Author Archives: Doug Mataconis

The Intellectual Absurdity Of Libertarian-Conservative Fusionism

The libertarian movement finds itself immersed once again in a debate over strategy and where, exactly libertarianism fits in to the American political milieu. Specifically, I’m referring to the ongoing debate about “fusionism” that is perhaps best typified by the May 2013 exchange of essays over at Cato Unbound, which I recommend that everyone who is concerned about the future of what some people have started to call “the liberty movement” read. In it’s most basic form, fusionism refers to the idea that libertarians ought to ally themselves with the conservatives as a way of advancing their ideas. Implicit in this position is the idea that libertarians and conservatives have enough ideas in common to form a coherent political alliance, and that the differences are minor enough that the political alliance can be maintained without one side being subsumed into the other and rendered a virtual nullity.  Most specifically, I would argue that this is the danger that libertarians face in any alliance with a conservative movement that is far more numerous and political powerful, and one of the many reason why any argument in favor of fusionism should be viewed with deep skepticism.

The most important thing to remember in dealing with the entire fusionism debate is that, contrary to Ronald Reagan’s famous quote in a 1975 interview with Reason Magazine that “the very heart of  conservatism is libertarianism,” there are and always have been significant differences between conservatives and libertarians when it comes to basic political philosophy.Where conservatives place significant value in the preservation of “tradition” and generally stand against the idea of radical change, libertarians generally advocate a political philosophy that stands in direct challenge to the status quo, rejects the idea of tradition for tradition’s sake, and emphasizes the primacy of the individual over the group, whether that group be the “traditional family,” the church, or the state. On some level it’s hard to see how conservatives and libertarians can be compatible with each other on any level given their significant core differences.

Even getting beyond the core differences, though, the similarities between conservatives and libertarians are far less obvious than might seem at first glance. For example, it is often stated that libertarianism is basically a mixture of “fiscal conservatism and social liberalism,” meaning that libertarianism is a blend of conservative economic policy and “liberal” social policy on issues such as personal freedom. However, as Jeremy Kolassa pointed out in his initial essay during May’s Cato Unbound debate, there are significant differences between libertarian and conservative views on economics and government fiscal policy:

[W]hat about economics? Surely we can agree with conservatives there. But let’s be honest, Jonah Goldberg was incorrect in saying that Friedman, Hayek, et. al were the Mount Rushmore of conservative economics. Conservative economics is more aptly described by the term “trickle down”: By giving tax breaks and subsidies to corporations and those at the top, the wealth will flow downward and lift the boats of those at the bottom. But that is not increasing freedom or limiting government, it is merely tilting society in the direction of one group rather than another.

That’s not libertarian. A libertarian economic policy would be to eliminate all the subsidies given to businesses, give the tax breaks to everybody, and knock down the barriers that prevent newcomers from setting up businesses. Libertarianism is universalist, not top-down.

This highlights the major difference between “libertarian” and “conservative” economics. Libertarians are pro-capitalism. Conservatives are pro-business. While they sound similar, these ideas are emphatically not the same and never could be. Through the means of creative destruction, capitalism frequently tears down and destroys established businesses. Conservatism, however, in its quest to maintain the status quo, steps in to prevent this. The best example? 2007. If conservatives were truly pro-market, they would have never passed TARP, but they did and bailed out the banks. That’s a conservative, not a libertarian, economic policy.

If conservatives and libertarians can’t even really agree on economic policy, then where’s the basis for the alliance?

Perhaps my biggest problem with fusionism in its current incarnation, however, is the extent to which it demands that libertarians silence their criticism of their so-called conservative allies in the name of “unity.” Even if one accepts the argument that libertarians and conservatives are on the same side when it comes to economics, there is no denying that there are significant differences between the two sides on many issues. The most obvious, of course, are social issues such as gay marriage, the drug war, pornography, and, for some but not all libertarians, abortion rights. In addition to that, it’s generally the case that libertarians have a far more restrained view of what proper American foreign policy should be than conservatives do, even in today’s era where conservatives suddenly seem to have become anti-war when the war is being led by Barack Obama. Based on those differences alone, the idea that libertarians and conservatives are just two sides of the same coin is clearly false.

So, this leads us to the inherent flaw of modern fusionism. People who consider them libertarians are expected to join conservatives in their vehement, and often insane when expressed by people like Michele Bachmann and Allan West, criticisms of the left, and they are also expected to keep their mouths shut when it comes to criticism of their so-called conservative allies when they advocate policies that clearly violate libertarian principles. That’s not an alliance, it’s surrender. If libertarians stay silent while conservatives continue to push continually absurd arguments against marriage equality that advance hateful and bigoted stereotypes about homosexuals, for example, then they are essentially abandoning their principles in favor of short-term, and likely quixotic, political gain. There is no value in keeping your mouth shut just so you can be part of the political “Cool Kids Club.”

None of what I’ve said here should be taken as a rejection of the idea that libertarians should reject the idea of temporary alliances with people on the right to advance specific issues. There are plenty of such issues where conservatives and libertarians can find common ground to push through policies and make progress on the local, state, and federal levels, and coalitions have always been a part of politics in the United States.  However, there’s a difference between coalitions and surrender, and it’s clear to me that fusionism demands nothing more than abject surrender from libertarians and expects them to become little more than the lapdogs of conservatives. Well, we’ve tried that one before, my friends, and it didn’t work. We’d be foolish to try it again.

On a final note, I’d like to note that conservatives aren’t the only ones at fault here. One of the major problems with libertarianism is that, in many ways, it is not a coherent philosophy but rather a hodgepodge of different philosophies that have united under the banner of libertarianism. Among our ranks there are minarchists, Hayekians, the Mises crowd, fans of Milton Friedman, utilitarians, Christian libertarians, anarchists, and anarcho-capitalists. Given that the general principles of libertarianism are still very much in the minority in the United States, perhaps its inevitable that people who clearly have their own deep philosophical differences. However, the lack of a core philosophy is, arguably, one of the biggest weaknesses of libertarianism. I intend to address that issue in a future post.

Ron Paul’s Farewell Speech

When the 112th Congress comes to an end, it will also mark an end to the political career of Ron Paul, who represented the 22nd Congressional District in Texas from 1979 to 1985 (after serving a one term stint from 1976 to 1977) and the 14th Congressional District from 1997 through 2012. I’ve had made disagreements with Ron Paul over the years, specifically involving his ties to people like Lew Rockwell and the unfortunate history surrounding the newsletter he published during the years that he was absent from Congress. However, he’s also the first person I ever voted for as a Presidential candidate way back in 1988 when he was the Libertarian Parry’s candidate in 1988. Despite his faults, he was always a steadfast advocate for individual liberty and limited government at home, and a restrained foreign policy abroad, both of which are things I support wholeheartedly.

Thankfully, the fact that he’s leaving Congress doesn’t mean that the voice of liberty has been silenced on Capitol Hill. There are others who have already taken up the cause, such as Michigan Congressman Justin Amash, just elected to his second term last week, and, of course Senator Rand Paul. One can hope that their caucus becomes larger in the years to come.

Here’s Congressman Paul’s speech. It lasts nearly an hour, but it’s well worth listening to:

Supreme Court Upholds Affordable Care Act

As Quincy notes below, the Supreme Court upheld the Constitutionality of the Affordable Care Act today by relying upon an argument that most people had not been paying attention to:

WASHINGTON — The Supreme Court on Thursday left standing the basic provisions of the health care overhaul, ruling that the government may use its taxation powers to push people to buy health insurance.

The narrowly delineated decision was a victory for President Obama and Congressional Democrats, with a 5-to-4 majority, including the conservative chief justice, John G. Roberts Jr., affirming the central legislative pillar of Mr. Obama’s presidency.

Chief Justice Roberts, the author of the majority opinion, surprised observers by joining the court’s four more liberal members in the key finding and becoming the swing vote. Justices Anthony Kennedy, frequently the swing vote, joined three more conservative members in a dissent and read a statement in court that the minority viewed the law as “invalid in its entirety.”

The decision did significantly restrict one major portion of the law: the expansion of Medicaid, the government health-insurance program for low-income and sick people, giving states more flexibility.

The case is seen as the most significant before the court since Bush v. Gore ruling, which decided the 2000 presidential election.

In addition to its political reverberations, the decision allows sweeping policy changes affecting one of the largest and fastest-growing sectors of the economy, touching nearly everyone from the cradle to the grave.

The political fight over health care remains far from over, with Republicans campaigning on a promise to repeal the law, which they see as an unaffordable infringement on the rights of individuals. The presumptive Republican presidential nominee, Mitt Romney, has promised to undo it if elected.

Chief Justice Roberts wrote that the decision offers no endorsement of the law’s wisdom, and that letting it survive reflects “a general reticence to invalidate the acts of the nation’s elected leaders.”

“It is not our job to protect the people from the consequences of their political choices,” he wrote.

The court’s ruling is a crucial milestone for the law, allowing almost all of its far-reaching changes to roll forward. Several of its notable provisions have already taken hold in the past two years, and more are imminent. Ultimately, it is intended to end the United States’ status as the only rich country with large numbers of uninsured people, by expanding both the private market and Medicaid.

The key provision that 26 states opposing the law had challenged – popularly known as the individual mandate – requires virtually all citizens to buy health insurance meeting minimum federal standards, or to pay a penalty if they refuse.

Many conservatives considered the mandate unconstitutional under the commerce clause, arguing that if the federal government could compel people to buy health insurance, it could compel them to buy almost anything — even broccoli, the archetypal example debated during the oral arguments three months ago.

In a complex decision, the court found that Congress’ powers to regulate commerce did not justify the mandate. But it reasoned that the penalty, to be collected by the Internal Revenue Service starting in 2015, is a tax and is not unconstitutional.

Chief Justice Roberts, in the majority, said that the mandate was unconstitutional under the Constitution’s commerce clause. But that did not matter if the penalty that enforces it was constitutional on other grounds.

The court’s four liberals made it clear that they disagreed with the Chief Justice’s view of the commerce clause, but joined him because the effect of his ruling was to let the law stand.

The Obama administration had said in court in 2010 that the mandate could be upheld under the taxation powers, which they called even more sweeping than the federal power to regulate interstate commerce.

The outcome, I think, is striking many people as a surprise for two reasons.

First of all, if there was any Justice on the Court who seemed likely to be the fifth vote along with the Court’s four liberal members to uphold the ACA, it would be Justice Kennedy. Indeed, after the end of three days of oral argument in March it had seemed as though Roberts was largely in line with Justices Scalia and Alito (and Thomas) in being skeptical of the mandate’s Constitutionality while Justice Kennedy was the one who seemed to be trying to find way to uphold the mandate. One thing this teaches us is that most predictions you hear about the Supreme Court are usually just wild guesses, and that you can’t always determine how a case is going to turn out based on the oral arguments. In the end, rather than Kennedy being the deciding vote in this case, it was Chief Justice Roberts who sided with the Justices Ginsburg, Breyer, Sotomayor, and Kagan to uphold the signature domestic legislation of a Democratic President who has, in the past been critical of many of the Court’s rulings under Roberts.

The second reason this is a surprise is the fact that it was the tax argument that ended up being the basis upon which the law was upheld. For the past two years, nearly all the discussion about the legal merits of the ACA have centered around the question of whether it could stand as a proper application of Congress’s power under the Interstate Commerce Clause. There was a side argument being advanced on behalf of the government in the ensuing litigation that argued that the mandate could also be upheld under the taxing power, but it generally didn’t get much attention from the media or those who were actively engaged in the fight against the law. More importantly, none of the Federal Courts that heard the challenges to the law before it got to the Supreme Court adopted the tax argument as a reason for sustaining the law. Some of those Courts explicitly rejected the argument, while others simply stated that they did not need to rule on the arguments because they found the mandate constitutional under the Commerce Clause. Additionally, at the Supreme Court arguments in March, the lawyers and Justices spent far more time talking about the Commerce Clause arguments than the tax argument. To a large degree, that argument had been filed away and largely forgotten. But, as we see today, not completely forgotten.

It was Law Professor Jack Balkin who first advanced the  argument that the mandate was Constitutional precisely because it was a tax:

he individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance.


The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.

The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior, like a tax on businesses that don’t install anti-pollution equipment.

Many important and popular government programs are based Congress’s ability to give incentives through taxation and redistribute tax revenues for public purposes. To strike down the individual mandate the Supreme Court would have to undermine many years of precedents justifying these programs that stretch back to the New Deal (and in the case of the rules for direct taxes, to the very founding of the country).

Many dismissed Balkin’s argument but it was clear even when he wrote that back in March 2010, shortly after the law had been passed by Congress, that if the Court accepted it then the entire argument against the mandate specifically and the law in general would crumble into dust. And, that is exactly what has happened today.

We’ll be spending much time arguing the political ramifications of this decision, but it’s fair to see that this is now what most people were expecting. For the past two weeks or so, and indeed ever since the arguments in March, the left has seemingly been preparing itself for the likelihood that they would lose the mandate, if not the entire law. I didn’t see very much of this on the right, but now they’ll have to deal with the fact that they legal arguments they had been rallying around for two years have been rejected, and that if the ACA is going to be repealed it will have to be done by Congress. Given the fact that it’s very unlikely that Republicans will get 60 votes in the Senate any time soon, it strikes me that this is quite unlikely to happen.

Gary Johnson: “Be Libertarian With Me”

Gary Johnson’s Presidential campaign has released a new web ad, and it may be their most effective to date:

Johnson has managed to get some top-notch political advisers behind him, and he has experience running for office in somewhat hostile territory so things seem to be going well for him right now. The question is whether they’ll be able to make a credible enough case

Libertarian Party Nominates Gary Johnson For President

The Libertarian Party held its convention over the weekend in Las Vegas and, as many had been expecting, overwhelmingly nominated former New Mexico Governor Gary Johnson as their Presidential nominee:

Aside from the muscular gentleman in the slinky party skirt and halter top, a delegate wearing a Guy Fawkes mask and a prominent speaker sporting a powdered wig, it was a typical political convention.

And by the time the Libertarian National Convention concluded in Las Vegas on Saturday, party members had the man they hope can propel them to relevance in presidential politics.

Former New Mexico Gov. Gary Johnson won about 70 percent of the vote on more than 600 ballots, finishing well ahead of Libertarian newsletter founder Lee Wrights.

What it means is Johnson, a former Republican who served two terms as governor from 1995 to 2003, will carry the party’s torch in a campaign against Democratic incumbent President Barack Obama and presumptive Republican nominee Mitt Romney.

Johnson says a “pie-in-the-sky” goal for himself and vice presidential candidate Jim Gray, an Orange County, Calif., Superior Court judge and outspoken critic of the war on drugs, is to generate enough support to qualify for debates on the same stage as Obama and Romney.

“If that happens, anything is possible,” Johnson said. “I don’t think either Obama or Romney are talking about solutions to the problems.”

He’s betting a swell of supporters for Republican presidential candidate Ron Paul will shift to the Libertarian candidates once Romney becomes the nominee.

“As much as I would like (Paul) to be the nominee, I don’t think that is going to happen,” Johnson said.

Johnson is right about that point, of course. Ron Paul is not going to be the Republican nominee, and even the apparent delegate wins his supporters are racking up at state party conventions in caucus states aren’t going to amount to much of anything in the end. So Paul’s supporters will have a choice, either they support Johnson, they become loyal Republicans and back Romney, or they stay home on Election Day. Johnson is obviously hoping they they choose the first option.

This is the second time in two election cycles that the Libertarian Party has nominated a former Republican elected official as their nominee. Last time, of course, it was former Georgia Congressman Bob Barr and while the results of his campaign were disappointing, Barr did end up getting more votes than any Libertarian Party Presidential nominee since Ed Clark got close to a million votes in 1980. Can Johnson get close to that? Conor Friedersdorf makes a good point in that regard:

A former governor of New Mexico, he was re-elected by that state’s voters, left office popular after two terms, and therefore has the most executive experience of any Libertarian Party presidential nominee. He can also cite the state he ran as evidence that nothing radical happens when he’s put in charge. An economic conservative and social liberal, he represents a new direction for a party that has long wrestled with its paleo-libertarian wing. And yet he too is certain to lose on Election Day, as third-party candidates in American presidential elections do. The question is whether he can match his party’s 1980 high-water mark and win 1 percent or more of the vote, and whether he might win even more in the key swing state of New Mexico, where voters already know and have cast ballots for him.

That would certainly make things interesting wouldn’t it? If Johnson ended up costing the GOP a pick-up in New Mexico, then maybe they’ll stop ignoring the libertarian vote for once.

To be realistic, though, the prospects for third-party candidates are never good and they’re unlikely to be much better. Perhaps the greatest role that Johnson can fulfill with this campaign is to become a strong and effective spokesperson for libertarian ideas around the nation, and to stand as proof that you can indeed by an ideological libertarian and govern effectively. That would be no small accomplishment.

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