Secrets of the Constitutional Playbook


Leaders of two of the nation's most powerful lobbying groups, from radically opposite poles of the political spectrum, revealed the secret of their successful strategies yesterday at an unusual panel discussion hosted by the Open Society Foundations in New York.

Sitting at the front of a conference room in the headquarters of a foundation owned by billionaire liberal firebrand George Soros, David Keene, former president of the National Rifle Association (NRA) and Evan Wolfson, the president of Freedom to Marry, made for an unlikely pairing.

But in a perhaps unexpected twist, the uneasy peace was marked by the realization that both sides had followed similar campaign playbooks on their paths to success on a national level.

Both argued that if you are hoping to influence the Supreme Court's interpretation of constitutional law, the most critical battlefield is the court of public opinion.

Without a comprehensive grassroots strategy that begins at the state level, a movement's deep conviction that it's in the right isn't enough to justify bringing case after case through the complicated and lengthy legal channels that lead to the Supreme Court, said Wolfson.

“Justices look at the map of states and the map of public opinion,” he said.

Keene observed that knowing how to influence that map is vital to advocacy groups. For even the smallest of elections, the NRA's five million members know they'll receive a familiar orange postcard in the mail, letting them know which candidates the NRA supports and why.

“We endorse something like 4,500 candidates in any given election cycle,” Keene said.

The importance of grassroots organizing shouldn't surprise any serious advocate—but its key role in influencing the Supreme Court is often missed by observers.

Landmark Supreme Court decisions — such as District of Columbia v. Heller, which in 2008 affirmed an individuals right to own a firearm, and United States v. Windsor, which in 2013 barred the federal government from recognizing only heterosexual marriages — could not have happened without years of local campaigning, the panel was told.

Wolfson pointed out that although the Supreme Court exists to interpret whether laws are Constitutional, justices are unlikely to strike down established precedents or laws that have widespread support.

David Cole, the discussion's moderator and a correspondent for The Nation magazine, noted that the Supreme Court is often a final stage for battles that are waged state-by-state.

“Much of the work of Constitutional law has to take place outside of the Supreme Court, outside of federal courts altogether, and in a variety of other forums to make it possible for Constitutional law to change,” Cole said.

In the NRA's case, the campaign to defeat the gun control lobby means reaching out to the vast majority of gun owners who are not members of the NRA.

Keene pointed to the NRA's involvement in helping Wisconsin governor Scott Walker avoid defeat in 2012.

The bid to recall Walker was spurred by a movement of labor unions, but 29 percent of union members and 48 percent of those who lived with union members still voted for him.

Keene believes a lot of union members were spurred by the NRA's depiction of Walker's opponent, Milwaukee Mayor Tom Barrett, “who had always been 'F-rated' by the NRA.”

“We focused only on union members and independents … it turns out that among Second Amendment-friendly union members, which there are a lot of, we got 78 percent,” Keane said.

Compared to the complex arguments that define unionized labor issues, the “F” rating proved to be a simple message.

For his part, Wolfson said the realization that the same-sex rights movement needed to simplify its message was key to garnering widespread acceptance.

“An over-emphasis on legal and abstract rights and benefits, all of which were very real, somehow prevented people from connecting with what was really at the heart of the aspiration, which was love and desire for commitment and desire for families,” he said.

But what about the apathetic or otherwise preoccupied voters who don't pay attention to “F” ratings or messages of equality?

Wolfson and Keene agreed the primary goal was to make them see the costs of having the other side win.

Wolfson argued that can be easier to do for gay marriage than for gun rights.

“When gay people get married, no one gets hurt,” he said, referring to the ongoing debate on gun rights spurred by mass violence.

But after decades of work on gun rights, Keane said the NRA is ready in the moments after a tragedy to “control the narrative” of the national debate.

“Our narrative has been that firearms are part of the American fabric … and our narrative tends to trump the other narrative,” Keene said.

Graham Kates is deputy managing editor of The Crime Report. He welcomes comments from readers. He can be found on Twitter @GrahamKates.

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