Things To Act
Tuesday, July 20, 2004
The Politics of Losing
One of the silliest criticisms leveled against supporters of the FMA is that it was a 'waste of time' with so many other pressing issues on the national agenda.  Anyone seriously making that argument is likely either appallingly ignorant or deliberately deceitful.  It's not as if Congress is known for being a hallmark of efficiency, and it's certainly not as if every minute spent thinking about domestic policy is a minute that Senators won't be spending working on national security--reelection fundraisers or even normal business-as-usual pork are going to take up large amounts of available discretionary time.  In any event, Senators show up to vote and/or to make speeches for the C-SPAN cameras--they don't sit on the floor listening to debate, and don't expect their arguments to change the minds of their fellow Senators (changing minds is reserved for private conversations, in which wheeling and dealing can proceed without undermining everyone's reelection chances).  The argument that 'we can put this off 'til later' is not only deceptive, but plays on the side of those who are trying to force change through the courts.
The only reason for anyone to be squeamish about the leadership's decision to force a vote on the FMA, and to put the issue in the headlines, is because it draws public attention to the issue.  And politicians of both parties are notoriously uncomfortable with having their activities drawn to the attention of the public if said activities are out of step with public opinion (or even if said activities will be wildly unpopular with significant blocs no matter what actions are taken).
That said, public opinion does not appear to be in favor of the FMA in proportions high enough to let it pass.  This doesn't seem likely to change immediately either--even if pro-FMA forces managed to organize and vote as a bloc, it would likely just promote counter-organization by FMA foes.  The FMA appears unlikely to get out of Congress as long as the status quo is maintained.
The only change to the status quo likely to have much effect, then, would be further judicial overreaching.  If a federal court overturns DOMA or mandates SSM, the backlash might be enough to propel the FMA (or an alternative like the Hatch proposal) over the top.  A significant number of state courts taking similar action might be sufficient as well, but this seems less likely if MA alone couldn't change people's minds.
Paradoxically, the pro-SSM forces' best hope is to go slow, enjoy the fact that the courts have shifted the status quo to their favor, and let the issue simmer for a while before trying to expand into a few more states.  Defeating the attempt to amend the MA constitution to restore the old status quo would help their cause as well.
For the anti-SSM forces, a win in a few state amendment battles might help, but probably won't generate enough momentum by itself (unless marginal pro-SSM Senators consistently lose, and wavering Senators are concentrated disproportionately in amending states).  Ironically, a win in MA would undercut the rationale for the FMA.  On the other hand, a decisive lose of an anti-SSM amendment in any state might also undercut the rationale for FMA--at a minimum, it would give a lot of strength to the federalism arguments, if the courts uphold DOMA.
In any event, my current impression is that while the state-level battles may affect things at the margins, the actors to watch at this point are the courts. 

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