an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What's Ted Cruz up to? Is he a political idiot or a political savant? Many people have argued that his antics, however well designed to appeal to the Tea Party and the Republican primary voting base, also seem equally well-designed to anger his Republican colleagues in Congress, "establishment" Republicans and organs of opinion like the Wall Street Journal editorial page, and, perhaps more important, big business and big money donors whose support Cruz will need if he runs for President in 2016. And what he is doing won't stop Obamacare. So it seems like his strategy of pissing off all of his colleagues in the Senate is doomed to failure and he is just being intransigent for the hell of it.
But let's suppose Cruz sees something (or is betting on something) that his opponents in the Republican Party don't see. Then his actions make a lot more sense. He is not a terrorist or a bomb thrower. He is a Leninist. He wants to sow discord among his erstwhile allies so that he can seize control.
Suppose you thought that the Republican coalition is fracturing, that traditional Republican leadership can no longer hold the party together, and that the leadership is too willing to capitulate to its political opponents on the left. Suppose you are also convinced that Obamacare will be a freaking disaster, and once this becomes apparent to the public, they abandon the Democrats in droves and look for an alternative.
If so, then what Cruz is doing makes some sense. Cruz wants to take over the Republican Party. He could try to organize the Tea Party as a third party, but that is a risky proposition, and it could easily fail. As Sandy likes to remind us, representational systems like the one we have in the United States-- with its first past the post rules--are generally unkind to third parties.
It's true that the Whig party fell apart in the early 1850s and was succeeded by the Republican Party, but since that time no third party has won a majority of either House of Congress or the Presidency.
The prudent move is not to trash the Republican Party and build a new third party. It is to take over the existing Republican Party's operations and transform it in the image of the Tea Party, with the goal of eventually becoming the dominant party once again. That is why Cruz is attacking his fellow Republicans for being weak-kneed and insufficiently devoted to the conservative cause rather than doing what you would think a hard right politician should be doing-- that is, attacking liberals and Democrats. He is deliberately fracturing the Republican party so he can take hold of the largest piece of it.
In some sense this is a repeat of the conservative movement's playbook from 1964 on: push moderates out of the Republican Party and make it a wholly owned subsidiary of the conservative movement.
As George W. Bush would say, Mission Accomplished. The moderates are mostly gone. George H.W. Bush and Bob Dole would be RINOs today and even Ronald Reagan would have to be sent to a re-education camp to extinguish his dangerously liberal tendencies toward raising taxes and disarmament. When the press talks about mainstream conservatives today, this is a misnomer. Mainstream conservatives aren't moderate at all-- they are very, very conservative in relation to the Republicans of days gone by. What distinguishes "mainstream" Republicans is that they are not much interested in what they see as the Tea Party's suicide mission.
Enter Cruz. He sees that what is now called the Tea Party has actually been gaining dominance in the Republican Party for some time. He notes the success of Sarah Palin in exciting the primary voting base. He also notes that the Tea Party increasingly controls the primaries and that elected Republicans are more afraid of being attacked on their right (in a primary) than on their left. Thus, he notes that the wing of the party he wants to lead increasingly has the other parts of the party cowed. He likes that. He likes it a lot.
True, this brand of no-holds-barred conservatism is losing a few voters at the margins, but so what? Once these squishes are gone, the Tea Party can exert even greater control over the more ideologically pure remnant, which will be known as--wait for it--the Republican Party. Cruz plans to be the political leader of that party. Then, when Obamacare runs aground-- as Cruz and every other true believer knows it will-- the people will come begging for a savior. The savior will be none other than Ted Cruz, the man who (literally) stood up to Obamacare and made opposition to it his signature issue.
Of course, no plan is foolproof, especially revolutionary plans. Things could go wrong. Cruz may have miscalculated about Obamacare. It might turn out to be more popular than he thinks. (That's why it's important to sabotage it in every way possible.) He may also guess wrong about the direction of history. By accelerating discord within the Republican Party, he may be undermining the country's best chance at conservative governance for years to come.
Cruz and his friends could be like the New Left, attacking old style liberals and setting fire to the Democratic Party in the hopes of fashioning a more radically left Democratic Party out of its ashes. That strategy didn't turn out very well. In fact, that may be the best way to understand Ted Cruz. After a long period of conservative dominance, he wants even more. He's a bit like political radicals in the 1960s and 1970s who made life miserable for centrist liberals like Hubert Humphrey and, later Jimmy Carter, because they were quite certain that they could fashion a more ideologically pure Democratic Party that would lead America into a brighter future. They did not count on the political revolution from the right that was about to hit them, sending them into the political wilderness for many years.