When Laws Become Partisan Weapons

Many of our intractable policy disputes are little more than rumbles between battling political tribes.

The political culture war briefly erupted yet again last week when Sarah Palin posted a photo of Kid Rock, Ted Nugent, and herself at the White House, mocking defeated presidential candidate Hillary Clinton's official portrait from her years as first lady.

At a guess, the eruption over the White House photo was mission accomplished for President Trump's dinner guests. Whatever their past political and musical accomplishments, the trio seemingly exist now primarily to represent their own political tribe and to provoke the opposition. That's a pretty easy gig given that Americans are not only increasingly alienated from each other's politics, but also from each other's lifestyles and cultural markers.

You don't have to look too closely to see a disturbing lesson here in how this empowers the country's dominant political tribes to effortlessly taunt each other by waving cultural flags—or putting the legal screws to lifestyle choices that aren't overtly partisan.

"For the first time in surveys dating to 1992, majorities in both parties express not just unfavorable but very unfavorable views of the other party," Pew found last summer. "And today, sizable shares of both Democrats and Republicans say the other party stirs feelings of not just frustration, but fear and anger."

Anger? How do you get so angry at your neighbors and beer buddies over how they cast their votes?

Except that they're not neighbors, they're not buddies, and many members of America's political tribes don't just think differently, they live differently.

In the lead up to the presidential election, The Washington Post reported that surprisingly few Trump supporters knew Clinton voters, and vice versa. That seems bizarre until you read that the newspaper's survey "also found cultural differences between Clinton voters and Trump voters, reflected in their ties to guns, gays and even hybrid vehicles," and that "the separation here seeps into the micro level, down to the particular neighborhoods, schools, churches, restaurants and clubs that tend to attract one brand of partisan and repel the other."

This continues a phenomenon noted by Bill Bishop, author of the 2008 book, The Big Sort. "Beginning in 1992, the percentage of people living in landslide counties began an upward, stairstep progression," he wrote of Americans' geographical concentration into like-minded communities. But those ideological migrants didn't necessarily check voter registration records and pick houses in neighborhoods with critical masses of Rs or Ds. Instead, they "were reordering their lives around their values, their tastes, and their beliefs. They were clustering in communities of like-mindedness." As it turns out, a preference for living in open spaces tends to correlate with voting Republican, while Democrats have a marked preference for walkable urban neighborhoods. Hobbies, tastes, memberships, and religious practices also take divergent paths.

As people settle into these chosen lifestyles-and-politics package deals, they tend to become more like what they've selected and to associate contrasting choices with the "enemy," according to researchers.

"When cultural tastes in turn have a reciprocal effect on personal networks, such divisions are likely to be even further exaggerated, leading to a starkly divided world of latte-sipping liberals and bird-hunting conservatives," Daniel DellaPosta, Yongren Shi, and Michael Macy of Cornell University wrote in "Why Do Liberals Drink Lattes?" a paper published in 2015 in the American Journal of Sociology.

Which is why Kid Rock, Nugent, and Palin really have to do little more than show up to get opposing tribe members all upset. They're walking red flags to Team Blue.

The other side plays the game, too. Lena Dunham and Amy Schumer can relieve their boredom any given day by posting something to Twitter about abortion or guns. They'll generate the usual social media storm, secure in the knowledge that there's little risk in playing to their ideologically simpatico fans.

But taunting opponents is just good clean fun, right? It gets more dangerous when you can target people who believe the "wrong" things by sending the law after activities they tend to like and your side generally disdains. Policy choices then become a means of punishing opponents, with no other justification needed.

One of the more overt recent examples was directed not at one of the major political tribes, but at libertarians—maybe because we're perceived as safe targets. After all, our whole shtick is that we won't ban or restrict the things other people enjoy, so we're unlikely to retaliate.

"What we can do is to make the environment here so unwelcoming that some will choose not to come, and some may actually leave," in the words of a former New Hampshire Democratic state representative who actively disliked the libertarian Free State Project. She added, "One way is to pass measures that will restrict the 'freedoms' that they think they will find here."

You rarely get such an overt advocacy of political targeting through legislation. But you do often see pastimes—like latte-sipping and bird-hunting—associated with political blocs. The Prius is "the most liberal car ever," according to the Seattle Times, although Tesla has a strong following in the same circles. And former presidents and pollsters alike agree that conservatives cling—bitterly or otherwise—to their guns.

That means targeting some pastimes and products disproportionately inconveniences political opponents, while leaving allies relatively unscathed.

That may largely explain the eternal push from Team Blue for ever-greater restrictions on firearms even though, despite a blip last year, violent crime rates remain far lower than they were 20 years ago. There's ample evidence that gun restrictions that do get passed are overwhelmingly ignored. So there's little justification for expending political capital on a pointless goal—unless the real targets are not so much guns or the crimes committed with them but the conservatives who own them at a rate almost double that of liberals.

Likewise, a weird spate of state-by-state restrictions on the direct sale of cars to consumers by Tesla captured headlines, and questions about "why?" Then MarketWatch put together a map in 2014 showing that "nearly twice as many blue states as red states allow Tesla Motors Inc. to sell its cars directly to customers." So, Team Red lawmakers have oddly deep concerns about the direct-sales model? Or are they just trying to stick it to political opponents via restrictions on a car that has become a status symbol for moneyed liberals?

And what to make of Attorney General Jeff Sessions' interest in reviving marijuana prohibition at a time when state after state is legalizing the stuff for medical and recreational use? Does he really believe that "many lives are stake"? Or does he anticipate political gain in going after a substance that he sees as favored primarily by his political opponents?

That politics and policy can be weaponized is no secret. Former President Obama openly urged his supporters to "punish our enemies" and the current president reportedly began assembling an enemies list even before winning the recent election. Wisconsin prosecutors repeatedly raided political opponents' homes as an exercise in intimidation in recent years. They perhaps took their lead from the not-so friendly tax collectors at the Internal Revenue Service, who have a long history as political hit men.

Now that lifestyle and political affiliation correlate so closely, it's awfully easy to taunt the "enemy" by waving a few cultural banners in their faces—or by putting legislation to partisan use. Why run afoul of protections for free speech, thought, and assembly when you can just torment people by piling restrictions on the things they enjoy in life? You can camouflage the targeting as a policy dispute, even though your teammates nudge-and-wink understand that it's all about sticking it to the latte-sippers or bitter clingers.

Weaponized law. How can that go wrong?—except in every conceivable way.

The tribes and their lifestyle and cultural differences appear to be here to stay. But if they can't learn to play nicely even when they've voluntarily separated themselves, maybe it's time to clean up the political landscape by minimizing the role of law and law enforcement in people's lives. A little cultural flag-waving is just fine, but it emphasizes very real tribal divisions that raise the stakes in policy disagreements. Law is too dangerous a tool to leave in the hands of opposing tribes who just want to use it to bludgeon one another.