State Capture and Defending Faith: Inattention, Ideology, and Interests

I recently wrote a book review in Interest Groups and Advocacy here contrasting Matt Grossmann’s Red State Blues and Alexander Hertel-Fernandez’ State Capture on the role of parties and interest groups in changing state policies

State Capture had interesting similarities with another book I read in the fall, Daniel Bennett’s Defending Faith. Bennett explores the role of Christian conservative interest groups in changing public policy through the court system. Hertel-Fernandez shows how state-level interest group politics have stealthily changed meaningful public policies and the ability of Democrats to win in national elections, while Bennett argues that culturally conservative interest groups are minimizing their social issue losses with new and potentially successful legal strategies. Both have data on the role of voter inattention, ideological malleability, and group rivalries in interest group success. 

Voter Inattention

State Capture investigates the activities of three conservative interest groups – the American Legislative Exchange Council (ALEC, founded in 1973), the State Policy Network (SPN, 1992), and Americans For Prosperity (AFP, 2004). Public inattention to state legislatures relative to Congress provides the “troika” with more avenues to change state level policy than they have to influence national policy, which is more heavily scrutinized by politicians and the news. With smaller staffs and less spare time, state legislatures are more susceptible to the troika than members of Congress or the President.

According to Hertel-Fernandez, the troika exploits not only staffer inexperience but voter inattention. Despite having a profound impact on politics, ALEC and its allies have only occasionally been subject to the public limelight. One exception occurred with the shooting of Trayvon Martin in 2012 and his subsequent acquittal in 2013. Four states had passed identical “stand-your-ground” laws, each proposed by state legislators who were members of ALEC. Liberal unions used these laws as a focal point for attacking ALEC, and the negative publicity forced many businesses were forced to withdraw their support.  Even in this case, many businesses subsequently supported ALEC again when public attention subsided.

While State Capture focuses mainly on economic conservative groups and legislative strategies, Bennett’s Defending Faith catalogs social conservative groups and legal strategies. Supreme Court decisions since the 1960s have protected individual rights to culturally liberal lifestyle choices, including birth control, abortion and same-sex marriages. Christian conservative groups have been unable to pass laws consistent with traditional “family values” at the state level without being challenged in court on the basis of federal legal precedents. Groups like the American Center for Law and Justice (founded in 1990) and the Alliance Defending Freedom (1994) arose to challenge these decisions, thereby giving family values activists more room to pass their desired social legislation. Bennett summarizes the activities of a network of groups fighting to change constitutional jurisprudence “conservative Christian legal organizations” (CCLOs).

Like the troika, CCLOs have exploited voter attention by switching from the losing Christian values frame to the more marketable “religious liberty” frame in which religious groups could practice socially conservative beliefs in their own enclaves. Cases like Planned Parenthood vs. Casey and Obgergefell vs. Hodges showed that CCLOs could not win their original objectives of upholding state antiabortion and traditional marriage laws. As with “family values,” religious liberty is a framing more acceptable to the general public than Christian conservatism. CCLOs’ contemporary agenda can be distilled down to the concept of “religious liberty,” “highlighting how their advocacy strengthens constitutional protections for all Americans” (127) by expanding first amendment rights for conservative Christian interest groups. The Religious Freedom Restoration Act (RFRA) created a legal argument for conservatives to be exempt from culturally liberal policies. Liberals passed RFRA to uphold the right of religious minorities to practice their religion even when in conflict with secular laws. Building on these arguments, CCLO lawyers have argued that evangelical Christians are now an embattled minority who find it difficult to practice their faith. They force liberal litigators to draw distinctions between the exercise of religion by conservatives Christians and the that of the groups they sought to protect with RFRA. Thus far, federal courts have largely disagreed with these distinctions. As a result, the expansion of women’s rights and gay rights group agendas have been circumscribed by the court’s interpretation of RFRA and the First Amendment.

Ideological Constraint

Both State Capture and Defending Faith show the lack of ideological constraint among interest groups, setting aside broader principles for religious identity or partisan advantage. For example, ALEC, AFP, and SPN sometimes advocate for limiting government in business, but at other times support regulations that work in businesses’ favor. CCLOs fight for the right of Christians to practice their religions, and endorse an expansive definition of free speech that protects even the Westboro Baptist Church. When Islamic groups sought to build a religious center near Ground Zero, however, CCLOs switched to a sensitivity frame and focused on how the center would make victims of 9/11 feel. Some groups support the filibuster when Democrats form the Senate majority, but oppose it when Republicans are in the majority. Along the lines of my book First to the Party, they claim that interest groups lack tight ideological constraint in the face of organizational pressures and efforts to fit in with the more sympathetic party.

Organizational Rivalries

Defending the Faith investigates the role of organizational rivalries that sometimes get in the way of collaboration on common interests. Some CCLOs fight for “personhood” laws for fertilized embryos and “heartbeat bills,” while others support incremental change such as waiting periods and parental notification. Using the RFRA defense, some interest groups defend companies who refrain from providing contraceptives viewed as abortifacients. One lawyer at ADF told Bennett “I sometimes scratch my head at the personhood initiatives, and another at National Right to Life said groups should not develop legal strategies on the assumption, without evidence, that the swing justice will change his mind (85-87). One of the most interesting contrasts in the book is between organizations that enfold free exercise arguments into free speech claims and organizations that claim that they are giving up potential victories in the future by not pushing free exercise claims further. Interviewed activists allude to the desire for each organization to represent plaintiffs in important cases, but in the end, merely whet the readers appetite rather than providing definitive answers. Subjects did not want to discuss which cases they fought over, probably hoping to avoid reigniting old feuds for the sake of scholarship. A lawyer for the National Legal Foundation said “We all want the good case, the juicy case, the test case,” while other interviewees said “I’d rather not go there…Hopefully it’s water under the bridge” (125). 

State Capture offers more documentation because ALEC is remarkably transparent to its members about how its task force priorities are set. Donors who contribute more to an ALEC task force has more say in that task-force’s direction, and task forces are not allowed to work at cross-purposes. Solar energy companies, for example, withdrew from ALEC when it was clear that fossil fuel industries would continually outspend them. Enron and Edison disagreed about whether to allow energy companies to compete across state lines, and Enron ultimately prevailed by donating more.

There is room for additional research about interest group interactions and influence on public policy. Defending Faith relies primarily on press releases and interviews, while State Captureuses interviews, archival sources, text analysis, and investigative journalism. In the case of Defending Faith, not all CCLOs even have online press releases, and many of the interview subjects are not forthcoming. As a result, Bennett largely has to accept interest groups at their word; that being said, Bennett is up front about the limits of his work. The advantage to using older interest groups, as I did with the NAACP and CIO in First to the Party, is that long-declassified internal communications enabled me to examine how much group activists agreed with their group’s public agendas in private. Did donors have a role in steering some organizations in more pragmatic directions? If donors and group leaders disagreed, how were the disagreements resolved? Short of this information, Bennett might have supplemented his analysis with actual court transcripts, amicus curiae, and social media. Do the press releases accurately represent what the organizations argue for in court, or distort them using a framework more acceptable to the media?

Writing a book about interest groups is a Herculean task even when they are forthcoming, which they often were not for these authors.  If you open State Capture or Defending Faith to any random page, you do not have to read for long to find fresh evidence for students of interest groups, presented accessibly. They provide new evidence that interest groups adapt to their strategic environment, taking advantage of intense followers and diffuse voter inattention to obtain victories when they can.

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