Wednesday, October 05, 2005

(Don't Look At) The Plan Behind the Curtain

Part II of III in the Indiana Turkey Baster Bill Expose

In (Straight White Christian) Married Couples Only, we looked at the bill before the Indiana Health Finance Commission that is ostensibly intended to regulate surrogate parenting and infertility treatments. An examination of the wording of the bill reveals that it will also criminalize pregnancy in the case of unauthorized fertility treatments; discriminate against single women and same-sex couples by denying them basic reproductive rights and outlawing their access to (otherwise) safe, legal medical treatments (fertility treatments); and disproportionately deny basic reproductive rights and criminalize fertility treatments for African Americans.

The Republicans' goals for this bill (henceforth to be known as the Turkey Baster Bill), however, are far greater than just assaults on civil and reproductive rights. In this second post, we will examine the how this bill exemplifies Republican wedge issue strategies in action, as well as the reasons why unconstitutionality fails to nullify the political power of the bill.

Republican Wedge Issue Strategies

The Turkey Baster Bill is not unique in its assault on women, the GLBT community, and African Americans. If you pay attention to legislation affecting gay civil rights or reproductive rights, you will know that Republicans regularly introduce equally ridiculous and unconstitutional bills across the country. What you may not realize is that, regardless of the substance of the bills, regardless of the constitutionality of the bills, and regardless of whether or not the bills pass, Republicans get political traction out of these bills.

Obviously, this particular bill, and bills like it, are political red-meat for the Republicans' core fundamentalist voters: the feminist-hating, racist, homophobic religious right. Unfortunately (for all of us), the religious right doesn't recognize political pandering when they see it. Many of these bills are so absurd, poorly worded, and preposterously unconstitutional, that they have no hope of ever passing in a state legislature. When the bills fail, right wing Republicans get to put on their martyr act, and tell their right-wing voters that the "family values" (sic) bills were defeated by evil, America-hating Democrats. The religious right seems to fall for this song and dance routine consistently--enough so that they keep supporting Republican politicians who make them big, empty promises but actually deliver relatively few results.

However, red meat for the religious right is still just a happy byproduct of the bills for Republicans. These bills are really mail. And attacks on vulnerable Democrats.

Here's how the sting works:
  • Republicans introduce an offensive, discriminatory, unconstitutional bill, on a hot button topic or "wedge issue," such as gay rights or reproductive rights.

  • Democratic members of the General Assembly who are in "safe districts," meaning districts that have a consistent history of supporting Democrats at 65% or better, generally vote across the bill on party lines.

  • Democratic members who are in "swing districts" (45% to 65% Democratic support) face a "damned if they do, damned if they don't" dilemma. If they vote with the Democratic party against the bill, even on the grounds that the bill is unconstitutional, you know for certain that in their next election year, Republicans will be sending targeted direct mail to swing voters. For votes against anti-abortion bills, the mail goes out to Catholics (CB Latinize), with a message that "Candidate X is a baby killer." For votes against anti-gay bills, the mail goes out to conservative churches (CB African Americans) saying "Candidate Y loves gays." And, typically, the GOP is successful with these tactics, using wedge issues to pry away swing voters, and defeat Democratic incumbents. On the other hand, if swing district Democrats vote against the Democratic Party position and with the GOP for these horrific bills: 1) the politician alienates his or her base; 2) the "unpassable," unconstitutional bill is more likely to pass; and 3) come the next election, the GOP finds some other pretext, which may or may not be true, to attack the candidate anyway.

  • In the next election, Democratic voters, especially the alienated base, typically have low turn out rates, and only turn out to vote if candidates run effective Get Out The Vote (GOTV) programs--which take money (=happy donors) and volunteers(=happy grassroots base). On the other hand, Republican Christian right voters, who are all fired up over the red meat pandering, very loyally and consistently exercise their rights to vote--in the parlance of the trade, "they GOTV themselves."

  • The end result: Republicans use this pattern effectively, consistently, and predictably to unseat incumbent Democrats.
  • In this political Catch-22, it would seem to make sense to act like an opposition party and fight like hell against the bills, but the received wisdom is to roll over for the GOP. As a result, a surprising number of these bills pass.

    Let me reiterate: if the Turkey Baster Bill makes it to a floor vote in 2006, which is not uncoincidentally a state election year in Indiana, watch for Democrats, especially Democrats in swing districts, to vote for this bill.

    Because, at the end of the day, getting re-elected is more important that good governance, more important than your civil rights, and more important than preventing the criminalization of pregnancy.

    Unconstitutional Bills

    Reactions to this breaking story around the blogosphere have included many expressions of relief that the bill can't pass because it is unconstitutional. That relief is premature, unwarranted, and dangerous. As stated above, many of these bills are unconstitutional, but they still pass. Either they pass on party line votes, or because enough Democrats vote for them to seal the deal.

    The justification for supporting the bills within state Democratic parties is often the same: "Don't worry if you vote for it, it's unconstitutional. It will never stand up." And herein lies the fallacy of the just justice system.

    When politicians pass bills they know are unconstitutional, or unenforceable, they are passing responsibility for legislation on to the court system and to their state residents. Because unconstitutional laws don't just fall off of the books. Unconstitutional laws stay enshrined in state legal systems until citizens take it upon themselves to mount a court challenge. Court challenges can take a huge amount of money, and, depending on who is sitting on the bench, there is no guarantee of a win.

    In other words, in America, you have constitutional rights provided you can afford to pay for them.

    And Republicans count on the cowardice of Democrats, and the injustice of the justice system, to put unconstitutional laws and keep them there just long enough to provide the legal and political precedent for the next assault.
    Case In Point: Indiana's Gay Marriage Ban

    In January of this year, the Indiana Court of Appeal ruled that there were no constitutional problems with Indiana's ban on gay marriage. The Indiana law was not substantially different from the Massachusetts law, which the Massachusetts Supreme Court ruled unconstitutional.

    Incidentally, in their ruling on gay marriage, the Indiana Court of Appeal wrote that "marriage was the way in which biological drives were directed into socially accepted activity, all so children will be provided with a stable environment." This legal precedent does not bode well for a court challenge against the Turkey Baster Bill.

    Court challenges of the Turkey Baster Bill may go all the way to the Supreme Court. In fact, a Supreme Court challenge may be the ultimate Republican objective for this bill.

    But, this post is getting long, so we will leave the story of Harriet Miers, the Supreme Court, and the Little Turkey Baster Bill That Could, for the third and final installment of the Turkey Baster Bill series.

    Cross posted at BOP
    The Full Turkey Baster Bill Series

    Part I Intro to the Bill
    Part II Republican Strategy
    Part III Bill Update
    Part IV Supreme Court Resource Roundup

    This article is also cross-posted on BOP News. Please feel free to join the discussion there as well.

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