LOS ANGELES – Election law, like political science (which I also teach) is something of an oxymoron, particularly in the heat of a political season.
Try as you might, virtually every issue of election “law” that comes up during a political campaign is so thoroughly infused with the politics of winners and losers that anyone who pretends to be taking a principled position should immediately be considered suspect.
So it is, or has been, with the recent dispute between the Culinary Workers Union that supports Barack Obama and the teachers union that supports Hillary Clinton over the at-large, casino caucus sites for this weekend’s Nevada caucuses.
This is not about democracy. It is not about fairness. It is about winning.
In case you missed it, the two sides had been embroiled in a court battle about whether those who were working in casinos on caucus Saturday should be permitted to vote in special “at large” caucus sites established in the casinos for those who were at work and presumably couldn't or wouldn’t take time off to go home and attend their local caucuses. On Thursday, a federal judge refused to shut down the nine at-large sites. The refusal of an appellate court to step in meant that there was more than one kind of horse trading, as it were, going on along the Strip Saturday morning.
Now, it’s possible to make principled arguments on both sides of this dispute, about small “d” democracy and whether it is served when workers and their bosses and union leaders caucus together in the open in the middle of the work day at the work site.
You could argue that it’s not exactly the ideal forum in which a person can exercise his fundamental rights to freely vote for the candidate of his or her own choosing. Or you could argue that it’s the least that should be done to ensure that working people, many of whom don’t get Saturdays off in a town that is open for business 24 hours a day, have the same chance as professional people who control their own hours to participate in the selection of their candidate for president.
But don’t kid yourself. What side you took was bound to be determined by whose ox got gored. Take my word for it: if Hillary had been endorsed by the Culinary Workers, and Obama had not been, his friends would have challenged the caucus, and she would have been singing its democratic praises.
That’s why it is, in one sense, unfair for Obama’s friends in the union movement to have attacked Hillary for trying to disenfranchise them in so-called independent ads which have neither been sponsored nor condemned by the Obama campaign. The ads, which had been airing on Spanish language radio, took Hillary to task for supporting the lawsuit against the at-large sites.
According to a translation provided to the press by Hillary’s campaign (imagine that!), the ads claimed: "Hillary Clinton does not respect our people. Hillary Clinton supporters want to prevent people from voting in their workplace on Saturday. This is unforgivable. Hillary Clinton is shameless."
The union which ran the ads defended them in a public statement condemning Hillary:
"We can't think of a more negative and disgraceful political tactic than publicly supporting a lawsuit that would disenfranchise thousands of workers, bellhops, dishwashers, housekeepers, recent immigrants who've just become American citizens," Chris Bohner, a union representative, said. "The ad intends to point out the fact that the Clinton campaign is supporting this lawsuit, which is entirely appropriate, and we completely stand by the ad. We've waited for the Clinton campaign to denounce the lawsuit, and they didn't."
For their part, Clinton aides argue, shockingly enough, that Obama is the hypocrite here, because he criticized ads from outside groups with ties to John Edwards when they aired during the campaign in Iowa, but has been "strangely silent” now that a labor union attacked the Clinton campaign.
According to Clinton campaign spokesman Phil Singer, "In Iowa, Sen. Obama and his campaign went out of his way to attack labor unions for independently promoting other candidates. But in Nevada, he's looking the other way as they falsely attack his opponents."
Strangely silent? Not even close. In Iowa the ads were helping his opponent. In Nevada, they were helping him. Just as Barack’s friends would have brought Hillary’s lawsuit if their positions were reversed, so Hillary would have taken the help of the unions, and Obama would be condemning them, if the sides were reversed.
There is no principle here except the old one that Vince Lombardi used to celebrate, the one that holds that winning is the only thing. The only false note is the shock that everyone expresses when they find that, yes, there is gambling in Casablanca. And in Vegas. And in politics.
To the winner goes the spoils, and the loser goes to court. Call it what you will, but I call it politics.
Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.
Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System” and "Making the Case for Yourself: A Diet Book for Smart Women.”
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for FOXNews.com.