more by the left, and help to be a proponent of small government values.

Hes a strong defender of religious freedom, and a staunch supporterof states rights. While many libertarians like myself want government to be even more decentralized than the state level, having yet another proponent of decentralization is a huge win for libertarians.

Gorsuchsnomination is also awin for pro-life libertarians. While Gorsuch hasnt ruled or given an official opinion on abortion or Roe v. Wade, as a principled conservative and originalist, we can expect him to be a fierce proponent of a pro-life ethic. To Gorsuch, human life is fundamentally and inherently valuable.

Gorsuch is also against the Chevron doctrine, a precedent set in the 1980s whichallows judges to defer to federal agencies when laws from Congress are ambiguous, saying that the precedent certainly seems to have added prodigious new powers to an already titanic administrative state. This is where Gorsuch differs from Scalia, who believed in the doctrine. This may indicate that Gorsuch is even more consistent on small governmentvalues than Scalia was.

When it comes to how Gorsuch will act in the courts, we can tell that like Scalia, he is very much against judicial activism and legislating from the bench. In a 2005 article he penned for theNational Review, he noted that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda. Libertarians should be thrilled about this. While the Obergefell v. Hodges decision did undeniably advance liberty, it waded into murky waters and set a dangerous precedent that the Supreme Court should legislate from the bench. The fact that Gorsuch believes the Court should not do so is a great sign. The Court is meant to interpret laws, not create them.

Where libertarians will start to have a few problems with Gorsuch, however, is where hispro-life stance bleeds into that of assisted suicide. He authored a book titled The Future of Assisted Suicide and Euthanasiain which he argues that both should be illegal practices which goes directly against the general libertarian idea that you should be able to end your life at your own free will if you so desire.

On issues like the legalization of marijuana and gun rights, theres a lot of room to speculate since he hasnt given official stances on any of those issues. The most likely case when it comes to gun rights is that he will be a strong supporter of the right to bear arms. When it comes to marijuana however, one can only wonder whether he takes a more conservative stance and opposes legal marijuana, or if he channels his belief in states rights and thinks we should leave it up to the states.

While he may not have written many opinions on many of the hot-button issues, Gorsuch has a consistent track record of erring on the side of originalism and a strict interpretation of the Constitution.

Even if you dont believe that Gorsuch is the right pick, or a good pick, hes miles better than the other frontrunner at the time Thomas Hardiman. Multiple studies including one by a Washington University of St. Louis professor, and anotherled by an assistant professor at Walter F. George School of Lawhave showed that when observing many factors, most notably the possible nominees records as judges, that Hardiman was very likely to be a moderate judge, which may have spelled trouble for small government values.

While he may not be the libertarian we want, and he may not be Judge Napolitano (though Napolitano gave him a strong stamp of approval, and actually helped Trump decide during the process), he was the best on the list. Overall, libertarians have a lot to look forward to.

Photo Credit: Getty Images

This post was written by Nicholas Amato.

The views expressed here belong to the author and do not necessarily reflect our views and opinions.

Nicholas Amato is the News Editor at Being Libertarian. Hes an undergraduate student at San Jose State University, majoring in political science and minoring in journalism.

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Justice Gorsuch: The Right SCOTUS Pick - Being Libertarian

Despite disquiet on the libertarian right, some #NeverTrump diehards are galloping to the presidents side. Illustration: Rob Dobi

Few will have missed David Frums dystopian cover story for the Atlantic, but many of the people passing it around on social media may not remember that Frum coined the term axis of evil as a George W Bush speechwriter. Backing away from his support for the Iraq war for over a decade, Frum has finally completed the transition from loyal rightwing foot soldier to Trump critic.

Hes not alone. One subplot that has gone unnoticed in this week of outrages is how much discomfort Trumps executive orders on immigration are causing in segments of the right.

In particular, some libertarians are looking queasily at Trumps discriminatory executive orders, his reckless sabre-rattling, and his big-spending plans and venting their concerns publicly. But even diehard religious conservatives and culture warriors are wondering who is in charge in Trumps inner circle, and whether they really know what they are doing.

This may not last already some of the most bitter critics of Trump during the campaign have decided to throw their lot in with him, because ultimately, they hate the left even more.

Publication: The New York Times

Author: Ross Douthat is the conservative voice on the New York Timess op-ed page. Hes also a convert to Catholicism whose conservative zeal possibly outstrips the popes, a master of the upper-middlebrow reactionary style originated by William F Buckley, and the owner of a Twitter account specializing in bad predictions and more-in-sorrow-than-in-anger sermonizing. On the few occasions where all of this isnt simply unbearable, Douthat can surprise his readers by being right.

Why you should read it: Against the apocalyptic grain of so much that has been written since Trump took the wheel, Douthat points to signs of incompetence, unpopularity and instability, and wonders how long hell last.

Extract: But nothing about Trumpian populism to date suggests that it has either the political skill or the popularity required to grind its opposition down. In which case, instead of Putin, the more relevant case study might be former President Mohamed Morsi of Egypt, the Muslim Brotherhood leader whose brief tenure was defined both by chronic self-sabotage and by the active resistance of the Egyptian bureaucracy and intelligentsia, which rendered governance effectively impossible.

Publication: Bleeding Heart Libertarians

Author: Steve Horwitz is an academic economist at St Lawrence University in New York. Along with the Austrian School, Horwitz has long identified as a bleeding heart libertarian, attuned to social justice issues as well as the need to shrink government. This position might be hard for progressives to wrap their heads around, but Horwitz does his best to explain it to a wider public as a contributor to the bleeding heart libertarians blog.

Why you should read it: Horwitz is frustrated, and more than a little alarmed, that his fellow libertarians are not taking Trump seriously as a unique threat to their vision of freedom. He takes the opportunity to offer them a few home truths, and to urge them to at least consider cooperation with the left against a common enemy.

Extract: Too many libertarians hate the left more than they love liberty. One response Ive heard to my pushing back on their take on Trump is that well Obama/Clinton was/would have been worse! No, actually he wasnt and I dont think she would have been. Yes, they might have expanded the regulatory state, but there would be no revival of torture, no wall, no registry, no trade war, no attempt to muzzle the media, etc. Trump is a tin-pot dictator wannabe (and starting to be), without an ounce of knowledge or respect for constitutional limits on government, who threatens the foundational institutions of the liberal order. Obama was not. Clinton is not. I confess to some schadenfreude myself as the left squirms in the aftermath of a defeat they didnt see coming. But every time Trump opens his mouth, the fundamental threat to liberty he and his supporters embody overwhelms that. Now, more than ever, libertarians need good-hearted, open-minded people on the left as allies in an attempt to preserve the things we agree on. We should never let our frustrations with the left become more important than preserving the liberal order.

Publication: Reason

Author: Nick Gillespie is a big wheel in the Libertarian movement. Hes the editor-in-chief at Reason, and is a Daily Beast columnist. Naturally he is on good terms with Reasons backers, the Kochs.

Why you should read it: Gillespie adds to the sense that Trumps recent actions are making libertarians uneasy. Surveying examples of Republicans who have voiced skepticism about Trumps measures, Gillespie makes sure to hammer home the message that Trumps executive orders dont appear to have any connection with the actual sources of terrorism. (Its a similar point that the liberal wonks at Vox appeared to be driving at earlier this week, and in a since-deleted tweet saying he picked the wrong countries). In any case, those looking for slow cracks on the right might start here.

Extract: Criticism is almost always more important when it comes from within a persons political party or ideology. Its a sharp sign that the person being criticized has wandered into some deep and dangerous territory. Thats certainly the case with Trump and his orders on sanctuary cities and on immigration and refugee policy. The laws were not just poorly phrased and timed, they clearly will not work to address the basic issues they ostensibly are meant to ameliorate. As Anthony Fisher noted here earlier today, the US embassy in Iraq has said that Trumps action is a recruitment tool for jihadists, as pro-American Middle Easterners realize theyre being hung out to dry. As for keeping America safe from terrorists entering the country as refugees, the fact is the country has an incredibly safe record.

Publication: Commentary

Author: A couple of months ago we offered some faint praise in our bio of Mr Rothman, and he was kind enough to give us a shout-out on Twitter. Hi again, Noah! Hes still the assistant online editor at Commentary, and hes still not sold on Trump.

Why you should read it: Some viral conspiracy theories suggested that the shambolic implementation of Trumps poorly conceived executive orders on immigration were part of some 11-dimensional chess game. Rothman shows more gorm: sometimes chaos is just chaos.

Extract: The businessman-president is supposed to be, above all else, competent. There was none of that evident in the terrible implementation of the presidents executive order banning entry into the U.S. of not just refugees but visa holders and legal permanent residents from seven Islamic world nations. The merits of this policy are dubious even to those Americans who believe in an abundance of caution when it comes to preventing potential terrorists from infiltrating the United States. Merits aside, the implementation of this policy was stunningly inept.

Publication: National Review

Author: David French bemoaned Trumps nomination, threatened to run as an independent candidate against him, and subsequently complained about his supporters harassing him. Apparently time heals all wounds.

Why you should read it: Read this as a reminder: even when we occasionally agree, most progressives values fundamentally depart from those of conservatives, and they can get over their antipathy for someone on their own side far more quickly than they can get over their suspicion of the left, and their obsessions. French shows us how flexible the meaning of the #NeverTrump movement actually is he celebrates Trumps consummation of one of his key campaign messages, and indulges in some seedy xenophobia, as his publication desperately tries to stay relevant.

Extract: Trumps order was not signed in a vacuum. Look at the Heritage Foundations interactive timeline of Islamist terror plots since 9/11. Note the dramatic increase in planned and executed attacks since 2015. Now is not the time for complacency. Now is the time to take a fresh look at our border-control and immigration policies. Trumps order isnt a betrayal of American values. Applied correctly and competently, it can represent a promising fresh start and a prelude to new policies that protect our nation while still maintaining American compassion and preserving American friendships.

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Burst your bubble: five conservative articles to read as Trump riles libertarians - The Guardian

Most people have agency. They live in their bubbles, their local municipalities, their facebook shitposting groups, their families. With the emotions and information they absorb in each, from their diapers to their diplomas and onward, they choose pathsthey make decisions. With the number of people rounding 7 billion and the number of possible bubbles rounding even more, its roundly impossible to intellectualize all of it. In fact, it is impossible to intellectualize most of the major parts and sub-parts of it. Even if we squint to try and better understand the behaviors of just our own bubbles, the equations dont exactly pop out.

To humans for whom curiosity and a sense of control are central, this all poses a very big problem. There are now, as its been for a while, too many branches of paths and possibilities to have anything that can meaningfully be called control. Theres too much entropy in society, too much oil on the grip of intellectual comfort.

You dont know if therell soon be a terror attack on your nation-bubbles soil, but its within some realm of possibility that merits concern. You dont know if a self-driving car might wonk out and kill someone, you dont have the resources to analyze the statistics or the software yourself, but you know that faulty systems with the capacity to kill warrant concern. You dont know if youll become ill, if your insurance company will be ethical, if youll have a doctor available, if your doctor will be capable but all of this is cause for concern. The behavior of the millions of people in the organizations whose decisions decide your capacity to commute, known as the fossil fuel industry, are both so sporadic and so impactful that youve probably felt their weight.

Theres too much information, and if you dont have a team of data scientists and access to the databanks of the NSA, JPMorgan, and Merck Pharmaceuticals like Palantir, there really is no control, and within few constraints, anything can happen. And people have a tendency to reduce anything can happen to the worst can happen and act accordingly.

How can this mass upset at entropy be resolved? How can they increase the constraints, at least in their own bubbles? With authority. Authority, whether physical, social, coercive, or economic, imposes agency onto entropy. Agency is sympathetic, agency is familiar. Even if its someone elses, so long as its not obviously opposed to yours, agency is the familiar friend who tames the wild beast of entropy with the sword and shield of authority.

But as you might see, entropy is largely liberty. Its peoples ability to take their unique circumstances, their knowledge and their instincts, and go with it where they please. Its their ability to communicate it to others through whisper or megaphone. Their ability to go on and bond with those others, as friends, colleagues, partners in adventure, or Grindr-bros. Their capacity to mobilize their assets, their land, their cars, their books and notebooks, their microscopes and fishing lures, as their circumstances call for it. And to trade those assets and relationships as they see fit.

These degrees of freedom lead any number of people to generate an enormous number of bubbles and spawn an even greater number of paths for the world to take. Some of those paths are hazard, most uncertain, and few utopian. And because entropy, the collective manifest of liberty, is without agency, its propaganda falls flat of any notions of collective workers paradise or great aryan nationhood.

Thankfully, there are many who find themselves just asif not morewary of authority, of the imposition of others agency, as they are of entropy. And even moreso, there are many, like myself, who see appreciate the necessity of entropy as clearly as the familiarity of agency.

Some, sadly, simply wear the cloak of liberty but retain a hatred of entropy, and develop some pathologies and ideologies. They identify themselves as lovers of liberty and warriors against authority, and end up attacking entropy: they convolute, and to themselves and the world claim liberty is actually a carefully orchestrated plan by a malicious shadow authority, and call for an authority which is more familiar than the supposed shadow authority to take its place. In reality, theyre fighting entropy and calling for authority with the caveat of decoration.

Liberty, to me and many others, is the way to maintain liberty. No amount of conceptual hoop-jumping and redefinition can obfuscate that. That entropy is a necessary consequence of liberty is an important understand that, although uncertain, if accepted, solidifies the notion that for us liberty is more important than fear of probability.

* Ronald Cohen is an organizational sociology student and researcher.

The main BeingLibertarian.com account, used for editorials and guest author submissions. The views expressed here belong to the author and do not necessarily reflect our views and opinions. Contact the Editor at editor@beinglibertarian.email

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Entropy and Authority - Being Libertarian