Monthly Archives: March 2013

GOP Consultant Rick Wilson: Time For Republicans To Move On From Same Sex Marriage Debate

Florida based GOP operative Rick Wilson apparently got into a bit of a squabble with Rush Limbaugh over Wilson’s comments to Politico that the GOP has lost on same sex marriage and needs to move on.

Here’s where the accusations of apostasy to the cause come from: I’m one of a non-trivial number of members of the hated consultant class who think digging in for Culture War 3.0 on gay marriage is politically foolish, culturally stupid and boneheaded electorally.

For the record, I agree with Wilson’s tactical advice. On policy, I’m fine with people voting to allow same sex marriages in their states (judicially imposed same sex marriage is a different story).

Where I disagree with Wilson and many others in the  GOP’s professional political class is what role they should have in setting the GOP agenda. I’m not looking for hills to die on but we need some to fight on, even if they are not easy or popular.

Professional political operatives care mostly about winning elections. This makes perfect sense since that’s what candidates pay them for. Activists however care about winning elections for a purpose, to generate  societal and political outcomes. For the former group, winning is an end in and of itself while for the latter it’s a means to something else. Now this isn’t to say professional operatives don’t have issues they care passionately about or would work for a candidate that they have real qualms about (though I’m sure some would) but  as Wilson himself says, their personal feelings aren’t why they are hired and shouldn’t color their advice to candidates.

Letting consultants guide the morality of the party is good for Republican office holders who care about winning and holding office and bad for people who care more about outcomes. Again, this isn’t a knock on the people who do politics for a living, it’s simply an acknowledgement of reality.

Wilson says in arguing for abandoning this fight, “Cultures change, and ours has. Ignoring reality isn’t principled: it’s pigheaded.” This is all true but it didn’t just happen organically. It happened because Democrats never say, “we lost, give it up forever and move on” as Wilson argues the GOP should do here. Sure there are tactical retreats by Democrats when they don’t have the votes but on the whole Democrats never tell liberals “give it up”. At worst they tell them, “wait”.

For example, Bill Clinton signed welfare reform (after multiple vetoes). Obviously after 15 years of it working, Democrats would never roll it back, would they?

HillaryCare went down in flames in the early 90s. Did the Democrats say, “sorry, guys we’re done. The numbers aren’t there. Never will be and if you keep insisting we as professionals fight this fight, we’re doomed”? ObamaCare suggests that they spent the intervening years fighting and fighting and fighting until they won.

Look at same sex marriage. It was an electoral loser everywhere it was tried (including California and New York!) until 2010. So clearly the Democrats just threw in the towel and acceded to the wishes of the voters as expressed in election after election? Apparently not.

And when liberals say, “Oh no, same sex marriage won’t lead to religious institutions being forced to accept or accommodate same sex couples” we can trust them, right? Oh. But they’ve always been so honest before. Oh. We’ll the left would never use their culture setting machine to push for polygamy. Oh. But they’ve always been so honest about this stuff before. Oh.

Wilson says the GOP should take a pass on fighting Culture War 3.0. Maybe he should tell that to the Democrats who never seem to get that memo or have any interest in stopping.

Another example is amnesty for illegal aliens (yes, it’s amnesty). The party has made it very clear by forcing pro-amnesty candidates McCain and Romney to the right on this issue that as a party voters are opposed to it. Yet without any evidence to support their electoral claims, the GOP professional class has decided to force the policy on the voters.

Again though, Wilson is right. The GOP can’t win these wars because as I’ve written before, it’s not designed to fight them.

Wilson says evangelicals who care about fighting against same sex marriage (but presumably it applies to other parts off the GOP/conservative coalition) “might want to spend some time changing hearts and minds in society at large before you bolt”. I agree with the first part but disagree with the second.

Conservatives of all stripes need to win more “hearts and minds”. We’re a minority in the GOP , let alone the country as a whole. My disagreement is with the order of things. Conservatives of all stripes need to bolt first. The Republican brand is tarnished beyond repair. A party that will stand for nothing but poll reading will never rally people to its ideas or change “hearts and minds”.

This won’t be easy or quick. Stepping back from electoral politics isn’t gong to be easy because in the short term it will likely lead to more Democrats winning. This isn’t a one or two cycle project. The left has been working on this project for 100 years or more. But the cost of “winning” with warmed over Democrats with an R after their name is getting too high. Every day we put off ditching the dead carcass that is the GOP is a day wasted.

The Prop 8 Decision And The Gulf Between The Legal Class And Citizens

This is a post I wrote back in August of 2010 when the Prop 8 decision was handed down in district court. Now that appeal is before the Supreme Court, I thought I’d repost it.

I actually read all 1 million pages of the decision (okay, it’s like 186 pages but trust me, it felt like a million). As I went on my rage grew at the contempt in which Judge Walker holds the process of a free people deciding the form their government will take, the plain meaning of words and social structures that have evolved over many centuries.

Let me start by saying this isn’t a complete take down of the decision and that I’m pretty much a lukewarm supported of same sex marriage. So long as it is freely and democratically instituted (or I used to be, more on that in a moment) I’m kind of ok with it.  What I am unalterably opposed to is judges imposing some new found right upon people or distorting the concept of marriage and the right of the people to define it, to suit an equal protection cause of action.

With that said, what struck me most about the decision is how eminently sensible it is from a legal standpoint and how divorced that standpoint is from the precepts of a republican form of government. Decisions like this are reached by judges finding facts and identifying/applying the relevant laws. Sounds easy in the abstract but how do judges do this and how do they do it in a theoretically consistent way? They use various “tests” which are often established by justices in Supreme Court cases.

In this case the Judge found that marriage was “a fundamental right” as part of the plaintiffs Due Process challenge. Once he made that determination he went on to examine if prohibiting same sex partners from exercising that right violated the Equal Protection Clause of the 14th Amendment.

This is where the famous 3 tiers of scrutiny come in. Since the judge found that “a fundamental right” (pg 109 of the decision) was at issue he was obligated to use the “Strict Scrutiny Standard”. This is the hardest one for the defenders of Prop 8 to win on because it requires

“The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest”

The easiest grounds for defenders of Prop 8 would have been the lowest threshold, the Rational Basis test.

“The government need only show that the challenged classification is rationally related to serving a legitimate state interest.”

The amazing thing about Walker’s decision is that while he recognized that to survive, Prop 8 would have to meet the Strict Scrutiny standard he said it didn’t even meet the lowest standard of ‘rational basis’ (pg 117 of the decision).

This is where the divorce between the legal priesthood and many people starts.

Just look at and unpack some of the assumptions that lawyers, judges and a lot of people simply accept, without question, to get to this outcome…laws have to be rational or related to a state interest, “voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough.” (page 24 of the decision)  and that judges and only judges, (not the legislature, not the executive, not the people) can decide if a given law meets these judicially manufactured standards.

When exactly did we decide that judges are the sole arbiter of what laws are ‘rational’? And by the way, when did we even agree that laws had to be ‘rational’ in the first place and that ‘legitimate state interests’ were required for a law to survive challenge?  What part of the Constitution requires these tests? What law authorizes them?

The short answer is, none. In fact the whole notion of this multi-layered scheme goes back to a Supreme Court decision from 1938. Well, not even a case really but a footnote in a decision.

A judicial footnote, written by one judge, in a case most people have never heard of (US v. Carolene Products) is the basis of the system we as a nation use to determine the Constitutionality of many of our laws.

Read the rest of this entry

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