Category: reason

Sen. Rand Paul (R–Ky.) has proposed legislation that would protect whistleblowers from retaliation but that would also likely expose their identities in criminal and presidential impeachment proceedings.

Paul caused a stir Monday at a rally for President Donald Trump by calling for the media to reveal the identity of a whistleblower who passed along information he or she believed implicated Trump in withholding aid to Ukraine unless the country opened an investigation into alleged corruption by Joe Biden’s son Hunter. The next day, Paul said that he himself might reveal the whistleblower’s name.

On Wednesday, Democrats in the Senate asked for unanimous consent to pass a resolution showing general support for whistleblowers. The resolution does not actually do anything—it’s just a public acknowledgement that the Senate, in general, supports whistleblowers and encourages the executive branch to protect them from retaliation for any wrongdoing they might reveal.

Paul, however, objected to the resolution and wants to replace it with his own bill, “The Whistleblower Protection Act of 2019.” The bill would expand whistleblower protections to government contractors, not just government employees, and would be retroactive if passed, meaning that Snowden might potentially be able to include himself in current whistleblower protections as a defense against charges of espionage.

If that’s all Paul’s bill did, that would be awesome. But there’s more. Appended at the end is this section:

Congress reaffirms that, in the case of criminal prosecutions and impeachments arising from the disclosures of whistleblowers, the accused has the right to confront his or her accuser in such proceedings and that right is not superseded by the whistleblower protections.

In a companion piece over at The Hill, Paul explains this inclusion protects Trump’s Sixth Amendment rights:

The “whistleblower’s” revelation, however, has resulted in an impeachment proceeding, essentially a trial of the president. If convicted, the impeachment trial could lead to criminal penalties after the president’s term in office.

Anonymity is not an option when your accusations trigger criminal penalties. The Sixth Amendment guarantees the right to confront one’s accusers. The witness must both face his accuser and face questions regarding his own knowledge and activities.

The Ukraine investigation has not yet “resulted in an impeachment proceeding,” and the House of Representatives has not yet voted to impeach Trump. Paul will know when that happens because he will essentially serve as a juror as a member of the Senate. What’s more, impeachment is not a criminal prosecution. The only “penalty” that will directly come from impeachment would be Trump’s removal from office.

Trump could face prosecution for his alleged actions following his departure from office. If the information from the Ukraine whistleblower were to be used as evidence in a criminal trial, Trump would be protected by the Sixth Amendment’s right to confront and defend himself against his accusers. He doesn’t need Paul’s bill to exercise that right.

It’s even reasonable to expect that Trump should be allowed to face the whistleblower if his impeachment proceeds to the Senate and the whistleblower’s testimony is used as evidence. If the whistleblower won’t come forward, Paul can use that as justification for declining to remove Trump from office.

But the way Paul is talking about revealing the whistleblower now—during the investigation itself—is akin to the police revealing the names of witnesses to a suspect long before that suspect has been charged with any crime. Imagine, for instance, what would happen if police were investigating a member of a violent street gang for shooting up somebody’s house, and the police told the alleged shooter the names of eyewitnesses they had talked to before ever charging him. The Sixth Amendment does not require the naming of witnesses in an investigation, nor should it. The Sixth Amendment, as it is written, applies to “criminal prosecution.” Leaving aside the question of whether impeachment proceedings fall under the category of a “criminal prosecution,” Trump is merely being investigated at the moment.

What’s more, Paul’s efforts to publicly identify the whistleblower, were they occurring in an actual criminal investigation rather than an impeachment investigation, would look a lot like witness intimidation.

Paul may want to protect whistleblowers from a narrow set of government sanctions, but he’ll also expose them any number of destructive consequences for speaking out against powerful and connected elected officials.

Naturally, some other lawmakers are making political hay out of this by running in the opposite direction in ways that are even more bad, stupid, and unconstitutional:

In the future, you will go to jail if you out a whistleblower. Legislation coming.

— Rep. Eric Swalwell (@RepSwalwell) November 7, 2019

Will this debate get dumber? You can count on it.

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A cert petition (available here) has been filed with the Supreme Court in the latest case involving “faithless electors,” Chiafalo et al. v. State of Washington. [Historian Michael Rosin and I have submitted an amicus brief, available here, in support of the petition.] I’m betting that the Court will grant the petition and finally give us its views on a fascinating, and very thorny, question of constitutional law: to what extent may States control the behavior of presidential electors in the performance of their electoral duties?

The Chiafelo case involves three of Washington State’s presidential electors in the 2016 election.  Each had been included in a “slate” of potential electors submitted by the WA Democratic Party to the WA Secretary of State. When Hillary Clinton won the Washington popular vote, the WA Secretary of State, in accordance with WA law, appointed the members of the Democratic slate to be the State’s presidential electors.

WA law requires the electors to vote in accordance with their direction from the Party which nominated them, and backs that up with punishment if they act otherwise:

“Any elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.”  RCW 29A-56-340.

But when the State’s electors convened in Olympia in December, 2016, the three petitioners in this case, instead of voting for Hillary Clinton, cast their ballots for Colin Powell. They were subsequently fined $1000 each for having so.

The question presented is whether whether the Constitution permits a State to mandate for whom presidential electors must vote, and to enforce that mandate via ex post punishment, or, conversely, whether the right of electors to use discretion in deciding who to vote for is a federally-guaranteed one that is protected against State interference.

The Washington Supreme Court upheld the imposition of the fines (opinion available here), on the grounds that Article II Sec. 1 of the Constitution “gives to the states absolute authority in the manner of appointing electors [and that] it is thus within a state’s authority to impose a fine on electors for failing to uphold their pledge.”

My prediction that the Court will grant the petition and hear the case is based not only on the fact that this is a pretty important question of constitutional law, but on the existence of a clear split of authority on the matter. As some of you may recall, several months ago the 10th Circuit invalidated a Colorado statute similar in purpose and effect to Washington’s (see my blog posting about this case here), and regardless of one’s views on the merits, it is clearly intolerable to have different interpretations of core constitutional provisions in different parts of the country.  Moreover, as we stress in our amicus brief, this question could well recur in the context of a dispute over the outcome of a presidential election, and the Court is surely better able to assess and weigh the complicated constitutional arguments on both sides without the intense time pressure (see Bush v. Gore) such a dispute would invariably involve.

One of the things that makes this such a fascinating constitutional question—at least, in my eyes—is the disparity between our long-standing practice regarding the operation of the “Electoral College” and the original constitutional scheme. While we have come to regard the electors as performing a purely formal function—a “kabuki democracy”-style ceremonial ratification the results of the presidential election—it is hard to deny that the Framers had something very different in mind. As Justice Jackson put it some time ago:

“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, is that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation’s highest offices.” Ray v. Blair, 343 US 214, 232 (1952).

Or as Chief Justice Fuller put it in 1892:

“Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive, but … in relation to the independence of the electors, the original expectation may be said to have been frustrated. Macpherson v. Blacker, 146 US 1, 36 (1892).

Hamilton’s Federalist No. 68 is the primary, though hardly the only, support for this view of the “original expectation” of the Framers. Hamilton stressed the importance of having the president elected by “men most capable of analyzing the qualities adapted to the station,” noting that a “small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.”

As we put it in our amicus brief:

From the framing and ratification of the Constitution through the early elections, the ratification of the Twelfth Amendment, the adoption of the Twenty-Third Amendment, and Congress’s consistent acceptance and counting of anomalous electoral votes, historical evidence shows that the Framers and every Congress to consider the question understood the Constitution as empowering electors to “vote according to their best judgment and discernment.”

It was expected, in short, that these electors would actually elect a president—not merely ratify the results of an election by others. This was part of the Constitution’s remarkable, and remarkably ingenious, method of diffracting the power to appoint officers of the new federal government by distributing that power to different bodies of electors. The “People of the several States” would choose Members of the House of Representatives, Art. I Sec. 2; the members of the State legislatures would choose Senators, Art. I Sec. 3**; and a third body, composed of presidential electors who would be appointed by each State “in such Manner as the Legislature thereof may direct,” would choose the President and Vice-President. Art. II Sec. 1 and Amend. XII.

**The method of Senatorial appointment has, of course, been modified by the 17th Amendment, providing for popular election. No such modification, however, has changed the terms of the presidential election scheme.

It hasn’t functioned that way in a long time, because the States have all chosen to use their power and authority over elector appointment in a more-or-less uniform manner**: all States appoint electors named by the political party of the candidate receiving the highest number of votes in the State, winner-take-all. The political parties, in turn, can be relied upon to name individuals who will—and almost always do—cast their ballot for their party’s nominee.

**Maine and Nebraska have slight variations on this scheme, irrelevant to the issues raised in this suit.]

Nobody questions the constitutional authority of the States to appoint electors in this fashion. The question, though, is whether States can require electors, once they have been appointed, to cast their ballot in any particular way by subjecting them to punishment if they act otherwise.

Personally, I think the 10th Circuit got this one right, and the Washington Supreme Court got it wrong: the electors are performing a federal function, and the seminal case of McCullough v. Maryland stands for the proposition that the Supremacy Clause disables the States from interfering with their performance of those federal functions.  The States’ (undisputed) power to appoint electors, in other words, does not give States the power to control their activity once they have been appointed and have begun to perform their federal function as electors.

Another interesting feature of this case is the way that the petitioners’ position could garner support from Justices who take different approaches to constitutional interpretation. Strict originalists may be persuaded that the Framers clearly intended for electors to retain a discretionary role at odds with Washington’s actions here; at the same time, Justices who are perhaps more comfortable with Justice Marshall’s view of the need for broader protection for the instrumentalities of federal power against State encroachment may also not want to countenance Washington’s interference with an institution—the Electoral College—so central to the function and composition of the federal government.

And if the Court were to follow the 10th Circuit’s lead (and mine!) and invalidate Washington’s actions on Supremacy Clause grounds, what then?

That’s hard to say.  In the short term, there may be little effect on the presidential election process, inasmuch as the States will continue to rely on the political parties to nominate electors, and those electors will likely continue to act in accordance with party directives, not because they’re afraid of being fined were they to do otherwise but because they support their party’s nominee and were chosen by the party precisely on that basis.

But over the longer term, a decision in petitioner’s favor could have deeper and more long-lasting implications. We could, perhaps, find ourselves with something more closely resembling the Framers original scheme, where electors actually take it upon themselves to choose the person best fit for the office of president.

On the other hand, Harvard law professor Lawrence Lessig, who is representing the petitioners in this case, points to other possible outcomes. In an interview with Adam Liptak in the NY Times, Lessig said that:

“… a decision in [petitioners’] favor could help focus public attention on the shortcomings of the Electoral College in reflecting the popular will. One response, Lessig said, is the National Popular Vote plan, under which states agree to grant their electoral votes to the candidate who gets the most votes nationwide…. It could also convince both sides that it is finally time to step up and modify the Constitution to address this underlying problem.  One possibility, he said, is a constitutional amendment requiring a proportional allocation of electoral votes at the state level.”

Either way, it’s a pretty consequential change in our electoral system.

And, though it is not relevant to the disposition of this case, I must say that I think we’d be a lot better off with Colin Powell as our Chief Executive than the one we actually have.

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All I can say is, “Yow.” From Berger v. Imagina Consulting, Inc., decided Nov. 1, 2019 by Judge Cathy Seibel:

On April 5, 2019, Defendant filed a letter with the Court requesting a discovery conference. That same day, I granted Defendant’s request and scheduled a discovery conference for April 12, 2019 at 11 a.m. I also ordered Plaintiff to respond to Defendant’s letter by April 9, which Plaintiff did. On April 12, the Court held the discovery conference, but Plaintiff’s counsel, Richard Liebowitz, did not appear and did not call or email the Court or Defendant’s counsel to explain his absence. That same day, I ordered Plaintiff to show cause in writing, on or before April 17, 2019, why he failed to appear for the conference and why he should not be required to pay Defendant’s attorney’s fees for the time expended to appear at the conference. The Court also rescheduled the conference for April 18, 2019.

By letter dated April 15, 2019, Mr. Liebowitz advised that he had missed the conference because of a death in the family which was an “unexpected urgent matter” to which he had to attend. He also said he would be out of the office on April 18 and asked to appear by phone at the rescheduled discovery conference.

The conference was held by phone on April 18. Mr. Liebowitz represented that the death in the family occurred on the morning of April 12 and apologized for not letting Defendant’s counsel and the Court know. During the conference, issues were discussed that reflected negatively on Plaintiff’s counsel’s credibility. For example, Plaintiff had answered interrogatories saying his damages calculation had relied on “contracts, invoices, [and] licensing agreements,” but when Defendant requested those documents, Plaintiff said he could not produce them without a protective order. After Defendant agreed to a protective order and the Court signed it, Plaintiff still produced nothing, despite twice promising to do so.

Further, Defendant’s counsel represented that Mr. Liebowitz had told Defendant’s counsel that he could not comply because he was out of the country due to an emergency, when in reality he was at a trade show in Europe trying to drumup business.

At that point, concerned about Mr. Liebowitz’s credibility and the possibility that he was trying to increase costs for Defendant’s counsel, I determined that I could not merely accept Mr. Liebowitz’s representation that he missed the April 12 conference because of a death in the family, and directed that, among other things, by May 1, Mr. Liebowitz provide evidence or documentation regarding who died, when, and how he was notified. I also permitted Defendant’s counsel to submit his billing records relating to the discovery dispute by May 1, with Mr. Liebowitz having until May 15 to submit opposition to Defendant’s application that Plaintiff cover thosefees. {I also expressed concern over how Plaintiff’s claim of $5000 in damages could possibly have been made in good faith.}

By letter dated May 1, 2019, Mr. Liebowitz represented that his grandfather had unexpectedly died on April 12, 2019 and that Mr. Liebowitz was needed to assist with certain customs for which arrangements had to be made in advance of the Sabbath. That same day, I endorsed the letter as follows:

“This letter is not responsive to my instruction. Mr. Liebowitz was to document who passed away, when the person passed away and when Mr. Liebowitz was notified. The reason I requested documentation is that there is reason to believe Mr. Liebowitz is not being candid. So a letter from him does not advance the ball. When someone dies, there is documentation including a death certificate and (almost always) an obituary, and nowadays one’s phone usually contains evidence of what one was told and when. Mr.

Liebowitz may have until 5/3/19 to supplement this letter.”

On May 3, 2019, Plaintiff filed a notice of settlement. On May 7, 2019, I advised as follows:

“I’m glad the parties have resolved the case (and, I presume, the issue of Plaintiff’s counsel’s expenses for the April 12 conference), but there remains one open issue: Mr. Liebowitz’s failure to document the death in the family that he says caused him to miss the conference. He was supposed to address that issue by May 3, but I will give him until May 9. Even if Defendant has been made whole, I still need to satisfy myself that there is no need for disciplinary or other inquiry.”

On May 9, Mr. Liebowitz filed a Declaration in which he “re-certif[ied]” that the statements in his April 15 and May 1 letters were true, and he stated that he believed that his Declaration discharged his obligation to the Court.

On May 13, I responded that Mr. Liebowitz’s May 9 Declaration did not resolve the matter because, given the issues surrounding Mr. Liebowitz’s credibility and his failure to provide any information or documentation regarding his grandfather’s death, Mr. Liebowitz’s reiteration could not sufficiently discharge his obligations to the Court. I therefore issued an order to show cause, requiring Mr. Liebowitz to provide documentation or other evidence (apart from his own word) that demonstrated that a death in the family had occurred that prevented him from attending the April 12 conference and timely notifying the Court and Defendant’s counsel of his inability to attend.

Rather than comply with the Court’s order to provide the above documentation, on May 16, Mr. Liebowitz again submitted a Declaration reiterating his belief that his statements contained in the April 15, May 1, and May 9 letters were sufficient to discharge his obligations in response to the Court’s order to show cause.

On July 26, I ordered Mr. Liebowitz, under pain of contempt, to provide a copy of his grandfather’s death certificate so as to support his claim that he could not attend the April 12 conference, nor provide timely notice to the Court or opposing counsel, as a result of his grandfather’s death. In response, Mr. Liebowitz submitted another Declaration on August 12, stating that he believed that his previous letters sufficed to fulfill his obligations to the Court (in spite of the fact that I explicitly requested documentation other than “his say-so,” and that he should not be required to submit his grandfather’s death certificate because it is “a personal matter.”

As I noted in my August 19 response to Mr. Liebowitz’s letter, however, although the death of a family member is certainly a personal matter, questions regarding Mr. Liebowitz’s candor before the Court are professional in nature.   I reassured Mr. Liebowitz that, if he was concerned about the death certificate being available on the public docket, he was welcome to provide the document directly to my chambers to ensure his privacy.  I also made clear that, should he fail to provide the requested documentation by August 26, he would be held in contempt of court and subject to sanctions, including monetary sanctions and/or referral to this Court’s Grievance Committee.

 

On August 26, the day Mr. Liebowitz was required to provide his grandfather’s death certificate pursuant to my August 19 order, Mr. Liebowitz instead submitted another Declaration. In this Declaration, Mr. Liebowitz argued that he was not in contempt because this Court’s request for his grandfather’s death certificate was unlawful, as it “likely constitutes a usurpation of judicial authority or a breach of judicial decorum”; his previous Declarations complied with my previous orders; “there [was] no basis to impose monetary sanctions”; and the Court’s assurance that his grandfather’s death certificate would not be made public was insufficient to protect his right to privacy.

On September 27, I endorsed Mr. Liebowitz’s latest Declaration, stating that:

“There is nothing unlawful about my August 19, 2019 order. There was also nothing unclear about it. Likewise, Mr. Liebowitz’s failure to comply is apparent beyond any reasonable doubt. Finally, he has not diligently attempted to comply. To the contrary, while maintaining that the death occurred (and thus implicitly conceding the existence of a death certificate), he has repeatedly refused to provide it, even after the Court made clear that his “good faith declarations” were insufficient and after the Court agreed that the document need not be publicly filed. He has not shown or even alleged an inability to comply.”

I therefore declared Mr. Liebowitz to be in contempt of court, and ordered that, should he fail to comply with my order and provide the requested documentation by October 2, he would be subject to monetary sanctions of $100 each business day until he complied.  I also informed Mr. Liebowitz that, “[s]hould this sanction prove insufficient” to ensure his compliance, “additional or different sanctions [would] be considered.”

On October 2, Mr. Liebowitz wrote a letter to my chambers requesting an in-person conference to discuss my September 27 order, and also requesting a stay of that order “[f]or just cause” until the conference could be held. I denied his request, noting that Mr. Liebowitz’s letter had not stated what purpose would be served by an in-person conference, nor had it supplied any justification for a stay of my September 27 order. Mr. Liebowitz submitted another letter the next day, October 3, reiterating his request for an in-person conference to discuss his grandfather’s death certificate and for a stay “[f]or just cause.” I again denied the application, because Mr. Liebowitz had not articulated any purpose that the conference would serve, nor did he supply any cause to stay my September 27 order.

I further ordered Mr. Liebowitz to refrain from filing any further requests for a conference unless he could explain specifically what purpose would be served by the conference and to refrain from filing any further requests for a stay of my September 27 order unless he could specifically state a justification for a stay.  I notified Mr. Liebowitz that his first payment under the contempt sanction was due to the Clerk of the Court on Monday, October 7.

On October 7, Mr. Liebowitz sent a letter requesting a two-week extension to deliver his grandfather’s death certificate and requesting that the monetary sanctions be stayed until after the extension had elapsed.  This request had come at 8:34 p.m. on October 7, well after the Clerk’s Office had closed. That same night, I denied Mr. Liebowitz’s request for an extension.  As of November 1, 2019, Mr. Liebowitz has not made any of his required payments. By the Court’s count, Mr. Liebowitz was obligated to pay $300 on October 7, 2019; $400 on October 15, 2019; $400 on October 21, 2019; and $500 on October 28. { I will not count Yom Kippur, which fell October 9, 2019, as a business day[, and] Monday, October 14, was a national holiday.}

Richard Liebowitz, Plaintiff’s counsel in this case, is now in contempt of my August 19, 2019 and September 27, 2019 orders. The $100 fine he accrues each business day has plainly been ineffective to coerce compliance with the August 19, 2019 Order.

Accordingly, the daily contempt sanction is hereby increased to $500 a day, effective November 6, 2019. Starting on that date, Mr. Liebowitz will be sanctioned $500 per business day (payable on Monday of each week, or Tuesday if the office of the Clerk of Court is not open on Monday) until he has complied in full with my August 19, 2019 and September 27, 2019 Orders.

Further, Mr. Liebowitz is hereby ORDERED to appear before this Court in person on November 13, 2019 at 10 a.m., and there and then SHOW CAUSE why he should not be incarcerated until such time as he complies with the above-described orders (and, if applicable, the instant order).

Failure to appear as directed will subject Mr. Liebowitz to arrest by the United States Marshals Service without further notice.

For more posts about judges and Mr. Liebowitz, see here, here, and here.

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Presidential adviser Kellyanne Conway suggested yesterday that the Food and Drug Administration (FDA) may decide to exempt vape shops from its pending ban on flavored e-cigarettes. There is a certain logic to that, since those shops, unlike other retailers, do not admit minors, and curbing underage vaping is the rationale for the ban. But it’s not clear that approach would be legal. Furthermore, Conway’s assertion that the FDA “do[es] not have jurisdiction over vaping and vape shops” is puzzling, given how the agency understands its regulatory authority.

The FDA derives its authority over vaping products from the Family Smoking Prevention and Tobacco Control Act, which allows it to regulate “any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product.” Although e-cigarettes do not contain tobacco, they typically deliver nicotine that is derived from tobacco, and in 2010 the U.S. Court of Appeals for the D.C. Circuit agreed that is enough to make them subject to FDA regulation.

But the Tobacco Control Act also says the FDA may not “prohibit the sale of any tobacco product in face-to-face transactions by a specific category of retail outlets.” On its face, that provision means the FDA may not ban sales of flavored vaping products in convenience stores while allowing them in vape shops.

That is how the National Association of Convenience Stores reads the law. “The Tobacco Control Act is clear that the FDA can’t discriminate against one type of retail outlet, and that’s what they’re trying to do here,” Doug Kantor, a lawyer for the trade group, told The New York Times when the issue came up last year. “There is a very good chance this will end up in litigation.”

Conway seems to be suggesting a way around that obstacle by arguing that the FDA simply does not have jurisdiction over open-system vaporizers (as opposed to cartridge-based products such as Juul) and the e-liquids used in them. But that is plainly inconsistent with the way the FDA has interpreted its regulatory authority under the Tobacco Control Act.

According to the FDA, any device that can be used to deliver tobacco-derived nicotine qualifies as a tobacco product, and so do the e-liquids used with such devices. The agency says even a nicotine-free e-liquid (NFL) can count as a “component or part” of a tobacco product. “Assuming an NFL is not made or derived from tobacco,” the FDA says, it is still subject to the agency’s e-cigarette regulations “if it is ‘intended or reasonably expected’ either ‘(1) To alter or affect [a] tobacco product’s performance, composition, constituents, or characteristics; or (2) To be used with or for the human consumption of a tobacco product; and is not an accessory.'” Hence “an NFL that is intended or reasonably expected to be mixed with liquid nicotine would qualify as a ‘component or part.'”

Contrary to Conway’s comments, the FDA plainly believes it does “have jurisdiction over vaping and vape shops,” which is consistent with the interpretation upheld by the D.C. Circuit. And if open-system vaping devices and the e-liquids used in them are indeed tobacco products subject to FDA regulation, the Tobacco Control Act seems to preclude a flavor ban that is selectively applied to “a specific category of retail outlets.”

Perhaps what the FDA plans to do is ban flavored cartridges everywhere, based on the premise that Juul-like products are the ones preferred by teenaged vapers, while allowing flavored e-liquids used in open-system devices. But that distinction would not draw a line between different categories of retailers, and it would not rely on a new understanding of the agency’s authority.

Last year the FDA proposed a rule that would allow sales of flavored e-liquids in stores that do not admit minors (i.e., vape shops) or that put those products in “a section” that “adequately prevents entry of persons under the age of 18,” as long as the products “are not visible or accessible to persons under the age of 18 at any time.” Although that approach notionally allows convenience stores to continue selling flavored e-liquids, the segregation requirement probably would be prohibitive in practice. It is therefore not clear such a rule would pass muster under the Tobacco Control Act. While allowing adults to continue buying flavored e-liquids from some sources is certainly preferable to a blanket ban, I’m not sure how that policy can be reconciled with the law.

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With all the news-news, let alone news specifically concerning Democratic and Republican candidates for the 2020 presidential election, you can be forgiven for not keeping up with the race to win the nomination of America’s third-place political party.

But news there was this past weekend at the South Carolina Libertarian Party state convention. Author and longtime libertarian hand Jacob Hornberger, the 69-year-old founder and president of The Future of Freedom Foundation, formally announced his candidacy for president, immediately becoming one of the most well-known of the dozen or so names working actively to take the baton from two-time nominee Gary Johnson.

Hornberger, the third-place finisher in the 2000 Libertarian presidential race, portrays his candidacy as a way for the party to return to principle, an implicit critique of nominating former Republican elected officials in the past three cycles. In this, the friend-of-Ron-Paul shares a commonality with the other source of Libertarian weekend news from South Carolina, which was a debate I moderated between six of Hornberger’s competitors.

Across multiple questions, including an open-ended query about lessons learned from Johnson’s record-shattering 2016 campaign, the sextet of Adam Kokesh, Kim Ruff, Jo Jorgensen, Ken Armstrong, Dan “Taxation is Theft” Behrman, and Vermin Supreme made it clear that candidates are competing to represent the Libertarian wing of the Libertarian Party.

Ruff, who won the post-debate straw poll, volunteered her main takeaway from 2016. “We should not allow ourselves to be bullied,” she said. “We should not allow ourselves to be put in a position where we’re effectively told that if we don’t elect a certain person, or nominate a certain person to represent us, then we’re going to have the whole thing fall apart. We shouldn’t buy into lies—because that’s what we were fed—and we should stand up and have a fearless Libertarian as our standard-bearer.”

Kokesh struck a similar note. “We’ve got to recognize that what we’re giving [the nominee] is incredibly valuable, [so] it has to be someone who we can trust with that, who’s going to use it to maximum impact, whose commitment to the cause is unquestionable,” the early runaway leader in the fundraising primary said. Also: “We need a different message. We need a fundamental shift from playing their game, making this about politics. It’s not. Freedom is about love, and ethics, and unity, and basic moral principles that unite us as a human family. When we put that forward, that’s how we’re going to win, not by playing their game.”

Hornberger, who was in the attendance, later criticized the debaters for not being hardcore enough about abolishing Medicare:

The debate moderator…asked a simple and direct but critically important question to each of the candidates: “What would you do with Medicare?”

If I had been included in the debate, [I] would have responded, without hesitation, with a simple three-word answer: “Repeal it immediately.”

Not one of the six candidates on stage answered in that way. All of their answers came in the form of some sort of reform, which, of course, leaves this socialist program intact.

In fairness to the other candidates, Armstrong did not answer the question directly, and Kokesh is campaigning on dissolving the federal government, which presumably would render Medicare a non-entity.

This is pretty much how the early nominating process has gone: candidates short on elected experience (Armstrong was to my knowledge the only such veteran on stage Saturday, with two stints on the Honolulu County Neighborhood Board) but long on libertarian activism, vying to more purely distill the party platform. (When asked to name the platform plank that made them most uncomfortable, five of the six candidates said there weren’t any. The one exception was Jo Jorgensen, the party’s 1996 vice presidential nominee, who suggested that the current pro-choice abortion language might be deleted so that it doesn’t “keep some people from even considering us.”)

In part, this focus on the salesmanship of first principles reflects available personnel and a jockeying for future position. If, say, Rep. Justin Amash (I–Mich.) were to enter the race, there will definitely be at least some market among the 1,000 or so party delegates who will choose the nominee next May for a message of “We cannot elect or nominate a former Republican…for the fourth cycle in a row.” That’s a direct quote from Kokesh, from a July debate in which all five candidates said they’d endorse each other before getting behind the most famous libertarian in Congress.

I also suspect that some of the reticence about going (in Ruff’s July words) “Republican light” stems from a lingering hostility toward Johnson’s running mate, former Republican Massachusetts governor and current Republican presidential challenger Bill Weld. Weld barely won a second-ballot vote at 2016’s Libertarian Party convention, and then he vouched for Hillary Clinton’s character on MSNBC a week before the election, and then he jumped ship for the GOP in January after having previously declared himself a “Libertarian for Life.”

It’s not necessarily that Libertarians feel jilted, though Weld had spent a year-plus prior to his latest party swap doing the spade work of endorsing Libertarian candidates, raising money, and even debating Rep. Thomas Massie (R–Ky.) in these very pages about whether the GOP is a hopeless vehicle for positive change. But there is a mixture of shame and resentment that someone with foreign policy views were perceived as interventionist was too freely given the job as vice-promoter of the Libertarian brand. (For a long argument on that subject, listen to September’s SoHo Forum debate between Libertarian National Committee Chair Nicholas Sarwark and comedian Dave Smith.)

Hornberger, notably, is a longtime antiwar activist. (See my 2011 interview with him on the topic.) The candidates at both forums I moderated were uniformly and enthusiastically in favor of bring the damn troops home now. (“If elected president,” Jorgensen said Saturday, “I would turn America into one giant Switzerland, armed and neutral, but enough forces to protect and defend American soil.”)

Even Ken Armstrong, a former NATO commander, said this when I asked him whether he was really ready to dissolve the North American Treaty Organization:

Well, NATO’s a treaty, and I believe in treaties and contracts between willing participants. I’m just not sure that the American people really know what they bought into with NATO. Yeah, honestly, I think that we need to back away from NATO. The only reason I believe we should stay in the United Nations, to tell you the truth, is because being a permanent member of the Security Council we get that precious veto on the Security Council, and I don’t think we want to give that up. But these global organizations are not globalist, they’re corporatist, and I think we need to get as far away from them as we can.

That is a far cry from where Bill Weld is at nowadays.

So it’s perhaps no surprise that when I asked the six candidates on stage to name a single declared presidential candidate from the two major parties that they would most welcome into the Libertarian Party, not one of them volunteered the party’s most recent vice presidential nominee. Instead, two of them (Armstrong and Ruff) chose antiwar fave Rep. Tulsi Gabbard (D–Hawaii). Jorgensen said Mark Sanford (“He’s libertarian at heart”), and the other three either joked or declined to state, though Kokesh had previously name-checked Gabbard as his “favorite socialist running for president.”

Will this uncompromising anti-war message and adherence to libertarian principle sell comparatively unknown candidates to an audience larger than the half-million or so registered Libertarian Party voters? Will any other big name actually jump in, given the seemingly unfavorable circumstances for third parties at this political moment? It’s too soon to know the answer to either question. Consider that Gary Johnson only announced his candidacy last time around in January 2016.

But the fundraising race so far is a far cry from the $12.2 million eventually compiled by Johnson/Weld. According to Federal Election Commission filings, as compiled on Wikipedia, Kokesh as of the end of the September far outpaced the field, with $201,000 compared to $34,000 for Behrman, $19,000 for Vermin Supreme, $13,000 for Armstrong, and $6,000 apiece for Jorgensen and Ruff. And the burn rate is close to 100 percent—the most cash any candidate reported as having on hand was Jorgensen’s $5,000.

When I asked the candidates how they expected to match the Johnson/Weld haul, perhaps the most honest answer came from the political satirist on stage.

“Well, that’s a pretty inconceivable amount of money, it’s a whole lot of money, it’s money I can’t even begin to imagine,” said Vermin Supreme. “So I would say, yeah, sure, of course I’m going to. We’re going to get fundraisers, and we’re going to crowdsource it, and we’re going to get like 12 million people to send me a dollar. So that’s going to happen; that’s a no-brainer, we’re going to make that quick. So yeah, definitely. We’re going to spend it, too.”

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