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John C. Eastman- Contributor

Dr. Eastman is a Professor of Law at Chapman University School of Law and Director of the Claremont Institute Center for Constitutional Jurisprudence. The views expressed here are his own.

The Spoiler
Pragmatism or momentum?
[John C. Eastman] 9/13/03

With three and a half weeks to go before election day, it remains clear from polling data that Cruz Bustamante, Governor Gray Davis’s lieutenant, has even less support from the electorate than his fellow Democrat facing our first-in-history recall. With good reason. If, as seems to be the case, voters are angered over Davis’s sell-out to special interests at the expense of the fiscal and moral health of the State, they are beginning to realize that Bustamante offers more of the same, maybe worse. His recent acceptance of a massive, legally dubious $2 million donation from Indian tribes bent on securing favorable treatment in gaming negotiations has only confirmed what most voters already suspected: the Governor’s mansion is going to have to be occupied by someone of distinctly different bent in order to provide the adult supervision necessary to keep the excesses of the state legislature in check.

That means, of course, that Republicans have an unusual opportunity to demonstrate the merits of their own governing principles to voters who so very recently had been written off by national Republican strategists. They could not do this with five serious challenges to the Davis/Bustamante status quo, however. In such a field, Bustamante’s 30% support levels would be sufficient to prevail. And although withdrawals by Darrell Issa, Bill Simon, and Peter Ueberroth have narrowed that field to two, the conventional wisdom, bolstered by the polls, remains that Bustamante will prevail unless one of the two drops out. “Tom McClintock, don’t spoil Arnold’s victory,” is the almost uniform chorus from the party’s pragmatic establishment.

As will become clear at the California Republican Party convention in Los Angeles this weekend, the establishment view is wrong, for several reasons. First, it misunderstands the dynamic of this election. Arnold Schwarzenegger, who has higher name recognition in outer space than most politicians have in their home towns, has polled in the mid 20% range ever since he entered the race. When Issa dropped out, McClintock bounced from 5 to 8%; Arnold remained in the mid-20s. When Simon withdrew, McClintock bounced from 8 to 12%; Arnold remained in the mid-20s. And when Ueberroth appreciated the magnitude of this loss of support following his debate with McClintock and withdrew, McClintock again bounced from 12 to 18%; Arnold remained in the mid-20s. The story here is that this has always been a three-way race: hard-core Democrats supporting Bustamante; solid Republicans supporting a variety of Republican candidates until, after a mini-primary of sorts, they have settled on McClintock; and star-seekers of all stripes enjoying the Arnold sensation. As disaffected but still undecided voters, angry at the excesses of Sacramento, begin to focus on the October 7 election, it is unlikely they will break toward Bustamante once they discover he is the heir apparent of the Sacramento establishment. But it is equally unlikely they will significantly break toward Arnold the celebrity, whom they already know and yet have remained undecided despite that knowledge. Much more likely, as attention focuses on McClintock’s expertise and anti-governmental excess platform, that a good number will break McClintock’s way.

The problem for the Republican party, then, is not that Tom McClintock will spoil Arnold’s victory party, but that Arnold may well spoil McClintock’s, and the Republican’s. Because of Arnold’s movie career and resulting public persona as the gun-wielding “Terminator,” the star-seekers in his camp seem to be drawn more from the pro-Second Amendment Republican ranks than from the anti-gun Democrats, despite Arnold’s own support of gun control. Arnold’s withdrawal, then, would redound significantly more to McClintock’s benefit than Bustamante’s, and a recent poll commissioned by the Orange County Lincoln Club and reported in news accounts this week demonstrates that McClintock would defeat Bustamante in a head-to-head race.

The same Lincoln Club poll shows that Arnold would also defeat Bustamante in a head-to-head race, of course, and hence the cross accusations of “spoiler” that we hear coming from both camps. With each individual in a position to “spoil” the victory of the other, the only legitimate question is which of the two is more likely to represent the principles of the Republican party. And here is the second ground on which the party establishment is wrong. The clear answer, as will become manifest at this weekend’s convention (if it is not already), is McClintock. He will better articulate those principles not only because he is better at articulating them, but because he actually believes and agrees with them—not just some of them.

A quick comparison of the two candidates’ positions and the most recent Republican Party platform confirms the point. On the three incendiary “GAG” issues—guns, abortion, and gays—Arnold opposes the Republican Party’s position. Although he claims to support the Second Amendment, Arnold supports the Brady bill, “assault weapons” bans, and other restrictions aimed at undermining Second Amendment rights; the Republican Party platform, and Tom McClintock, back up their support of the Second Amendment by opposing such restrictions.

Arnold supports abortion, and “would make no changes to [California’s existing family planning] policy”; the official Republican Party position, similar to Tom McClintock’s, is that “As a country, we must keep our pledge to the first guarantee of the Declaration of Independence. That is why we say the unborn child has a fundamental individual right to life which cannot be infringed.” While no state official can ignore the current Supreme Court precedent on abortion, the candidates’ different positions will undoubtedly have an effect on how they respond to legislation that is within the state’s province. In California, the current fight is whether Catholic hospitals, doctors and nurses can be compelled to perform abortions in violation of their own religious beliefs. Does anyone really believe that Arnold would be as effective an opponent of that legislation as McClintock (if he would oppose it at all)?

Similarly, Arnold supports “gay rights”; the Republican Party platform and Tom McClintock have opposed special protections on the basis of sexual orientation. Although, given the Supreme Court’s recent decision invalidating Texas’s anti-sodomy law, no state official can attempt to criminalize sodomy between consenting adults in the privacy of their own homes, the fight has now moved to gay marriage and to how homosexuality is advanced in schools. Legislation effectively negating Proposition 22’s rejection of gay marriage, and legislation compelling schools to teach the virtues of homosexuality, is moving toward the Governor’s desk. Where will Arnold stand? Not with Tom and the Republican Party, I dare say.

The pragmatic Republican Party establishment views Arnold’s rejection of the Party’s principles on these issues as a virtue, of course, but here again they have failed to appreciate the full meaning of the voters’ anger. The voters recognize that the “live and let live” claims of the ideological left have been mere pretext; the real intent has been to foist on an unwilling citizenry causes with which most people continue to disagree. The anger is against government—Big Brother knows best, order-every-aspect-of-our-lives-except-anything-having-to-do-with-moral-principal government. The fiscal issues that Arnold touts are just a derivative; government needs more and more money to feed its ever-expanding efforts to force compliance with its agenda.

But even if the so-called fiscal issues could be divorced from the underlying cultural issues, Arnold is a dangerous gamble for the Republican Party. Although he now says that he vigorously supports Proposition 13, one suspects that some of the new-found vigor is the result of his own top economic advisor’s position to the contrary. And while Arnold has begun to parrot Tom McClintock’s stands on the car tax, workers’ compensation, and the state budget fiasco, no one really believes that Arnold even begins to approach the technical and principled expertise on these issues that Tom McClintock brings to the table.

So, the question for the Republican Party delegates this weekend is whether they will permit someone to spoil their best chance at vindicating the principles of their own party, or whether they will give a well-earned endorsement to Tom McClintock (and encourage Arnold to bow out for the good of the Party he claims to be a member of). One suspects that the pragmatists might have the upper hand, but as a wise former professor of mine was fond of saying, the problem with pragmatism is that it doesn’t work. Will the delegates appreciate that advice in time?

copyright 2003 John C. Eastman




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