Friday, May 21, 2010

Tap Dancing into the Senate

-- Posted by Neil H. Buchanan

In my most recent FindLaw column, I discuss the claims that laws designed to change the way people eat (mandating less salt, lower fat, clearer labeling, etc.) are a violation of freedom of choice. I argue that they are not, essentially by extending the argument that there is no meaningful "no government" baseline that allows people to say, "But for the government, this is what would happen." Even more than in other areas of policy, such as tax law, it is simply bizarre to try to imagine a "state of nature" in which the government plays no role in shaping our food choices. Unsurprisingly, however, food lobbyists have insisted on describing such laws as being an overreach by the "food police."

The column is available here, and I certainly do hope that people will read it. Normally, I would devote this entire post to discussing an issue related to the column. Here, however, I will diverge from the usual pattern and will, instead, discuss one of the most fascinating interviews that I have seen in a long, long time. Many readers will probably have heard by now about the interview on "The Rachel Maddow Show" this past Wednesday evening with newly-nominated U.S. Senate candidate Rand Paul, a political neophyte who is the son of Rep. Ron Paul of Texas and a favorite of the Tea Party people. The interview is available here (preceded by commercials). It is twenty minutes long, with no breaks -- apparently not by design, but because the interview simply took on a life of its own. I strongly encourage readers to view it now, before reading further. In fact, if you have a choice of viewing the interview or reading the rest of this post (along with whatever else one might do with the rest of those twenty minutes), there is no question that you should watch the video.

The headline coming out of the interview truly is astonishing. Paul, who had given two interviews in the past month (including one earlier on Wednesday) had taken the position that the "public accommodations" provision (Title II) of the Civil Rights Act of 1964 is a violation of people's freedom. The public accommodation provision of that law, of course, made it illegal for any business that is open to the public to exclude people on the basis of race and other impermissible factors. It is the law, in other words, that makes it illegal for a business to say "whites only," or "Christians only," or "U.S.-born only."

Paul had taken the position during an interview with a Lexington KY newspaper's editorial board that Title II should not have become law. The issue came up in an NPR interview before Maddow's show as well. Maddow showed clips of those interviews before she began her interview with Paul, and she began by asking him about his stand on this issue. What ensued was riveting, gut-wrenching political drama of the highest order. Even though Paul had made it clear that he had a problem with Title II, he ducked and evaded like an experienced politician. Maddow, who has a well-earned reputation as an extremely respectful -- but very persistent -- interviewer, spent almost the entire 20 minutes simply trying to get him to say in clear language what he had already said without quite saying in one sound bite: Businesses should be allowed to exclude people from their private property on the basis of race (and presumably any other factor).

Paul's refusal to be clear and forthright was startling in part because he had not, to that point, been using code words or anything that seemed to hint at misdirection in his prior interviews. This was not, it seemed, a matter of getting someone to admit to something that they had been dancing around for months or years. His position was not only clear from his previous interviews, but it is entirely consistent with his philosophical position -- a position that is fully congruent with the neo-Lochnerian position of the libertarian right. This was, in short, not a matter of George H.W. Bush claiming that the "Willie Horton ad" was not really playing on racist fears, or Bill Clinton saying that he did not have "sexual relations" with Monica Lewinsky. This was an interviewer asking a candidate: "You've said on multiple occasions that -- as your broader philosophy suggests -- a major provision of a major civil rights law is wrong because it abridges people's freedom, right?"

What made the candidate's refusal to answer so surprising was that this is a man who represents a group of people who claim to view principled consistency as the highest personal and political virtue. No political correctness (as meaningless as that phrase is) for these people! It is, we are told, time to take our government back from the career politicians who have sold out our freedoms. (That, in fact, was Paul's sound bite from his acceptance speech after his win in the Republican primary on Tuesday night.)

Some readers of this blog have chided me for being surprised when people do not live up to their stated principles, even when their self-image is invested in living up to principles; and this is another case in which I confess to expecting more from someone with whom I strongly disagree. (I had expected the interview to focus on those areas of libertarian ideology with which Paul and a liberal like Maddow might agree: drug legalization, anti-war foreign policy, etc. Paul had, in fact, announced his Senate candidacy on Maddow's show last year; so this was hardly a case of a principled man fearlessly going into hostile territory -- although the post-interview spin is unsurprisingly casting the incident as just that.)

Beyond the hypocrisy, the interview is simply fascinating to watch for the political tap dance that Paul tried to execute. He evaded, dodged, and weaved in a way that would make any political handler proud. Among his defenses: (1) He is not a racist (which is good to know, but it really does not matter whether he personally likes black people when the issue is his critique of a particular law), (2) He likes the rest of the Civil Rights Act, because it prevents government-sponsored racism (which is nice, but it hardly seems relevant to say that he likes 9 out of 10 provisions in the law: Does he also like 9 out of 10 amendments in the Bill of Rights?), (3) Liberals like Maddow might not wish to pursue this issue, because it might result in restaurants and bars being forced to allow people to carry guns (an interesting point, sort of, except that it says nothing about what he views as the right answer to the question), (4) Title II violates the First Amendment's free speech protections (a genuinely bizarre dodge, given both that the law prohibits actions and that this man's backers claim to be all about understanding and upholding the Constitution, yet he betrayed a complete lack of understanding of what the First Amendment means), and (5) this is all old news and not really important (which would imply that a candidate's views on laws that are unlikely to be repealed should be irrelevant to voters, making suggestions that, say, "Obama wants to take your guns away" equally irrelevant).

Finally, it is interesting to note that Paul announced on Wolf Blitzer's CNN show yesterday that he would have voted for the Civil Rights Act, if he had been in the Senate in 1964. This is viewed as a major "walk back" of his position; and in a way it is. During the Maddow interview, however, Paul tried to suggest that one might vote "yes" on a bill even if one disagreed with a part of it, if the balance of the bill was positive. Announcing now that he would have voted yes on the whole bill does not in any way clarify whether he believes that the public accommodations provisions should be on the books.

It seems unlikely that even this extreme position -- a position so extreme that even the most conservative members of his party quickly distanced themselves from it -- will cost Paul the Senate seat that he seeks. He can blame the "liberal media," and the issue might not resonate with voters in his state. No matter what happens in November, however, Wednesday's interview was simply fascinating.


michael a. livingston said...

I didn't see the Maddow interview, but I don't think the overall position of Rand Paul and others like him is that hard to discern. The Civil Rights Laws, at a State and Federal level, have always had to balance private rights and public interests. For example, the laws prohibit people from discriminating in the workplace, but not (say) in their homes or personal life, and (in some cases) private clubs. Paul and his ilk place a greater emphasis on private rights, and would prefer to draw the line further to the public side. It's possible that some of them are closet racists who are using this as an excuse, but this is not necessarily the case, any more than people who question some feminist arguments are necessarily anti-female. What is really happening I think is that the Obama Administration has become so unpopular in many parts of the country that previously outlandish views are becoming mainstream, and--rather than ask why this is happening in a spirit of reflection and self-criticism--it's easier to trash the messengers.

Michael C. Dorf said...

Michael: I think you're right on everything here except for your final suggestion that progressives must look in the mirror. The reason for the unpopularity of Obama and just about all incumbents is blindingly obvious: The economic recovery is fragile, real unemployment is very high, wages are stagnant, and the measures that the government took to avert a depression enriched already-very-rich people, making them understandably unpopular. Everything else is epiphenomenal--which doesn't mean it's uninteresting, which is why I, for one, found Neil's analysis illuminating.

michael a. livingston said...

Well I wish you were right. But I think there's a cultural part too. I think that a combination of Obama's mixed race heritage and identification with the intellectual elite, while a net plus for him with most of the population, has been very hard for a not insignificant part of the population to swallow. I'm thinking of doing a seminar on Leon Blum, the French premier who put through all sorts of socialist legislation in the 1930s . . . and also happened to be Jewish. Blum wound up a hero, and Petain wound up a bum, but a lot of bad things happened in between. Maybe I've been writing on the 30s too long. We'll see.

Michael C. Dorf said...

Oh, I don't disagree about the race/culture part either, but that hasn't changed since Nov 2008. Obama overwhelmingly lost the Appalachian vote in the primaries and the general (same for the white vote more broadly but by much smaller margins). So some of the people now voicing opposition were opposed all along. The reason their ranks have swelled--I'm suggesting--is the inevitable anti-incumbency that arises in tough economic times. Of course, even the swing voters who went for Obama in 2008 but are now swinging against him could be influenced by racial/cultural factors. It's just that those were overcome by other factors in 08.

So we've run out of room to disagree. The Blum seminar sounds fascinating.

michael a. livingston said...

There's a very good peace on the Tea Party movement by Mark Lilla in NY Review of Books. He sees it as the culmination of the social libertarianism of the 1960s and the economic libertarianism of the 1980s: if we don't need Government to regulate the economy or tell us how to behave,the next obvious step is we don't need Government, at all. A thoughtful analysis, scholarship rather than journalism (or at least, good journalism), I highly recommend it.

Hank Morgan said...
This comment has been removed by the author.
Prup (aka Jim Benton) said...

I am not sure which annoys me more, MikeL's turning the discussion of the flaws of libertarianism into a discussion of the idea that "the Obama Administration has become so unpopular in many parts of the country that previously outlandish views are becoming mainstream, and--rather than ask why this is happening in a spirit of reflection and self-criticism--it's easier to trash the messengers" or the fact that MikeD did not call him on the errors in his premise.

The plain implications of the statement are that the Obama Administration has done something while in office to make itself unpopular in the areas that you are both talking about. But that's not true. The Obama Administration was unpopular in those areas before it took office or had the chance to do anything. The claims about the administration have become more and more extreme -- partially due to the growing extremism of FOX -- but 'the soil in which these seeds grow' was anti-Obama from the beginning, and even the wild claims had appeared in the campaign.

The anti-incumbency movement is different, and it would do many of you good to 'click through' when you get a link on a political blog that takes you to local news coverage of 'red state politics.' Both the local stories and the comments do reveal an anti-incumbency mood, but one which is so far right that it attacks Richard Shelby as a 'big givernment conservative,' Lindsay Graham as a 'liberal in disguise' -- and also has attempted to out him, with what justification I don't care -- and has, most astoundingly, but very prominently covered in the local papers discussion of the Paul nomination, condemned Mitch McConnell -- the person most successful in derailing the Obama agenda -- for being too close to the Administration.

The real irony is that there has been a drop off of support -- and enthusiasm -- for Obama, but that has come predominantly from the left, from liberals who condemn him for not moving fast enough to reverse Bush policies, for retaining claims of executive power first put forth by the Bushies, for refusing to prosecute trhem, or for seeking more centrist solutions to the many problems that he inherited, or for refusing to act immediately on something like DADT or DOMA -- and I have some sympathy with the final point.

(There are even a small but loud and influential group of liberal bloggers who have suggested a 'both ends against the middle' strategy in which they'd find allies among the tea partiers and Nordquists against specific Obama policies -- a demonstration, in my eyes, that total raving insanity is not a monopoly of the right.)

But the original post was about Rand Paul. Let's try and get back there with my next comment.

egarber said...

>>What is really happening I think is that the Obama Administration has become so unpopular in many parts of the country that previously outlandish views are becoming mainstream

I don't think this is accurate.

If we define "mainstream" as the American middle, I think we're about to see the very opposite: those outlandish views have certainly fired up the fringe (which has always been there), but they're going to shock the typical American voter.

The more moderate and independent voters hear about the actual positions -- eliminating the fed and the department of education, privatizing or eliminating social security, etc. -- the more they'll be turned off. We just witnessed a powerful example of that with all the double-takes on Paul's opposition to Title II of the Civil Rights Act. The vast middle of the country, who supported candidate Obama when he called for universal healthcare, won't suddenly lurch to the other extreme and support a movement that wishes to eliminate Medicare (or at least should, given its principles)**.

**I'll leave the irony of Medicare being popular among tea partiers for a different discussion.

True, tea-partiers are bursting through some, but (imo) that's only because economic frustration has found an outlet. Even so, there's only so far they can go. There has always been 20% of the population that more or less holds tea-party views. And like an investor who takes advantage of certain market conditions, every once in a while those folks make some inroads. But in my view, those accomplishments are a symptom of circumstance (in this case economic), not a watershed change in the views of most Americans.

In fact, all the demographic shifts point the other way, as it's difficult to see a growing non-white power base in the country at large clinging to those views.