David R. Henderson  

Gary Johnson's Bold Attack on Freedom of Association

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The Our America initiative, which is headed up by 2012 Libertarian presidential candidate and former two-term New Mexico Gov. Gary Johnson, has produced a sharp commercial asking for donations to fund a legal challenge to presidential debates. The basic argument? The debates should be open to "all qualified candidates." Which implies that both the Dems and Reps may have to rethink their candidate-selection processes.
This is a quote from Nick Gillespie, "Change the Presidential Debates": Gary Johnson and Our America's Bold New Lawsuit," Reason Hit and Run, April 21.

Go to the link Nick supplies and you find out that:

The vast majority of Americans who rely on the nationally-televised Presidential Debates to help make their voting decisions have no idea that the "official" General Election debates are, in fact, productions of a private, nongovernmental organization comprised of representatives of the Democrat and Republican parties who exercise complete and exclusive control over the process. That is just wrong, and Our America is committed to challenging this political duopoly in the nation's courts. Help fund the lawsuit to make the Presidential Debates fair.

So clearly, although many Americans do not understand that the organization choosing who is in the debates is "a private, nongovernmental organization," Gary Johnson does.

One of the most basic tenets of freedom is that people should be free to associate. This means the freedom not to associate. Go to the Gillespie article and watch the video and it will tell you how horrible have been the results of the two-party system in America. But the video, which lasts over a minute and a half, doesn't have even one sentence making the case that it's alright to deny people's freedom of association. I did due diligence. I looked at every link provided on the Our America site and couldn't find even a semblance of an argument against Republicans' and Democrats' freedom of association. Maybe that shouldn't be surprising. It's hard for someone who believes in freedom to make that case.

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COMMENTS (22 to date)
Roger Koppl writes:

I think I gotta disagree on this one, David. It's a bit like a second-best argument, I suppose. Of course we are agreed on the importance of the freedom of association. But here we have FCC licensed broadcasting networks supporting the monopoly power of the two main parties, thus tending to further empower the state and limit our liberties. I think the overall effect of the rules to which Johnson objects are to reduce liberty in America.

It is true, however, that I could not find the gist of their legal argument on the OurAmericaInitiative website. Thanks to anyone who can flesh that out in this forum.

Eric Hanneken writes:

I don't even understand what Gary Johnson hopes to accomplish. If Barack Obama, Mitt Romney, et al wished to debate him, they would, no matter what criteria the Commission on Presidential Debates uses. They don't want to debate Johnson, so they don't. If Johnson manages to force the Commission to change their rules, then what? How is he going to force Democratic and Republican candidates to show up?

David R. Henderson writes:

@Roger Koppl,
I think the overall effect of the rules to which Johnson objects are [sic] to reduce liberty in America.
Could be. I think that when some statists exercise their freedom of speech, that can reduce liberty in America too. But I still think they should have freedom of speech.

Roger Koppl writes:

Ross Levatter has pointed me to the Wikipedia article that says Johnson is using an anti-trust argument:
"On September 21, 2012, Libertarian presidential candidate Gary Johnson filed an anti-trust lawsuit against CPD, the RNC and the DNC in D.C. Circuit Court citing the Sherman Act and claiming "restraint of trade" for denying competition to, for example, potentially receive the $400,000 annual presidential salary. Although the complaint recounts the history of CPD formation, it omits any mention of either the Nader/Hagelin 2000 lawsuit or the FEC. The Johnson complaint asks "for injunctive relief by temporary restraining order ... by enjoining defendants ... from conducting presidential debates unless all constitutionally-eligible candidates are included whose names will appear on the ballots in states whose cumulative total of electoral college votes is 270 or more."[29] As of September, 2013, the case is still active.[30]"

Thank you, Ross.

MikeP writes:

Hmm. Anti-trust. That's disappointing.

I would think that the proper remedy here is simply to line up with existing requirements that the sponsor of a campaign commercial announce the sponsorship. Each debate run by the Commission should be preceded and followed by an statement that the debate is an advertisement for the appearing candidates sponsored by the Republican and Democratic parties.

Done and done. And not worth that much.

R Richard Schweitzer writes:

One of the issues seems to be related to the dissemination of the debates through public broadcasting.

Perhaps it would be of some value to provide a sufficiently representative organization (Libertarians) with "equal time" for commentary and views, to be interspersed in the periods of the debates, and in a summary, possibly to displace some of the "punditry" that has been used to fluff out the significance of what has been said (or omitted).

That would probably result in a preference for inclusion, rather than allow unchallenged commentary.

Roger Koppl writes:


Act vs. rule. Particular acts of statist speech may have a bad effect, but ad hoc attempts to craft rules that exclude speech expressing particular content are generally more harmful in their overall effects than somewhat simpler rules that tolerate the obnoxious content. Yes, I said "generally." If you can construct a strong argument for this or that exception, it gets a hearing and might, in this or that case, be right. Yelling "fire" in a crowded theater may or may not be an example, but the law does recognize restrictions on certain acts -- certain speech acts -- of incitement and provocation.

Presumably, the consequentialist argument against Johnson's case would be the sort of thing I just mentioned. And those considerations do not disappear in this case. But there are other considers to be weighed, including the overall tendency to support or corrode liberty and democracy. My sense is very much that we have here a case in which the rule tolerating private association needs amending.

I suppose we could also take the approach the the association in question is not "really" private at all, given the role of coercion in supporting the two main political parties. I think such considerations apply in this case, but I don't think that gets you out of the indirect-utilitarian calculus I have sketched since "private" and "public" are deeply entangled in our current system of political economy. But these are not unrelated considerations. It is probably only in an entangled political economy (R. Wagner) that such limits to the right of association will survive the consequentialist calculus. And there, indeed, is the similarity to second-best arguments in economics.

John Hall writes:

I agree with Roger Koppl.

adbge writes:

It's too easy in these discussions to lose sight of the point of "fundamental" rights. When I reflect, at least, the point of a right is a means to an end, not something that can be consumed in itself. The purpose of, say, the right to bear arms is not that owning a gun is great, but rather a means of ensuring safety via self-defense. It's a pathway to an intrinsic good: freedom from fear (and suffering generally.)

Even liberty itself seems at least partially reducible to other concerns, or at least sort of fungible. I would trade 1% of my freedom for 50% more happiness, etc.

Deontologists will, of course, disagree.

raj writes:

Plurality voting (winner-take-all) seems more responsible for the two-party system than the formal campaign process. Upstarts with broad but diffuse national support face a very high barrier to entry.

David R. Henderson writes:

I helped get the Libertarian Party on the ballot in California in 1979-80. There are huge government barriers to entry. The two major parties have carefully colluded to craft the rules to exclude third parties.

Greg G writes:

----"how horrible have been the results of the two-party system in America. "

Yeah, if by "horrible" results you mean arguably the freest and most prosperous country in human history.

I'm curious. Which are the more than two party systems that have gotten less horrible results?

Matt H writes:

Reading through the comments here has made me think that the television time given to the debates is a donation to the two main parties. I wouldn't have a problem if he went after the networks for that, but the debate commission is just a private group acting on the behalf of their members.

Robert D writes:
There are huge government barriers to entry. The two major parties have carefully colluded to craft the rules to exclude third parties.

Doesn't that bolster Gary Johnson's argument? The two primary parties are colluding to limit political competition. If I recall correctly weren't the debate rules amended in the last election cycle from including anyone with a 5% or higher showing in at least 2 national polls, to requiring a candidate to have a 15% showing in 2 national polls. At the time of the change Gary Johnson was close to hitting 5%. Isn't that indicative of collusion?

In the end it seems as though the voting public loses because other opinions are silenced in what is ostensibly considered a public debate. I don't think Gary Johnson will be successful, and if he does prevail it will probably guarantee the end of public debates. The primary parties have too much to lose if a charismatic 3rd, 4th, or even 5th party candidate appears and shows the American people a truly different vision for the country.

Eric Hosemann writes:

I'm not sympathetic to David's argument at all. Perhaps it would work if freedom of association was a principle held in more esteem by those in power. But it isn't. Political and economic incumbents everywhere strive to use government power to protect their positions and in most cases succeed well enough to make libertarian arguments against them sound foolish.
Gary Johnson isn't operating in an environment in which freedom of association is politically accepted, and I don't think current developments in drug policy and marriage laws count as evidence that people are more free to associate than in the past. This is putting the cart before the horse. Rather, I think these trends have been misidentified by libertarians in order to bolster arguments in favor of free association. People are in general peaceful and tolerant well in advance of the politicians who claim to represent them. Marijuana use is becoming more acceptable de jure, but it was already pretty acceptable de facto; likewise, most people, if pressed, would agree that all people have the right to freely associate regardless of sexual orientation. It is the question of who gets the artificial and arbitrary government benefits of marriage that drove divisiveness on gay marriage. Perhaps a better way to make my point would be to highlight the fact that government by its nature is the precise opposite of freedom of association, and therefore it is no surprise that a person ostensibly in favor of that freedom would have to use legal tools developed to hamper it in order to get a government position.

Andrew_FL writes:

I am reminded of a statement from Capitalism and Freedom. Something about how a socialist state would have to, to ensure political freedom, subsidize subversive dissent.

Pajser writes:

USA is association, isn't it? The associations can condition membership, it is part of the freedom of association. Generally, freedom of association is rarely the issue. The property that belongs to association is usually the issue. Essentially Johnson doesn't complain about "a private, nongovernmental organization," but about its ownership over presidential debates. He wants that USA association nationalize presidential debates.

Matt Skene writes:

Don, Robert, and Lisa all make widgets. You are hired by a company to purchase the best, lowest cost widgets available. As part of your decision process, you set up regular meetings with widget makers who you might buy from. You happen to like Don and Robert, but you don't like Lisa. You know that some people think Lisa makes the best widgets for your company, but you also know you would have to spend some time talking to Lisa if you bought widgets from her. Do you have the right, as an employee of that company, to refuse to do your job properly on the grounds that you would have to talk to Lisa? I wouldn't think so. Private rights usually don't transfer to situations where you have knowingly accepted responsibilities that directly conflict with exercising those rights. Since pretty much everyone knows that as part of their jobs they will have to deal with people they would prefer not to deal with, this would seem to include your right to free association in employment situations.

Would your responsibilities change if you got some friends involved in the process? I don't see how. Suppose you have some friends who haven't been hired by your company, but for various reasons have some interest in who you choose to buy from. Some of them want you to buy from Don, and others from Robert. Your friends ask you to let them decide which widget makers to invite to your meetings. You agree, knowing full well that, thankfully, they will never choose Lisa. Your friends, of course, have a right of free association in choosing who to invite to your meetings, and their right isn't limited by obligations to your company. But I can't see how their rights makes your process of deciding who to buy from any more justified. You are still failing to fulfill your obligations to your company, even if you are doing so by letting a third party exercise their rights.

Politicians are supposed to be public servants. By getting their friends together to limit who they have to associate with in ways that are potentially detrimental to the public, politicians are violating their obligations to the people they're supposed to serve. If they don't want to have to associate with members of less popular parties, then they should quit their jobs and do something else, just like the widget buyer should if he really doesn't want to deal with Lisa. In the meantime, hiding behind the rights of their associates in deciding who to invite to these meetings doesn't make their actions morally acceptable.

NZ writes:

Libertarianism for me, but not for thee.

That sounds pretty nice, actually.

Robert D writes:

The problem we are struggling with is determining whose rights deserve priority. After much deliberation I think Mr. Henderson is likely correct. Even though the debates are shamelessly self-serving, forcing the two parties to open the platform is the wrong action to take. If the two big government parties want to debate one another while excluding other candidates that is their right. It doesn't matter how slimy the whole affair may be, or how much I detest the self-serving nature of the dog and pony show.

We need to take our complaints to the news organizations who host these events under the guise of informing the public. CNN, Fox News, and NBC could refuse to broadcast the debates unless the candidates agreed to open the floor to more diversified points of view. These companies are complicit in maintaining the closed nature of the debates.

Nick Gillespie is wrong about the debates, they are highly visible events but do little to sway opinions beyond the next week. It would certainly be interesting to have a nationally televised debate the night before the election. Although I liked Gary Johnson let's be honest, his performance in the Republic primary debates was terrible. It was probably a good thing for his campaign that he was excluded from the Presidential debates.

There are other avenues for getting your message out to the public. Admittedly social media and grass roots campaigning can't compete with a nationally televised event, but that isn't sufficient reasoning to deny the right to free association. Maybe an independent party should aim for a Ross Perot style one-man show for a half-hour during prime time. 30 minutes to sell your vision of the country - GO! At the very least that would be interesting.

Robert D writes:

@Matt Skene

Doesn't this line of reasoning apply more to the news outlets who host the debate? Candidates have a responsibility (if elected) to be good leaders. They have no responsibility to foster differing ideas. The news outlets however, supposedly exist for the purpose of informing the public (in reality they are profit seeking companies first, but we won't go there). They are failing to achieve their goal by allowing the debates to be aired in such a restricted format. It's broadcasters who fail to meet their duty, not the candidates.

Forcing the two main parties to open the debate platform still feels like an needless assault on free association. The only argument I'm seeing to force open the platform is "it's for the public good." I don't see how that is a logically consistent position for libertarians, and it undermines the right to free association. We can demand more open debates, but we shouldn't throw away free association for a legal challenge which will likely do little to elevate libertarianism or lead to a more informed public.

Mark V Anderson writes:

I agree totally with Prof. Henderson. But even more from just a common sense perspective than a rights perspective. Of those watching debates, how many want to see the Libertarian? Very few I expect. Most folks want to hear the two leading candidates and not waste their time with someone everyone knows won't win.

It is a statist idea that everyone is supposed to have equal time and thus should waste all the watchers' time. I HATE the tokenism Democrats use to include under-represented minority "representatives" instead of the ones that have been chosen by the majority. This action smacks of a similar motivation.

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