If this site had a single mind, it would be in half a good mood today -- a day where people can finally Tell but still can't DREAM. The DADT battle turned out to provide a wonderful lesson on the two kinds of paths one can take to civil rights victory: persuasion and force. We fought a lot here about the critical moment where Obama chose the path of persuasion over that of force -- that was when the Justice Department chose to appeal the Riverside County judge's order closing down DADT globally. I took a lot of abuse from my GLBT friends here for saying that it was the right move at the time. With Obama's plan now more or less having worked as intended, I think it's a good moment to see how the possible outcomes could have differed -- and also to note that persuasion and force are not necessarily antagonistic, but can work hand-in-hand.
And maybe there are lessons here for the DREAM Act as well: like, can Obama issue an Executive Order as C-in-C?
Persuasion and force are, in the civil rights context, roughly equivalent to "legislative victory" (through persuasion) and "judicial victory" (through judicial order.) For the former, one wins by wangling acquiescence to a change; for the latter, the change is imposed as a matter of right.
(Note: Sondheim fans may be squirming at this moment with the desire to note another well-known reference to this dichotomy, so: I'm quelling any extended reference to Fredrik Egerman's song "Now" in A Little Night Music, which addresses this theme in a non-policy context, but there's some insight there as well, creepy as it is. Save it for comments. The application of these terms in a sexual context is a bothersome distraction for the argument I make today, but I gain nothing from pretending it doesn't exist. Suffice it to say: different rules apply, obviously, and that's all I'll say in the diary text.)
1. The usefulness of force
The famous victories of the civil rights movement, of which today's vote adds another trophy to the case, have come about through both persuasion and force. We forced elimination of de jure ("by law") segregation of public schools in Brown v. Board of Education, and we forced legalization of early and mid-term abortion in Roe v. Wade. We didn't really have much choice in either case. The path of persuasion -- which, famously, Ruth Bader Ginsburg has lamented our not having chosen in the case of abortion -- was not realistically open to us. And justice was, in both cases, on our side -- so we imposed it.
The problems (as well as the obvious benefits) of liberals using force in legislative victory -- and I do not think that this applies equally to both sides due to psychological differences between liberals and conservatives -- are evident in the development of school desegregation law and abortion law after Brown and Roe.
School desegregation never really went away. It still substantially exists in de facto form in many parts of the country. Its echoes are heard in declining support for funding public education (given that one way to attain segregation is through private, often religious, education.) On the upside, the enormous legislative and judicial victories of the civil rights movement in the 60s and 70s were the direct progeny of Brown. Take away Brown, and it's not clear that we ever get those later court decisions and the landmark legislation discussed below.
Abortion availability has fared better -- especially if you don't live in a rural county or in a red state -- but the lesson of Roe is that winning by force means that in some cases the opposition will never give up. I don't think it's necessary to give examples. We can look at an analogous right -- the right to die -- where Ginsburg, again an advocate of civil rights victory by persuasion rather than force, helped spike efforts to establish the ability to choose death as a civil liberty. She said that she wanted to see things go through the states. And, particularly on the upper west coast, they have -- not as strongly as would have been the case had there been a Roe-style decision, but neither is the opposition to this idea as powerful.
2. The advantages of persuasion
Now compare the above to the Civil Rights Acts of 1964 and 1967, the Voting Rights Act and the Fair Housing Act of 1965, etc. These still face criticism and obstruction, but they are not as controversial as Roe or as poorly implemented as Brown. One main reason is that we won fair and square. The public, or at least its representatives, were persuaded to accept change. The fight -- save for some dead-enders, the equivalent of today's John McCain -- was over when the bill was signed.
Winning by persuasion has its distinct advantages. The problem is that this path is not always available to us. Take a look at what happened to the DREAM Act today. We almost were persuasive enough -- but not quite. Had we won, though, the issue would have been set to rest in a way that won't happen if, say, Obama imposes rules pursuant to Commander-in-Chief powers, as Bush-Cheney might have done for a different cause were they still in office.
Persuasion is slow. Persuasion is messy. Persuasion often involves compromise in the result. Persuasion often involves eating crap on the way to the result. But victory through persuasion tends to be lasting.
3. How persuasion and force work together: the case of DADT
At their most effective, persuasion and force work together.
In a negative vein, this is what imperialist powers have done to their subject states ("agree what we want or your agreement won't matter") and what organized crime does to small merchants ("pay us protection money 'voluntarily' or suffer the consequences.")
They work together towards positive ends as well, though. I'm not the first to point out that Gandhi's persuasive efforts to end British rule over India were bolstered by the prospect that, if his peaceful approach failed, violent alternatives were inevitable. The same was true of Martin Luther King (you don't hear the phrase "race riots" much anymore, but I grew up with it on the news) and Nelson Mandela. When people do things like march in the streets and chain themselves to fences, the message being sent is that they have the will and ability to exert force if peaceful change becomes impossible.
So it is with the courts. Sometimes, a legislature votes for something because legislators know that the alternative is a judicial fiat over the shape of which they will have much less influence.
District Judge Virginia Phillips played a significant role in the passage of DADT with her order that enforcement of it stop. She also played a significant role in almost killing it. I don't think we'll ever know which was more significant. Aside from uneasiness about this sort of global order, the only criticism I have of Judge Phillips's order as a political activist is the one that as a lawyer I know is illegitimate: I wish that the decision had come out later, so that the Obama Administration did not have to make the fatal (and reviled) decision of whether to appeal it before a vote was taken. Judges are not supposed to be concerned with the political timing of justice.
By making the decision when she did, though, Phillips forced the Obama Administration to choose between ending DADT by force versus by persuasion. They choose persuasion. As suggested above, there were good reasons to choose persuasion. If we can imagine the alternative future where DADT didn't even come up for a vote this year (at the urging of Democratic Senators who didn't want to have to deal with it) because Phillips's non-appealed order supposedly rendered such a vote unnecessary, I think we can see reasons why that future is inferior to what we have now.
4. Obama wins his chess match ...
As I argued at the time, Obama did have a plan here -- and it was a good one. The "fix was in" on the process. He knew -- he must have known -- that the report would be a good one. He knew that a good report would give the Senate the ability to put this controversy to rest, which is exactly what happened. The benefits of this extended beyond DADT. Because we as a society have decided to let gays and lesbians serve openly in the military, we can better built on this development in future fights -- DOMA, ENDA, and application of all federal laws -- than had victory been won by force. It must piss Obama off tremendously to be characterized as anti-gay, because this victory -- this planned victory, one that required him to be the bad guy with respect to the exercise of force -- is another "big fucking deal." The victory in the military will have social and legislative repercussions down the line.
I'm also one who believes -- and I despair of being able to convince people here of this but, seriously, some very smart progressive legal scholars are with me on this one -- that the "victory" obtained by force (and, let's face it, guile) in not appealing the Phillips ruling would likely have been short-lived. It was a clever possible tactic, but there were equally clever countermeasures available over the course of years. So that was another reason to follow the path of persuasion. It's not clear what could have happened if this vote had failed. A (reversible) executive order, sure; an attempted withdrawal of the appeal, perhaps. But -- because it was forced to choose -- it made sense for Obama to stick with Plan A, with Plan B in the back pocket, rather than going for the tempting but troublesome Plan P (for "Phillips.")
5. ... but at what cost?
I want to give those who disagreed with me at the time (and who still may) their due, though: Obama almost lost. In fact, I think there's a good argument to be made that there were two pre-conditions for this victory that we'd rather not have paid -- and if gaining this victory required them, we might have been better off with Plan P.
Here you have to ask yourself a question: If the tax cut "compromise" hadn't passed, and if the omnibus bill hadn't failed, would the five Republicans who made the difference in this vote still have supported cloture?
I don't know that at least the tax cut compromise wasn't a necessary condition for winning DADT by persuasion rather than force. If so, that was a horrible price to pay. On the other hand, if the tax cut compromise was going to pass anyway, then tacit understandings -- that's how things often work, by the way, in case you're new to politics -- that it would garner some votes for DADT at least takes away some of the bitterness of that defeat.
I don't think that such a trade, if it came to that, was part of Obama's plan. But somehow he and Reid (and Lieberman, god help us) got it done. If these developments were coupled -- or if this only became possible only because of the humiliation of the Democrats (and soon Obama) on the omnibus bill -- then I'm not going to play the game of whether the trade was worth it. This was an important victory and those were important defeats: we recognize the new state of play and we move on.
I will say one thing about Obama's rejecting "Plan P," the non-appeal of the Phillips ruling. Had that happened, then the survey that came out of the military would have have been nearly as important or nearly as noticed. And that survey, I believe, will pay off in ways we can barely anticipate in the years to come. And this, I believe, was part of the plan -- so it must be weighed against the above costs.
6. DREAMING of the use of force
So where does this leave us with respect to the DREAM Act? This was the last chance to use persuasion successfully on this issue for a while (unless the filibuster rule is eliminated next session, which is unlikely.)
If you've been paying attention, you know that it leaves us with two options: nothing, or force.
We've won the public debate over the DREAM Act (other than in some states like, oh, Montana and North Carolina.) But it hasn't gotten through. That's a great time to use force -- because we're not using force to go against popular will, but to achieve its victory.
So, what can Obama do? Well, I haven't seen much discussion of this, but it seems to me that he could use an executive order here, acting as Commander-in-Chief.
One of the reasons why this bill is important -- one reason that it's in the NDAA to begin with -- is that it makes it more attractive for these long-term "unauthorized residents" (that's a term I'm trying out on you guys here as more accurate and less tendentious than either "illegal immigrants" or "undocumented workers") to join the military. So, Obama as C-in-C can say: they get to serve in the military. But that's not enough -- because someday Obama won't be President anymore, and these people will have already shown their cards, becoming easy pickings for a future administration. So, to make an effective executive order to build the military (and, incidentally, higher education, if that can be horned in too), he has to not only lock the door against future removal proceedings, but throw away the key.
How could he do that? Well, he could order that all information on citizenship status of armed service members (1) not be collected and (2) if collected, be destroyed. I'm sure that there might be other measures he could take as well.
One can apply the "force vs. persuasion" analysis above to decide whether this seems like a good approach. My intuition is: yes! Your analysis may differ. But if you think about the problem this way -- the way, I believe, Obama thought about the problem of implementing DADT -- then at least you'll be approaching it in a useful way.