In his article “Is Mitt Romney Truly a ‘Lesser Evil’?”, Gennady Stolyarov took issue with my contention that a Mitt Romney victory is preferable to another term for Barack Obama from a classical liberal standpoint.  In Part 1 I responded to Mr. Stolyarov’s arguments concerning the moral responsibility one might bear in supporting a bad candidate over a much worse candidate, a “lesser evil.”  Here I make a case that Romney and Obama certainly are not Tweedledum and Tweedledee: Mitt Romney is indeed a lesser evil compared with Barack Obama from a libertarian/classical liberal perspective.

I must emphasize at the outset that I am not arguing one should vote for Mr. Romney.  I am making a case that Romney is the lesser of the two major party evils, not that one must support him.  If in one’s judgment an abstention or perhaps a vote for another candidate, such as Gary Johnson, does more for liberty, then one should act accordingly.

However, I also think that our current political situation is quite precarious; if we confine our vision to the federal government and its policies, America is in an unusually dangerous position today, quite unlike anything I ever expected to see in my lifetime.  If current trends continue, I think there’s some not insignificant chance that the First and Second Amendments could soon have “dead letter” status – formally in effect but no longer valid nor enforced – and that the probability of this is much higher with a continuation of the Obama presidency.  I also think that America is on track for a fiscal and economic disaster unprecedented in modern history, and that the Romney-Ryan ticket is at least marginally superior to Obama-Biden in this regard.

I’ll address four areas in which I believe there are fundamental differences between Romney and Obama: 1. general vision, 2. health-care reform, 3. appointments to the Supreme Court, and 4. economic and fiscal issues.  I’ll close with a few qualifications that temper my argument.

1. General Vision:  This presidential election is not so much a choice between Mr. Romney and Mr. Obama as it is between two competing visions of the role of government.  Romney and Obama are both very poor standard bearers for this conflict of visions currently underway, but one would have to be oblivious to American politics of the past twelve years to miss the significance of this election.  There is, for a change, a real ideological difference.  On the one hand, there’s the progressive view that supposes the state is the fount from which all good things and all social advance flow (“You didn’t build that.”), and on the other, there’s the view that government is limited by the rights of the individual, and that most of civilization is built by free people acting in the market.

The progressive vision sees government intervention as the solution to every imaginable problem.  This was perhaps best stated recently in a Washington Post op-ed by E.J. Dionne.  There is no question that Obama and the Democratic Party represent the progressive-left view.  If they are sometimes loathe to admit it, it is simply because it is currently bad politics to do so – the Tea Party backlash was more than they’d bargained for.

Pitted against progressivism is the view that government must be restricted to certain limited functions.  American conservatives, for all their many and various flaws, do tend to understand this.  American voters outside the progressive/left camp certainly do, as the Tea Party arose out of anger over big government: government bailouts, exploding government debt, the general expansion of government in health care.  It was Ronald Reagan who observed that the “heart and soul of conservatism is libertarianism.”  Whether one agrees or not, it is certainly true that conservatives are far more skeptical of government than are progressives.  Currently the Republican Party is the party of skepticism about government.

It would be a simple thing to expose the many cases of Republican hypocrisy on these issues – I often do so myself.  But let me ask this question – which party – Democrat or Republican – is more likely to propose legislation containing more and more interventions, programs, entitlements, and social engineering?  If the reader is genuinely uncertain (I doubt most are), read the respective platforms of the parties (here for Democrat  and here for Republican). The first platform contains proposal upon proposal for expanding the role of government; the latter refers repeatedly to specifics about restricting overweening government.  No one is bound by a platform, but the platforms do give the vision, and these visions are fundamentally different.

Does this matter?  For an example, consider how the two parties have responded to the Citizens United decision.  Republicans have applauded it on free speech grounds.  Conversely, Nancy Pelosi and other Democratic legislators have introduced in Congress a constitutional amendment, the “People’s Rights Amendment,” that would effectively eliminate the First Amendment protections of freedom of speech and press.  As George Will put it in Washington Post, “By proposing his amendment, McGovern helpfully illuminates the lengths to which some liberals want to go. So when next you hear histrionic warnings about tea party or other conservative ‘extremism,’ try to think of anything on the right comparable to McGovern’s proposed vandalism of the Bill of Rights.”  (Or, I might add, try to find anything in the Democrats’ platform even mentioning any threat to free speech from our government.  It certainly contains nothing even vaguely rivaling the Republican denunciation of speech codes, Fairness Doctrine, McCain-Feingold, and other restrictions of free speech.)

As another example, consider the right of the individual to keep and bear arms, and the protection of it by Second Amendment.  Republicans are supportive of this, while Democrats generally oppose it.  The Republican platform specifically defends the inherent individual right to keep and bear arms, applauds Heller, and explicitly opposes new gun controls, including the “Assault Weapons Ban.”  The Democrats relegate the right to “an American tradition” and imply it is created by the Second Amendment.  They then call for new gun controls and further restrictions on ownership.  If the Democrats should, at some point, manage to gain control of both houses of Congress and pass a new, more draconian “Assault Weapons Ban” or legislation to “close the gun show loophole” [i] as they promise, who is more likely to veto it – Romney or Obama?  For that matter, we already know that Obama has sought gun controls under the table by supporting U.N. negotiations for a treaty that would regulate and restrict private firearm ownership.  President Obama is more hostile to our rights to arms ownership and to self defense than any other president in history.  Romney’s record in Massachusetts was poor; he signed a state version of the AWB.  But unlike Obama, he has not argued in favor of banning all private ownership of handguns, all private ownership of semi-automatic weapons, civilian concealed carry permits, and outlawing self-defense.  As his base is generally very strongly opposed to an AWB, it is hard to believe he would betray them on this hot-button issue.

Again, it’s not that the Republicans are libertarian – they are far from it.  It is rather that the Democratic Party has gone so far to the left that they are the greater threat to liberty.  They would willingly destroy both the First and Second Amendments.  They’ve sponsored legislation to do it.  Without these two amendments it’s hard to see what checks at all we’d have on government.  It is the Democrats’ progressive vision that is the greater threat to liberty currently.  Romney might be a weak reed, but he’s at least on the side that opposes this progressive vision, and a President Romney would be beholden to his more conservative, anti-big government constituency.

2. Health-Care Reform:  Here’s a good application of my above argument.  The PPACA (a.k.a. Obamacare) is a terribly flawed approach to health-care reform.  It reduces, rather than increases, consumer choice.  It increases, rather than reduces, government interference in the health-care sector.  It will prove to be fiscally irresponsible and is likely to reduce the quality of health care.  If the Republicans manage to hold both houses of Congress, they will almost certainly repeal it.  (The Senate can do so even with a bare majority if Republicans are willing to end the filibuster, something legal scholars across the political spectrum have suggested is reasonable.)  A President Obama would surely veto a repeal.  A President Romney would sign it.

This would likely be the only chance we will have to get rid of this bad legislation, for the longer it stays in place, the more firmly it will be entrenched, with more special interests defending it.  On the other hand, if Republicans fail to repeal the bill, Romney would be far more likely to temper and slow the implementation of PPACA than Obama would.

Mr. Stolyarov has suggested Mitt Romney would veto a repeal because of similarities between the PPACA and the Massachusetts reform, but this makes little sense for two reasons.  First, the PPACA is much hated by the Republican base (for that matter the majority of Americans dislike it).  A repeal would be extremely popular.  It’s simply incredible to think that a President Romney would defy his party and practically 100% of his supporters in order to save Barack Obama’s hallmark program.  I can’t imagine anything else he could do that would make him more likely to lose the GOP nomination in 2016.

Second, it’s not clear that Romneycare and Obamacare really are the same thing, despite a similar basic framework.  The Massachusetts bill signed by Romney was different from that which was implemented.  Romney used his line item veto on a number of the more draconian parts of the bill.  The Democratic legislature overrode these vetoes, and the bill was implemented by a Democratic governor who further altered it.  Furthermore, at the time Romney signed the bill, the situation in Massachusetts insurance markets was far worse than perhaps anywhere else in the United States.  In this context, Romneycare – at least Romney’s version of it – was arguably an improvement over the status quo in Massachusetts.  Thus when Romney argues that the reform might have been right for Massachusetts but not for America in general, he’s not necessarily being disingenuous.  In short, it’s hard to believe that Romney is not key to any chance of repealing the PPACA and not superior to Obama on health-care reform.

3. Supreme Court Appointments: The next president will likely make as many as three appointments to the Supreme Court.  Whoever is president in the next four years will very likely have the chance to change fundamentally the makeup of the Supreme Court.  This might be the single most important reason for preferring Romney to Obama.

Obama and his party are closely associated with the new “democratic constitutionalism” movement in legal theory.  This movement seeks to “take back” the Constitution from “conservatives” and make it once again a “living” document, i.e. one without fixed meaning, permitting progressive politicians and judges to interpret it however they wish to favor their political agendas.  One common doctrine in this thinking is that the distinction between negative rights and “positive” rights is essentially meaningless, and one person’s “right” (to health care, housing, and whatnot) creates a similar obligation on others to provide it.  It’s unclear to me what sort of society would result from consistent application of this doctrine that replaces genuine rights with entitlements, but it would not be a free society, nor would it have a functioning economy.

Conversely, there’s also been a new interest in federalism in legal thought (it’s to this that the democratic constitutionalists are reacting) which favors strict Constitutional interpretation, separation of powers, strict limits on governmental powers, and the idea that individual rights are imprescriptable, rather than gifts from the state.  The movement has both conservative and libertarian aspects, and is in many respects libertarian.  Needless to say, Republicans are more closely associated with this movement than are Democrats.

If Obama selects nominees for the Supreme Court, it is likely that we’ll have justices who are in line with “democratic constitutionalism,” and with the notion that our Constititutional rights should not be considered “absolute” sense, but rather subject to international norms.  Romney is unlikely to draw from this crowd, and far more likely to draw from judges with at least some sympathy for the new federalism.

Ilya Somin of Volokh Conspiracy is worth quoting at length on this issue: “Republican judges are far from uniformly good on libertarian issues. But the Democratic ones are overwhelmingly bad. Moreover, cases such as Kelo and the individual mandate decision have sensitized conservatives to the importance of appointing judges committed to federalism and property rights. That reduces the chance that future GOP nominees will waffle on these issues, as some past ones have.”

“[Also] the younger generation of conservative jurists and legal scholars have been significantly influenced by libertarian thought on many issues. This is far less true of their liberal equivalents. Whether you choose to blame liberals for this situation or libertarians, it’s a crucial point. Other things equal, a party’s judicial nominees tend to reflect the dominant schools of thought among its legal elites.”

On this issue, it’s simply absurd to imagine that Obama and Romney are equal from a libertarian standpoint.  They are not.  Obama is far, far worse.

4. Economic and Fiscal Issues: On economic issues, neither Romney nor Obama is very good from a free market perspective.  But they are not equally bad.  Obama has a much stronger preference for activist regulation, including environmental regulations, health care regulations, labor regulations, and financial regulation.  Obama also is more likely to favor targeted subsidies to special interests – green energy for example.  Conversely, Romney is more likely to rein in regulatory agencies such as EPA, and less likely to favor extensive regulation.  Mr. Stolyarov suggests that Romney is anti-entrepreneur in practice, but it is small entrepreneurs who are most hurt by regulation.  Large established firms have teams of lawyers and accountants and frequently can benefit from gaming the rules; in practice, Obama is a greater threat to entrepreneurship.

On fiscal issues, I think Romney is at least marginally better than Obama.  Neither has any real plan to actually reduce spending.  But Romney and Ryan have been willing to put forward the idea that entitlement programs as they exist are unsustainable and must be radically restructured.  Obama assures us this won’t happen.  Yet it will.  Our entitlement programs are unsustainable and will be cut – it is simply a matter of whether we plan to make these cuts now, rationally, in such a way as to minimize economic disruption, or whether we wait until economic crisis forces the cuts, resulting in economic shock and great disruption.  On this matter I give a slight edge to Romney… although if Obama is reelected and then begins following a more “Republicanlike” path, it would not shock me – the unsustainability of entitlements is not in dispute, except in campaign rhetoric.

On taxation, the fiscal crisis will almost certainly lead anyone in office to seek more revenues.  Obama has stated a clear preference for increases in marginal rates on higher income earners, higher corporate taxes, and an increasing number of tax breaks, this last for purposes of social engineering (a.k.a. buying votes).  Romney has endorsed a reduction in marginal rates and a broadening on the base by eliminating deductions and exemptions.  The latter approach reduces the economic distortions of taxation and also returns it to the purpose of collecting revenue, rather than shaping citizens’ behavior to match politicians’ goals.  Again, Romney is preferable to Obama on this issue.  I fear it might already be too late for the United States to avert a sovereign debt crisis, and the record of politicians from both parties of fiscal responsibility is dismal.  But the approach Romney has laid out it preferable to Obama’s.

So there it is.  I am not a fan of Romney, nor of the Republican Party in general.  But after looking at these four areas, I think it’s clear that Romney is certainly the lesser of two evils compared to another four years of Barack Obama.  It should also be clear why I think the current political situation is dangerous.  Eight years of Bush ’43 followed by four years of Obama have empowered the federal government and put us well on the road to an authoritarian “soft despotism.”  If current political trends are not checked by some countering force, the near and medium future look rather bleak.  If a Romney victory would simply slow the trend and thus buy time for countering forces to take effect, that would make Romney the lesser of two evils.  With either candidate, the immediate political future will be a mess at best, but the mess will be much worse with Obama.

I’ll close with three caveats.  First, unless one votes in a swing district in a swing state, none of this matters anyway since one’s vote does not matter.  Second, it’s been observed that sometimes a politician from political party A finds it easier to pursue party B’s platform than politicians from party B do, because he faces little opposition from within his own party when he does.  Perhaps a second-term Obama will do the opposite of what I suggest above.  I have little reason to believe he would, but cannot rule it out.  The same might occur with Romney, although I suspect his interest in a second term precludes this.  Finally, Mr. Stolyarov notes that a vote for Gary Johnson “could be seen as a social statement, rather than a purely electoral one,” and signal increasing support for libertarian ideas.  In Part 1 I suggested that perhaps there is some merit in Mr. Stolyarov’s “strategic argument,” that voting for a third-party candidate who proves to be a spoiler might send a message to political parties; his “social statement” argument further strengthens this case.  (It is not clear, by the way, whose voters Gary Johnson “steals;” I know one erstwhile Obama supporter who is voting for Johnson as the only anti-war candidate.  I understand some polls suggest this phenomenon may cost Obama Nevada.)  Particularly given the shameful way the GOP treated Gary Johnson, Ron Paul, and its more libertarian members, it certainly deserves a comeuppance.  However, this seems to me an issue separate from whether Mitt Romney is the lesser evil.

I could say more, but this is sufficient.  I thank Mr. Stolyarov for the opportunity to make my case, and look forward to his responses.