Bear with me – this is a long one.
The First Amendment protects freedom of association. Freedom of association is one of the less understood protections, because it’s one of most recent protections that has been teased out of the First Amendment by “activist” judges. The Supreme Court first found a freedom of association in the First Amendment in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), written by Justice John Marshal Harlan, one of the conservatives on the super-liberal Warren Court.
This is one of the many ironies of the convention vs. primary fight – the primary constitutional argument against primaries and in favor of conventions is based on a First Amendment right that isn’t actually found in the text of the First Amendment. That kind of interpretation of the Constitution is often decried as judicial activism by some on the far right – often by the same people who claim conventions are better than primaries. And the freedom itself was constructed by a conservative member of an ultra-liberal Supreme Court, often referred to as that Court’s “great dissenter”, as liberal Justice William Brennan would be dubbed decades after Harlan earned the moniker.
Politics makes strange bedfellows, indeed.
The freedom of association, as explained by the Supreme Court, has a corollary right to exclude others from associating who may not believe in or support the fundamental agenda of the organization. This freedom to exclude is a commonly cited reason why those who favor conventions do so – they desire to exclude anyone who isn’t a Republican from choosing our nominees. It is under this constitutional imprimatur that convention supporters make their case.
These supporters usually have a variety of reasons to promote conventions over primaries, but the “purity” ideal is front and center. The specter of large numbers of Democrats crossing over to pollute our nomination decisions continues to haunt most pro-convention advocates. Because Virginia doesn’t register party affiliation, the only effective way to be sure only Republicans have a say is through conventions. The number of hoops one must jump through in order to earn the franchise for nomination is high enough to deter all but the most ardent crossovers from participating.
But all of these arguments are predicated on a flawed assumption – that we can easily determine who is and who isn’t a Republican.
In Virginia, it doesn’t take much to be a Republican. The Republican Party of Virginia’s Party Plan provides as good a definition of a Republican as any: “All legal and qualified voters … who are in accord with the principles of the Republican Party, and who, if requested, express in open meeting either orally or in writing as may be required their intent to support all of its nominees for public office in the ensuing election…” are considered Republicans.
What does being “in accord with the principles of the Republican party” actually mean? It’s almost impossible to determine. Those principles have changed over time quite a bit, and people from a variety of walks of life and ideology have called themselves Republicans. The best I can come up with would be someone who accepts the Creed of the Republican Party of Virginia, but even that is open to interpretation. At the end of the day, RPV allows anyone to participate who effectively says they’re Republican and will pledge to support the Republican nominee in November. In fact, the qualifications to vote in a Republican primary are exactly the same as participating in a convention, at least according to the RPV Party Plan. Non-Republicans shouldn’t vote in Republican primaries, either.
This textbook definition has led to some absurd results, such as federal House Majority Leader Eric Cantor, Lt. Governor Bill Bolling, Attorney General Ken Cuccinelli and state House Speaker Bill Howell all being expelled from the party for endorsing Bill Janis, who ran as an independent against the late Matthey Geary, who won the Republican nomination for Henrico County Commonwealth’s Attorney. I doubt anybody would question any of those men their Republican credentials. Yet they had those credentials stripped of them for violating a party rule. But they remain Republicans and never lost their roles in our party structure. If that’s the case, where does one really get their “Republican credentials?”
This is a tough question. Because we don’t have party membership in Virginia no one can claim to be a “registered Republican,” although we hear that claim far too often by residents of the Commonwealth. Because there is no accepted list as to who has claimed association with the Republican party and no organized body gets to make final decisions on who is and who isn’t a member, we’re led to guessing, trying to divine the intent in one’s soul through past actions.
We look at a lot of different things. Voluntary organizations people have joined, public statements they’ve made, their voter histories, their political giving histories, who they work for, their volunteerism and what they say and do politically, and so forth. But in the end, it’s almost impossible to know for sure where someone’s loyalties lie or if they harbor some mental reservation or purpose of evasion when the claim the mantel of Republican.
It’s especially tough when talking ideology, because people’s opinions change over time and with experience and party orthodoxy changes, too. Ronald Reagan, the paragon of virtue to most conservatives, began his political life as a New Deal Democrat and Union president. In Northern Virginia, we’re now hearing that former Congressman Artur Davis, the man who seconded Barack Obama’s nomination for President in 2008, has renounced his membership in the Democratic Party and declared himself a Republican. While we can scoff at his new-found religion, there’s no real way to contradict him. If he believes he’s a Republican and wants to join our party, he’s welcome to. He says he’s a Republican now. As long as he’s willing to support our nominees in the fall, that’s good enough for RPV. If he decides to run for Congress, though, I doubt it will be good enough for the party faithful.
The fact that it’s hard to define who a Republican is certainly doesn’t stop people from trying. The folks who run around attacking “RINOs” – Republicans in Name Only – certainly think they have figured it out. I often get called a RINO because I work for a labor union and support unions, despite the fact that my stance is grounded in my belief in limited government. Despite my having been a Republican nominee for office, having attended a half dozen conventions, served in party office, and been a Republican presidential appointee, contributed money exclusively to Republicans, that doesn’t stop the RINO charges from sprouting every time I challenge party orthodoxy on some point or another.
And these same people are often on the convention side of the debate. Why? Because they demand that only Republicans of sufficient fortitude and “dedication” be given the ability to nominate our party’s candidates for office. Their mortal terror at the idea that a Democrat might dirty the pool of nominators runs so deep that they would rather exclude thousands of good Republicans from having a say in who our nominees are rather than allow one Democrat to invade and vote.
This convention argument is fundamentally flawed because it assumes that being a Republican is immutable – that it’s something that doesn’t change over time. It also assumes that being Republican is something that can be measured like height or weight. But it isn’t – it never has been. Even someone, in the privacy of the voting booth, can cast a ballot for a Republican and still not be one. And when you have party stalwarts getting kicked out of the party for violating the Party Plan, its clear to me that the definition of Republican on paper leaves much to be desired.
In my opinion, using conventions to exclude only the most ardent is a bad idea. It leads to group-think, and it requires so many philosophical contortions that it becomes almost absurd when you think about it. The only difference between a primary and convention is the ease with which voters obtain their credentials to vote – primaries just require you to show up at a polling place and ask for a ballot. Conventions require forethought and planning.
In the end, only the voter truly knows what is in his heart of hearts. I, for one, am willing to take him at face value.
