[Editor: We received this as a comment, but it is long enough, well-thought-out enough, and important enough that we are elevating this comment to the status of a full post.]
Opinion Post by Bob:
While I can respect the desire for judicial restraint in the majority opinion, their interpretation is so vapid and toothless that it would leave the LNC to run amok in virtually any direction without guide rail or consequence. Let’s analyze this ruling in more detail and a potential long-term solution.
“Judicial bodies are properly instituted not to make policy or rules or decisions based on a particular desired outcome or the weight of support on one side or the other, but merely to consider, dispassionately and to the best of their abilities, how the rules created by those who are properly empowered to do so apply to the facts of each case.”
“The role of the Judicial Committee is not to supplant the judgment of the LNC with its own, no matter how strongly we may feel, but merely to decide whether the decision to enter into the agreement in question is in violation of the Bylaws. Any usurpation on our part of the policy role of the LNC would justify ire and complaint on the part of the membership for having usurped their authority to influence policy through their elected representatives.”
The majority opinion is correct that the LNC is the principal policy-making body of the national party, and questioning its subjective decisions is not in the purview of the JC. It is, however, the purview of the JC to interpret and apply the Bylaws according to the common public meaning intended by the members and delegates, as the above quote itself acknowledges.
“With regard to whether the terms or operation of the agreement are illegal, the Judicial Committee does not sit as attorneys or experts on the law, merely as experts on the Party Bylaws. As such, it is equally dependent as the LNC on the advice of counsel in those areas, and absent malicious intent on the part of the LNC, cannot assume a superior competence to judge the legality or legal risk of any particular course of action.”
It may be true that the JC itself does not sit as an expert on law, but several members of this JC are actual attorneys, including individuals who signed off on this very opinion. They claim to defer to the LNC for the advice of counsel, but McArdle did not provide any actual evidence that counsel did approve of the specific plan, or even who those counsel were other than the party’s normal GC.
And how can a body with several attorneys, whose sole role it is to adjudicate complex matters like this one and serve as an impartial arbiter and check on the power of the LNC, then claim that they depend on and defer to the LNC?
It is also interesting that while claiming to be experts on the Bylaws, their opinion is very light, or dare I say entirely absent, on evidence from the historical interpretation and application of the Bylaws.
“To supplant our judgment for theirs, especially given their far superior position to weigh the issues, would be a monumentally antidemocratic exercise in untrammeled hubris.”
This is misdirection. Could not the same then be said that there is no need for an independent judiciary at all, because the executive or legislative power is in a far superior position to weigh the issues? The several attorneys on the JC who signed this opinion seem to be making a case for their own professional obsolescence.
“Moreover, even absolutely determinative evidence the agreement does violate the law would not, without more, provide a basis to overturn it. Robert’s Rules of Order, which are adopted by the Bylaws in Article 16, do not preclude or prohibit a decision-making body from passing an illegal motion or engaging in illegal activity, nor do the Bylaws explicitly.”
The Bylaws do instruct the Treasurer to follow federal and state law, which is therefore incorporated by reference just as much as Robert’s. The ethical validity of the election laws, a point raised by multiple individuals in their comments and by members of the JC themselves, is what is moot. We can agree that the election laws are improper, but even the Bylaws explicitly instruct that the Party needs to play within the lines, even if only for practical purposes.
“While intentionally engaging in unlawful activity might well call into question the sincerity and intent to promote the interests of the Party, the mere fact of illegality without more would not be sufficient.”
The JC, which sits as the final arbiter of the third largest political party in the United States, an organization that is fundamentally and intrinsically linked with the Federal Election Code, disclaims an ability to make any determination on those matters, yet somehow finds itself qualified to judge subjective intent and malice?
“Nevertheless, the evidence put forward is insufficient to determine with reasonable certainty that the agreement in question will actually produce that synergistic effect, even if such effect may be desired or intended by some members of the LNC, or that such blurring will actually occur.”
It is the job of the JC to make this determination. Documentation provided by a whistleblower to Third Party Watch a day before the ruling came down definitively proves that the LNC contracted itself to spend money in direct support of the Kennedy presidential campaign. No reasonable interpretation whatsoever could view this as the Party functioning as “distinct” from the Kennedy campaign any more than if it were actively spending money in support of Donald Trump or Kamala Harris.
“At minimum, the requirement to “provide full support” requires the LNC to consider the impact on the Party’s nominees, whether direct or indirect, of every decision, and to refrain from engaging in any action reasonably expected to result in net harm over benefit. Conversely, so long as the LNC confines itself to decisions that result in a net benefit or have no impact on its nominees, it cannot fairly be judged to have failed to “provide full support” lest a charge be warranted of judicial overreach into the heart and prerogative of the LNC.”
This is correct, but the application is entirely amiss insofar as the majority of the LNC has displayed apathy, passive-aggressive behavior, or even open hostility to the Oliver-ter Maat campaign, and has provided no reasonable basis for believing that the proceeds would be spent in any material way on furthering the Oliver-ter Maat campaign. In fact, they have provided ample evidence that their primary intent is to bail themselves out of the financial hole they created through their own incompetence and poor management.
High on the list for Bylaws amendments moved from the floor in 2026 (because it surely won’t pass this LNC’s hand-picked Bylaws committee) should be the abolition of the Judicial Committee and its replacement with direct member initiative to void LNC decisions. The thresholds needed to submit a JC appeal today could simply become those needed to call a vote of the national membership, who could then void the LNC’s decisions by a majority. Instead of a JC, a new four-year term elected position could be created of Member’s Advocate, who should hold no other office, role, or committee seat in the national party and be at least 2 years removed from any such role, and whose sole job it is to administer any such member initiative votes independently of the LNC.
To borrow from our dear friend Mr. Spooner, either the Judicial Committee has deliberately entered into cahoots with the LNC to subvert the very heart and soul of the Libertarian Party, or has been powerless or unwilling to stop it. In either case, it is unfit to exist.
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