The Tea Party and I: Confessions of a ‘Conservative’

January 1, 2012
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Gary L. Greenberg

On November 9, 2011, Ohio voters rendered a split decision for the right and left. By an overwhelming majority (61 to 39 percent), they voted “no” on State Issue 2, thereby rejecting the public sector collective bargaining reform (“SB 5”) enacted by the Republican-controlled state legislature and signed by the Republican governor. At the same time, they approved State Issue 3 (by a 66-to-34 percent margin), which was placed on the ballot as a result of the efforts of Tea Party groups across Ohio. The measure amends the Ohio Constitution to prohibit any “law or rule [that would] compel…any person, employer, or health-care provider to participate in a health-care system” (“Health Care Freedom Amendment”).

Why did the voters deliver these seemingly inconsistent results? What do they tell us about the 2012 presidential election in Ohio?

And why am I, a Reform Jew from Cincinnati, disappointed in the failure of collective bargaining reform and pleased by the Health Care Freedom Amendment?

My “theology” places me squarely on the Reform left, bordering on agnosticism. As a boy, I learned about the horrors of the Holocaust, which caused me to reject any notion of a just or merciful God. Later, as a young man and a student of history, philosophy, and literature, I rejected nihilism and pragmatism in favor of a human-centered personal philosophy based on my conclusion that certain “laws” can be derived from human nature that, if accurately discerned and properly applied, allow humanity to flourish.

I do not believe that humankind can know what God is. Science will never, in my view, understand how the universe, life, and consciousness came into being. Humankind will forever contemplate those core principles, beyond the reach of science, and we can call that theology or philosophy. The Bible is a beautiful and moving example of such contemplation. Because I do not believe that the Bible is, literally, the word of God, I cannot say that it is wholly true, but within the book is the wisdom that all of creation is interconnected — hence, monotheism — and that each human being is endowed with volition — hence, law.

From the notion that every human being has value, we can extrapolate (also from the Ten Commandments) that individuals are protected from the wrongs done by others: murder, theft, false witness, adultery, and the coveting of another’s property. Almost everything we cherish in our Western civilization — the abolition of slavery and serfdom; equal protection and due process of law; freedom of speech, assembly, association and religion; the right of self defense and redress for injury; and private property — would either not exist or would be far weaker without this view that life is sacred.

A detour before returning to modern Ohio: first, to the first book of Samuel, who warns the Israelites of the dangers of a reigning king (“And he will take your fields, and your vineyards, and your olive-yards, even the best of them…”); and second to James Madison, who warned Americans of the danger of an all-powerful “majority” (which can “sacrifice to its ruling passion or interest…the rights of other citizens”), and whose legacy informed a constitution of enumerated (i.e., limited) powers, divided government, federalism, and, eventually, the Bill of Rights and the 14th and 15th amendments.

In 2011, we are debating whether the federal government has the constitutional authority, or moral right, to require each and every adult American to buy a particular product, in this case, health insurance, in the name of the “common good.” The economic costs and benefits of the federal takeover of the health insurance industry have been and will continue to be endlessly debated. But the cost to our freedom is clear: It is an enormous taking of our (to use Samuel’s words as metaphor for our life choices) “fields, vineyards, and olive-yards.” If the federal (or any) government can command our purchase of any product or service, as long as there is a “rational” basis for concluding that it would serve the “common good,” then my existence as a conscious, volitional human being is largely erased; I am merely an appendage of the political process that can and eventually may decide my almost every move.

Moreover, socialized markets reduce the quality of products and services — and innovation withers. The “invisible hand” that allocates resources based on efficiency and patient/consumer preference will be replaced by the dead hand of government, which will allocate health-care resources based on political influence and rationing. While the hand of government is already wrapped around half of our health-care system, market-based reforms could serve to lower costs by getting government out of the insurance business and allowing the purchase of coverage across state lines. Government subsidized vouchers could help the poor and elderly buy health insurance, and state-run high-risk pools could cover the otherwise uninsurable. While this is not my pure, free-market ideal, it would make helpful reforms politically palatable to the many who would insist that a safety net remain in place. Those who choose to be uninsured would continue to be directly billed for services rendered.

The U.S. Supreme Court will soon decide whether the mandate that individuals buy health insurance is constitutional. At issue is the power of Congress to regulate interstate commerce. Given the precedent set 70 years ago in Wickard v. Filburn, which held that Congress may limit crops grown by farmers for consumption on their own farms because it “affects commerce,” those of us who oppose the individual mandate hope that the court will overturn Wickard and instruct Congress that its commerce power is limited to regulating goods and services that actually travel between states. Regardless of how the Supreme Court decides, I view the individual mandate as morally reprehensible, and part of a federal government takeover of health care that will do great harm, and that is why I supported the Health Care Freedom Act. In my view, any mandate by any level of government to buy a product or service, merely because we exist, is indefensible. (I would, though, distinguish the mandate to purchase a reasonable amount of auto insurance in return for the privilege of driving motor vehicles on public highways.)

My support of State Issue 2 is based on the same motivations that put my support behind State Issue 3. In the early 1980s, the Ohio legislature gave enormous power to the unions that represent state and local government employees. Public safety employee unions were given the power to have their union contracts written by unelected third-party arbitrators if agreement could not be reached with the elected governing body. Nonpublic safety employees were given the right to engage in strikes, picketing, and work stoppages that would disrupt essential public services. The result has been an enormous increase in the cost of government, which inevitably requires higher taxes, more borrowing, or cuts in services. In the meantime — even before the 2008 recession — Ohio’s economy stagnated. Today, government employees are no longer public servants, because the taxpayers and citizens no longer have final say over what they cost and how they perform their services. SB 5, the collective bargaining reform law that was cancelled by the “no” vote on State Issue 2, would have restored to the citizens, through their elected representatives, this authority. Under SB 5, public safety unions would no longer have had the power to use unelected third-party arbitrators to overrule the elected governing body, and the nonpublic safety unions would no longer have had the power to coerce public employers by disrupting essential services. (There were other provisions in SB 5, but these were the most important, and the most controversial.)

I respect the work done by our police and fire departments, teachers, sanitation workers, and other public employees. But a bloated and unaccountable government work force erodes our freedoms in countless ways; it is essentially a form of taxation without representation. Nonetheless, the majority of my fellow voters did not see it the same way; SB 5 was repealed. The unions effectively (although in my view disingenuously) attacked SB 5 as a threat to public safety based on the argument that reducing union bargaining power would result in more deaths and injuries — even though there is no evidence that in states with little or no government employee collective bargaining, people are less safe. They won; my side lost.

What does this off-year election portend for 2012? The Democrats take heart from the repudiation of SB 5; they believe a reinvigorated labor movement will help their cause. While I agree that organized labor is reinvigorated, I’m unconvinced that will have much effect on the presidential race in Ohio next year. A substantial number of Republicans and conservative-leaning independents voted for State Issue 3 — to repudiate the signature achievement of President Obama — but also voted “no” on State Issue 2 — in order to “support their local police.” I do not see how this bodes well for President Obama in Ohio, especially if unemployment here remains at or above 9 percent and the Republican presidential candidate appeals to centrists and independents without alienating the conservative base.

Interestingly, although Jewish voting and contribution patterns in Ohio appear to follow the pattern in the rest of the country, i.e., predominantly Democratic, especially among the non-Orthodox, a rising star in the Republican Party in Ohio, and nationally, is State Treasurer Josh Mandel, from suburban Cleveland. He is expected to be the Republican nominee in 2012 for the Senate seat currently held by Democrat Sherrod Brown. An unabashed conservative who advocates lower taxes, less government, school choice, and domestic energy development, Mandel appears to enjoy more support in the Jewish community than would be expected for someone with his views. This means either that non-Orthodox Jews are more open to conservative/free-market political philosophy when advocated by someone they identify with, or that tribalism trumps ideology. It could be some of each.

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Gary L. Greenberg, a labor and employment lawyer, is a partner at Denlinger, Rosenthal & Greenberg in Cincinnati, Ohio. He is a board member of the Jewish Federation of Cincinnati and president of the federation’s Jewish Community Relations Council. A member of the Federalist Society, Greenberg serves on the boards of the AIPAC Cincinnati Council and the Hebrew Union College–Jewish Institute of Religion.

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