While conservatives try to win by convincing voters they are right on the issues, leftists manipulate the rules so they can win no matter who is more popular or persuasive on the substance. That was the message last Thursday from noted election lawyer Cleta Mitchell, reiterating at the Heritage Foundation’s Resource Bank in New Orleans a message she has been promoting for quite some time. Mitchell is right. Process really matters. Until conservatives master the process, they won’t win.
The day after Barack Obama was elected president in 2008, I wrote that Obama and his leftist allies would do all they could to “rig the process to make it next to impossible for the political right, or Republicans, to recover.” Specifically, I warned that the Obamites would find ways to steal several Senate races where votes were still being counted; eliminate the filibuster in at least some instances; liberalize election laws to make vote fraud easier while charging conservatives with “vote suppression”; criminalize protests at abortion clinics; try by hook or crook to reinstitute the ironically named Fairness Doctrine or its regulatory equivalent; and, yes, conduct “invasive IRS audits of conservative think tanks, other conservative 501 organizations, and PACs.”
Those weren’t psychic predictions; they were just analysis informed by long experience.
Again and again, leftists work to ensure either that rules work to their advantage or that they don’t work at all. Rules are there to hobble the other side, not to apply to themselves.
Without subverting our own ethics, conservatives should learn some of the leftists’ lessons. This advice comes with an important warning, however. The trick to concentrating on process is this: Look like you’re doing something else. Anybody who loudly complains about rules per se comes across as a whiner, a pettifogger, a noodge. All too often, when conservatives focus on rules, they ruin their efforts by making this very mistake.
When Senate conservatives were considering the “nuclear/constitutional option” in 2005 to prohibit Democratic filibusters of Bush nominees, they offered all sorts of convoluted explanations about why requiring a supermajority to approve judicial nominees was unfair and inconsistent with the Founders’ thinking. Leftists, meanwhile, just kept pounding home the message that the Republican nominees were scary and extreme.
Guess who won.
Having lost that battle, conservatives last fall might have imagined that they could win when it came to saving the filibuster, which Senate Democrats — directly contradicting their earlier position — now wanted to kill. Republican lawmakers (also reversing course) trotted out all sorts of arguments about why the filibuster is the bulwark of minority rights and an essential tool of republican (small “r”) governance. The leftists knew they couldn’t win the philosophical argument and understood that the judges they were pushing would be unpopular, so they argued neither on process nor on substance. They just acted, putting in place a historic rule change that ends the filibuster, except for Supreme Court nominees. Then they moved on.
Sometimes, when the power is in your hands, the best argument to make is no argument at all: Just do what you need to do. For the leftists, what matters is that the rules be made to work in their favor, not that the public buy into the change. While they go about altering the rules, they talk about outcomes or change the topic to other matters altogether. Arguing about rules and the minutiae of procedure is for losers. Making the rules work for you, or changing them until they do, is for winners.
This is not to say that people insist on controlling rules only because they seek partisan advantage. Rules ought to be neutral and fair; conservatives believe they have an ethical obligation to follow this principle. But this is to say that rules are of crucial importance, and that sometimes a little indirection is the best way to establish reasonable rules.
The public cares about results more than rules. The best way to win a fight over rules is to explain why one’s preferred rules will achieve better results.
If conservatives want to keep Obama from abusing the rules that govern recess appointments, we must explain why his bogus “recess” appointees to the National Labor Relations Board will do horrible things to the economy. If conservatives want to guard against IRS abuses, we must explain why any citizen should fear special scrutiny based on his viewpoint.
Regardless of how we do it, though, conservatives must engage in battles over the rules that govern political battles. Conservatives cannot progress without a focus on process, even while keeping the public spotlight on results.
— Quin Hillyer is a contributing editor for National Review. Follow him on Twitter @QuinHillyer.